Filed 7/7/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A161691
v.
NATHAN CHRISTIAN WANDREY, (Sonoma County
Super. Ct. No. SCR7209161)
Defendant and Appellant.
Nathan Christian Wandrey was convicted of numerous counts of sex
offenses committed against the daughter of his then-girlfriend, and sentenced
to consecutive aggravated prison terms totaling 756 years. Several of his
arguments on appeal arise from the fact that he was charged with and
prosecuted for numerous separate but undifferentiated offenses after being
held to answer on a single count of continuous sexual abuse of a child and
single count of committing a lewd and lascivious act on a child. Wandrey
additionally argues the victim’s generic testimony was insufficient to support
the verdicts; the trial court’s requirement that witnesses wear masks
covering their noses and mouths violated his constitutional right to
confrontation; and the trial court erred in failing to conduct an in camera
review of subpoenaed documents and in its instructions to the jury. He also
raises several claims of sentencing error. We find the challenges to the
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts I through IV.
1
convictions meritless and reject the challenges to consecutive sentencing. We
agree, however, that remand for resentencing is required due to
postsentencing statutory amendments affecting the imposition of upper
terms.
STATEMENT OF THE CASE
A complaint filed on October 12, 2018, charged Wandrey with one count
of continuous sexual abuse (Pen. Code, § 288.5, subd. (a))1 in a three-year
period from April 2012 to April 2015, with a substantial sexual conduct
enhancement (§ 1203.066, subd. (a)(8)); one count of committing a lewd act
upon a minor (§ 288, subds. (a) & (c)(1)) between April 2015 and April 2017;
and one count of contacting a minor with intent to commit a sexual offense
(§ 288.3, subd. (a)) between April 2016 and April 2017. Following a
preliminary hearing, Wandrey was held to answer on the first two counts; the
court found insufficient evidence to support the third count.
On July 9, 2019, an information was filed charging Wandrey with 272
counts, the odd numbered counts alleging assault with intent to commit a
sexual offense against a victim under 18 years of age (§ 220, subd. (a)(2)),
alternating with even numbered counts alleging commission of lewd acts
upon a child (§ 288, subds. (a) & (c)(1)). The offenses were alleged to have
been committed in four specified time periods: April 2012 to April 2013
(counts 1–48), April 2013 to April 2014 (counts 49–96), April 2014 to April
2015 (counts 97–220), and April 2015 to April 2016 (counts 221–272).
The trial court overruled Wandrey’s demurrer. The trial court also
denied Wandrey’s subsequent motion to dismiss (§ 995) as to all counts
through 220; as to counts 221 through 272, the trial court granted the motion
1Further statutory references are to the Penal Code unless otherwise
indicated.
2
to dismiss all the counts alleging violations of section 288, subdivision (c)(1),2
and all but 10 of the counts alleging sexual assault.
The first amended information, filed March 18, 2020, alleged a total of
230 counts. Counts 1 through 220 alternately alleged assault with intent to
commit a sex offense against a victim under 18 years of age (odd numbered
counts) and commission of lewd acts upon a child (even numbered counts)
committed as follows: On or between April 2012 and April 2013 (counts 1–
48); on or between April 2013 and April 2014 (counts 49–96); and on or
between April 2014 and April 2015 (counts 97–220). Certain of the counts
alleging commission of lewd acts further alleged that Wandrey engaged in
substantial sexual contact while committing the offense (§ 1203.066,
subd. (a)(8)) (even numbered counts 26–48, 74–96, 122–220).
Counts 221 to 230 alleged assault with intent to commit a sex offense
against a victim under 18 years of age on or between April 2015 and April
2016.
Wandrey pleaded not guilty and denied the special allegations.
During trial, the court granted the prosecutor’s motion to dismiss
counts 1 through 48.
On November 16, 2020, the jury found Wandrey guilty on counts 49
through 72 and 97 through 230, and found true the enhancement allegations
in the even numbered counts from 122 through 220. The jury deadlocked on
counts 73 through 96. The trial court declared a mistrial as to these counts
and subsequently dismissed them on the prosecutor’s motion.
The motion to dismiss was granted as to the counts alleging violations
2
of section 288, subdivision (c)(1), because that offense requires that the
defendant be 10 years older than the victim and no evidence of Wandrey’s age
was presented at the preliminary hearing.
3
On December 4, 2020, the trial court denied Wandrey’s posttrial motion
to dismiss counts 49 through 72, and sentenced him to an aggregate term of
756 years in prison.
STATEMENT OF FACTS
Jane Doe, born in April 2001, was 19 years old at the time of trial. She
testified that she was “very stressed” being in court; it was hard to talk about
what had happened and “incredibly hard” to be in court because, “I have to be
so close to the source of my trauma in the same room.” Memories from her
childhood were “on [her] mind all the time” and “really intrusive.”
Doe testified that her mother began dating Wandrey when Doe was
about nine years old. Doe came to think of Wandrey as a father figure
because he paid attention to her, fed her and taught her things like cooking
and personal hygiene that her mother, whom Doe described as mentally
unstable, had not taught her. Doe was closer with Wandrey than she was
with her mother: He treated her as a person instead of a baby, as her mother
did, spent more time with her, and gave her more attention.
As Doe got older, Wandrey would ask her about changes in her body.
When she was around 10 years old, he asked how large her nipples were,
which at the time Doe thought was “weird.” She testified this was the first
time she “vividly remember[ed]” him being sexual with her, but “it was just
verbal.”
Doe, her mother, and Wandrey moved from Santa Rosa to a new
neighborhood when Doe was in sixth grade, 11 or 12 years old.3 Doe’s mother
3Doe initially recalled the move being around the end of sixth grade, so
estimated she was “maybe 10” years old. After referring to charts showing
her age and the school grades she was in for each year of her life, she testified
that she would have been 11 and 12 years old in sixth grade and that she
4
became “very bitter”; she and Wandrey started arguing more and spending
less time together. Wandrey spent more time with Doe and began to be
“more physical” with her when her mother was not nearby. Starting around
the second or third month after the move, Wandrey would have Doe sit on his
lap while she played computer games; when she sat on his knees, he would
tell her it was okay to “scoot back” and sometimes pull her back with his
hands. This made her uncomfortable, but she tried to ignore it. Around a
month later, Wandrey began to give her “what he called massages,” which
started at Doe’s shoulders and “would evolve to underneath my shirt on my
breasts.” Doe described a time when she was sitting at the piano bench and
Wandrey started to massage her this way, inhaling loudly every so often. He
told her the massages were “normal” and “natural” and she believed him
because she trusted him. The massages happened “[m]any times.” During
the first year after the move, when Doe was 12 years old, Wandrey would
touch her chest “[p]robably three times a week,” but “[i]t could have been less
or more.” There would be weeks when it did not happen at all, as Wandrey
sometimes stayed at his own home and went to Hawaii for a month or two
each year to see his family. Doe agreed with the prosecutor’s suggestion that
the three times per week she estimated would amount to approximately 150
times that year and testified that Wandrey “definitely” touched her chest “at
least 12 times” that year.
Doe testified that the chest touching “evolved” into Wandrey coming
into her room and touching her vagina.4 He would “start over my underwear
thought the move was before her twelfth birthday (i.e., in Apr. 2013), but was
not sure.
4On cross-examination, Doe initially testified that she was sure the
vaginal touching was happening when she was in eighth grade (when she
was 13 to 14 years old), and thought it began in seventh grade (when she was
5
by rubbing the top part of my vagina and then he would continue under my
underwear and he would put his fingers inside of my vagina repeatedly.”
Sometimes Wandrey would touch her legs or “butt” or back, but he would
then move to her vagina. Doe would sometimes try to “squirm away,” but
usually she “would just freeze,” feeling there was nothing she could do. She
felt “just completely overpowered” because she knew he exercised frequently
and practiced martial arts, and she started to become afraid she might get
hurt if she did not let him do what he wanted.
Asked if she remembered every time Wandrey touched her in the way
she was describing, Doe testified, “They happened so frequently that a lot of
them just blur together.” Wandrey would sometimes touch both her chest
and her vagina in one incident, but usually it was one or the other. Once it
started, the vagina touching became much more frequent than the chest
touching. Doe testified that “[i]t felt like it happened every day to me” and
estimated that Wandrey touched her vagina at least 100 times during the
year she was 12. This was an approximation, but he “definitely” touched her
vagina “at least 12 times” that year.
The “massages” continued when Doe was 13 years old. She blocked
them from her mind; when she tried to think about it, it would be “really
confusing because I trusted him so much and I didn’t want to think that what
he was doing was wrong.” She estimated that Wandrey touched her chest
“[m]aybe once a week” when she was 13, but “definitely” at least 12 times.
He touched her vagina three or four times a week: “[W]henever he was home
it would happen.” This estimate would mean Wandrey touched Doe’s vagina
12 to 13 years old), but had trouble remembering at what point in seventh
grade it started. She then testified that she knew it happened in seventh
grade and it “could have been” the beginning or middle of that school year.
6
approximately 152 to 208 times the year she was 13. Doe testified he
“definitely” touched her vagina at least 50 times that year.
When Doe was 14, the touching continued and Wandrey started giving
her very strong alcoholic drinks, almost always at night before bed. She liked
the feeling of being drunk and would fall asleep easily. That year, Wandrey
continued to touch Doe’s chest, but not as frequently; he continued to touch
her vagina “very frequently,” every time he was home. She estimated it was
more like four times a week than three, and “definitely” at least 10 times that
year.
Asked if, after she moved to the new neighborhood and started seventh
grade, there were days when she saw Wandrey and he did not touch her in a
sexual way, Doe responded, “occasionally.” It was hard for Doe to remember
“exactly” how many times the sexual touching happened because “it was so
frequent” and, because the incidents were all “very similar,” they would “blur
together.”
At some point, Doe realized what Wandrey was doing was wrong, but
before that she just felt “deeply uncomfortable.” When she realized, she did
not tell anyone because she “cared about him like as a father” and did not
want him to get in trouble. When Doe was 14, she found a boyfriend she
trusted and told him what was happening with Wandrey; he told her this was
not normal or okay, and this “snapped me out of blocking it out.” She told
Wandrey to stop a few times, but she was still scared to do this; he would
“give me a break” for a few days but then start again. Doe testified that it
“took alcohol to give [her] the courage to tell him to stop”: On a trip to
Hawaii the year she was 14, after Wandrey gave her a lot of alcohol and
marijuana and she was so intoxicated she could “barely walk,” she
“wholeheartedly” told him to stop touching her. He showed her his penis,
7
said, “just one more time” and continued to touch her vagina. After the trip,
Wandrey did not touch Doe for about two weeks, then started touching her
vagina again. She felt like there was nothing she could do about it.
The touching stopped when Doe was 15 and her mother and Wandrey
broke up. The molestation was later reported to law enforcement after Doe
disclosed it to a therapist and eventually to her mother. The therapist
testified that Doe disclosed the sexual abuse at their first session and he
reported it approximately a year later, in October 2018, when Doe let him
know she was ready.
In October 2018, a detective arranged for Doe to make a pretext call to
Wandrey to try to elicit an admission of the conduct. A recording of the call
was played for the jury.
During the call, Wandrey resisted some of Doe’s accusations, but also
made statements that could be understood as tacit admissions. For example,
when Doe told Wandrey, “I told you, remember, I always told you to stop,” he
said, “And I did.” She said, “But you didn’t,” and he replied, “Mmm. Well,
then there it is.” After Wandrey told Doe he was “never anything but kind”
to her, she said, “Kind isn’t putting your fingers inside me, ok?” Wandrey
responded, “Look, it doesn’t-, it-, it-, all of-, any of this needed was an
accusation and my life is done. That’s it. Like . . . okay. So, you know, I’m
not gonna talk about any of that stuff. I don’t-, it’s just not real. Wandrey
said, “I’m just not gonna go there,” when Doe asked, “you know putting
fingers in my vagina was wrong. Right?” Then, when she told him, “you
know you did it” and “[i]t happened like every day,” he said, “Every day?
What? . . . I don’t remember molesting you every day. That’s for sure.” He
asked, “What punishment do you think for me?” And when Doe said, “[a]ll I
can remember is you fingering me,” Wandrey replied, “Really, that’s all you
8
can remember about our entire journey together? That’s all you can
remember?”
Wandrey repeatedly indicated he would kill himself, saying this was all
he could do for Doe because “[a]nything else would be ruining so many other
lives.” At one point, when Doe told Wandrey she wanted an apology, he
asked, “for what?” He said he would not apologize “[b]ecause I don’t believe
that I screwed you up. I think your mom did.” Later, when Doe said she
wanted an apology for Wandrey “fingering” her, he said, “Mmm. No. No. . . .
I’m not dropping that bomb on the world. I’m just not doing it. That would
affect so many more than just us. It’s not-, not even something I’m willing to
contemplate.” And later, “I did apologize to you. I can only apologize to you
so much. I mean, holy moly, are you kidding me? . . . I’m willing to sacrifice
my life. Was that clear enough? . . . I’m not willing to-, I’m not willing to
involve everyone else who’s gonna be involved in what you want. . . .”
In addition to Doe’s testimony and brief testimony from her therapist
and the police detective, the prosecution presented expert testimony on child
sexual abuse and child sexual abuse accommodation syndrome. The defense
did not present evidence.
DISCUSSION
I.
Wandrey’s Rights Were Not Violated by the Manner
in Which He Was Charged and Prosecuted
Wandrey raises several issues concerning the manner in which he was
charged and prosecuted, challenging the filing of a 272–count information
after he was held to answer on two charges, the grouping of multiple identical
charges into year-long periods, the use of generic testimony and
approximations to support those charges and the references to year-long
9
groupings of charges in jury unanimity instructions. As we will explain, none
of these arguments have merit.
A.
The Trial Court Properly Denied Wandrey’s Demurrer
Wandrey contends the trial court should have sustained his demurrer
to the original 272-count information because it failed to provide sufficient
notice to enable him to defend against specific offenses. As indicated above,
the original information charged 136 assaults with intent to commit a sex
offense (§ 220, subd. (a)(2)) and 136 lewd acts (§§ 288, subd. (a) [counts 1–
220] or subd. (c)(1) [counts 221–272]): 24 of each committed during the year
Doe was 11 years old (Apr. 2012–Apr. 2013), 24 of each committed when she
was 12 years old (Apr. 2013–Apr. 2014), 62 of each committed when she was
13 years old (Apr. 2014–Apr. 2015), and 52 of each committed when she was
14 years old (Apr. 2015–Apr. 2016). As the prosecutor later explained in
describing to the jury the organization of the charges in the first amended
complaint, the information was structured to charge two offenses, one assault
and one lewd act, for each act Wandrey was alleged to have committed: Each
pair of counts, an odd numbered count alleging assault followed by an even
numbered count alleging commission of a lewd act, thus referred to a single
incident of the touching Doe described.
Wandrey maintains that because he had been held to answer on two
charges with a total maximum sentence exposure of 19 years, the 272-count
information, exposing him to hundreds of years in prison, violated his due
process right not to be taken by surprise by the evidence offered at trial.5
5 Wandrey was held to answer on one count of continuous sexual abuse
of a child, for which the upper term is 16 years (§ 288.5, subd. (a)), and one
count of lewd conduct on a 14 or 15 year old by a person at least 10 years
10
Wandrey argues the charging of numerous identical offenses in year-long
time periods precluded him from defending against individual counts and
precluded jurors from identifying specific acts if they failed to agree he
committed all the acts charged.
A demurrer challenges the legal sufficiency of a pleading. (People v.
Biane (2013) 58 Cal.4th 381, 388.) “It is limited to those defects appearing on
the face of the accusatory pleading, and raises only issues of law. (Pen. Code,
§ 1004; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090.)” (Ibid.) On
appeal, we review an order overruling a demurrer de novo. (People v. Perlas
(2020) 47 Cal.App.5th 826, 832.)
“Both the Sixth Amendment of the federal Constitution and the due
process guarantees of the state and federal Constitutions require that a
criminal defendant receive notice of the charges adequate to give a
meaningful opportunity to defend against them.” (People v. Seaton (2001)
26 Cal.4th 598, 640.) Due process requires that an accused “not be taken by
surprise by evidence offered against him at trial.” (People v. Jones (1990)
51 Cal.3d 294, 317 (Jones).) But “[a]n information which charges a criminal
defendant with multiple counts of the same offense does not violate due
process so long as (1) the information informs defendant of the nature of the
conduct with which he is accused and (2) the evidence presented at the
preliminary hearing informs him of the particulars of the offenses which the
prosecution may prove at trial. . . . [Citations.] . . . [Citation.] So long as the
evidence presented at the preliminary hearing supports the number of
offenses charged against defendant and covers the timeframe(s) charged in
older than the child, for which the upper term is three years (§ 288,
subd. (c)(1)).
11
the information, a defendant has all the notice the Constitution requires.”
(People v. Jeff (1988) 204 Cal.App.3d 309, 341–342.)
Doe’s testimony at the preliminary hearing about the circumstances
and nature of the molestation was similar to, albeit less detailed than, her
trial testimony described above. Doe testified that the molestation began
after the move to the new neighborhood; that it started with Doe sitting on
Wandrey’s lap and “progressed from there”; that Wandrey would touch her
breasts over and then under her clothing in what he called “massages”; that
the breast touching began before the genital touching; that the genital
touching would start with Wandrey rubbing the “top part” of her vagina,
after which he would “enter it with his fingers”; that Wandrey spent more
time at her home, and the frequency of the molestation increased as she got
older; and that the molestation was most frequent, and “became less focused
about my breasts and more focused about my genitals,” when she was 13 and
14 years old. Doe testified that as she got older, Wandrey would come over
“every other day” and “any time he was over, it would end up happening.”
She explained, “It seemed very much like every time. I can’t recall exactly
every day but I believe it was almost every time. . . . It was so frequent it
became just a numb part of my life, and I didn’t want to keep track of it. I
tried not to think about it. It is hard to remember because I spent so much
time trying to forget about it.”6 Doe testified at the preliminary hearing that
6The primary difference from the trial testimony was that at the
preliminary hearing Doe testified that the molestation began when she was
10 years old, and that Wandrey touched her breasts and her vagina at least
12 times each when she was 11 years old.
As earlier noted, counts 1 to 48, which alleged offenses committed
between April 2012 and April 2013, when Doe was 11 years old, were
dismissed at trial because the evidence indicated the earliest acts occurred
when Doe was 12.
12
Wandrey touched her breasts at least 12 times and her vagina at least 12
times the year she was 12 years old; touched her breasts at least 12 times
and her vagina at least 50 times when she was 13; and touched her breasts at
least 13 times and her vagina at least 13 times the year she was 14 (for each,
at least three times before her trip to Hawaii with Wandrey and at least 10
times after the trip).
Jones, supra, 51 Cal.3d at pages 313–314, held that “generic testimony”
can provide substantial evidence of molestation. Jones explained that “even
generic testimony (e.g., an act of intercourse ‘once a month for three years’)
outlines a series of specific, albeit undifferentiated, incidents each of which
amounts to a separate offense, and each of which could support a separate
criminal sanction.” (Id. at p. 314.) The victim “must describe the kind of act
or acts committed with sufficient specificity, both to assure that unlawful
conduct indeed has occurred and to differentiate between the various types of
proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or
sodomy). Moreover, the victim must describe the number of acts committed
with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., ‘twice a month’ or ‘every time we went
camping’). Finally, the victim must be able to describe the general time
period in which these acts occurred (e.g., ‘the summer before my fourth
grade,’ or ‘during each Sunday morning after he came to live with us’) to
assure the acts were committed within the applicable limitation period.
Additional details regarding the time, place or circumstance of the various
assaults may assist in assessing the credibility or substantiality of the
victim’s testimony, but are not essential to sustain a conviction.” (Id. at
p. 316.)
13
Doe’s testimony satisfied these requirements: She described the kind of
acts Wandrey committed and testified that in each of the time periods
specified in the information, Wandrey committed at least the number of acts
charged for that time period.
Although there was, in the words of the trial court, an “incredible
difference between what was originally charged” and the 272 counts in the
original information, Wandrey’s claim of unfair surprise is not persuasive.
An information “may charge the defendant with either the offense or offenses
named in the order of commitment or any offense or offenses shown by the
evidence taken before the magistrate to have been committed.” (§ 739.)
Conversely, “a defendant may not be prosecuted for an offense not shown by
the evidence at the preliminary hearing or arising out of the transaction upon
which the commitment was based.” (People v. Burnett (1999) 71 Cal.App.4th
151, 165–166.) Wandrey may have been surprised at the number of counts
charged in the information, but the charges of assault with intent to commit
a sex crime and lewd conduct with a child certainly were shown by the
evidence at the preliminary hearing and arose from the “transaction” the
commitment was based upon.7
7 Additionally, it appears the prosecutor informed defense counsel that
the information would allege distinct offenses rather than a count of
continuous sexual abuse if Doe’s preliminary hearing testimony supported
doing so. The prosecutor represented to the trial court that the defense had
been given notice “that this would likely be the way the charging document
looked moving forward if the case did not resolve prior to the preliminary
hearing.” When defense counsel protested that there was no notice the
number of counts would “go from three to 272,” and the discussion was
simply that “things could get worse” if the matter did not resolve before the
preliminary hearing, the prosecutor insisted there had been more than a
vague assertion that things could get worse: “What the People indicated was
that the charging was based on the victim not identifying specific incidents,
and that is what led to the 288.5. But the victim did indicate that what
14
Wandrey’s argument that he was unable to defend against the charges
is also unpersuasive. Wandrey asserts that the broad year-long time periods
alleged in the information precluded him from presenting evidence, such as
alibi, to show he did not or could not have committed a given act. Jones
rejected this sort of argument. “[O]nly infrequently can an alibi or identity
defense be raised in resident child molester cases. Usually, the trial centers
on a basic credibility issue—the victim testifies to a long series of
molestations and the defendant denies that any wrongful touchings occurred.
[Citations.] . . . [I]f the defendant has lived with the victim for an extensive,
uninterrupted period and therefore had continuous access to the victim,
neither alibi nor wrongful identification is likely to be an available defense.
[Citation.] [¶] Even when an alibi defense is tendered, there is no reason why
the jury would be less inclined to credit the defense as applied to appropriate
counts, merely because the victim’s generic testimony has implicated the
defendant in additional counts or offenses not challenged by the alibi.
Indeed, the fact that the defendant has established an alibi covering some of
the time periods alleged in the information could significantly undermine the
victim’s testimony as to the remaining counts.” (Jones, supra, 51 Cal.3d at
p. 319.)
So it was in the present case: Doe testified that Wandrey committed a
specified number of offenses in each of three one-year periods, and the
defense attempted to undermine her testimony as to that number, in part by
pointing to times Wandrey could not have engaged in the alleged conduct.
Doe acknowledged that there were times Wandrey stayed at his own
happened, happened almost every day. And based on that indication, what
the People alerted the defense to was if the victim described the preliminary
hearing circumstances along those lines and were able to proceed with
individual counts based on that, that is how the Information would look.”
15
residence rather than her mother’s, and that he went to Hawaii for a month
or two each year. In closing argument, defense counsel argued that
Wandrey’s trips to Hawaii, as well as times Doe and her mother went to
Hawaii with him,8 reduced Wandrey’s opportunities to molest Doe, resulting
in insufficient evidence as to the number of times abuse occurred. In
particular, defense counsel argued there was insufficient evidence to support
the counts alleging offenses during the year Doe was 12, as Doe’s time
estimates indicated the first sexual touching did not take place until midway
through that year and the time in which offenses could have occurred was
further reduced by the Hawaii trips and the uncertain number of times
Wandrey was with Doe, but did not touch her in a sexual manner. The
information did not deprive Wandrey of his right to present a defense: He
was able to, and did, attempt to undermine Doe’s credibility as to whether
the offenses occurred at all and, if so, as to their number.
Wandrey also insists his demurrer should have been granted because
the information, by charging multiple offenses in identical language within
each year-long period, gave the jurors no means to choose one count over
another if they did not agree on the number committed.
“ ‘In a criminal case, a jury verdict must be unanimous. [Citations.]’
(People v. Russo (2001) 25 Cal.4th 1124, 1132.) ‘Additionally, the jury must
agree unanimously the defendant is guilty of a specific crime.’ ” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 555.) Jones rejected “the contention
that jury unanimity is necessarily unattainable where testimony regarding
repeated identical offenses is presented in child molestation cases. In such
cases, although the jury may not be able to readily distinguish between the
8 Doe testified that she and her mother went to Hawaii with Wandrey
two or three times.
16
various acts, it is certainly capable of unanimously agreeing that they took
place in the number and manner described.” (Jones, supra, 51 Cal.3d at
p. 321.)
Wandrey acknowledges that generic testimony may assure unanimity
where the victim testifies that the alleged conduct took place at least as many
times as charged and the jury believes the testimony in toto; in that
situation, the jury’s “difficulty in differentiating between the various acts
should not preclude a conviction of the . . . counts charged, so long as there is
no possibility of jury disagreement regarding the defendant’s commission of
any of these acts.” (Jones, supra, 51 Cal.3d at p. 321.) Wandrey argues,
however, that apparent unanimity could not be assured by the information
charging of hundreds of identical counts in the present case because the jury
in fact deadlocked on half of the “identically-charged” counts for the 2013 to
2014 time period, finding him guilty on counts 49 to 72, but deadlocking on
counts 73 to 96.
The significance Wandrey attaches to the jury’s deadlock is misplaced
because the charges in counts 73 to 96 were not identical to the offenses
charged in counts 49 to 72, and it is clear the jury agreed unanimously on the
acts underlying the counts of which Wandrey was convicted. Identical
language was used in alleging each of the assaults in odd numbered counts
49 to 95 and identical language was used in alleging each of the lewd acts in
even numbered counts 50 to 96. But the lewd act counts in the group on
which the jury deadlocked (74–96) differed from lewd act counts in the group
on which it convicted (50–72) in that the former each included an allegation
that Wandrey engaged in substantial sexual conduct in committing the
offense. The prosecutor explained to the jury in closing argument at trial
that these enhancement allegations made clear that the lewd acts alleged in
17
even numbered counts 74 to 96 were incidents in which Wandrey touched
Doe’s vagina, while even numbered counts 50 to 72, which did not include
such enhancement allegations, referred to the incidents in which Wandrey
touched Doe’s chest. Thus, the jury found Wandrey guilty of all the acts of
chest touching alleged to have occurred during the year Doe was 12 years old
and deadlocked on all the counts alleging Wandrey touched Doe’s vagina that
year.
The trial court did not err in overruling Wandrey’s demurrer.
B.
The Trial Court Did Not Err in Denying the Motion to Dismiss
as to Counts 1 Through 220
Wandrey argues the trial court erred in failing to grant his motion to
dismiss the original information (§ 995) because the information changed the
time periods of the charged offenses and went “far beyond” the evidence
presented at the preliminary hearing, thereby denying him the right to be
informed of the charges against him and the right to proceedings before a
magistrate to confer jurisdiction upon the trial court.
The California Constitution “requires that ‘one may not be prosecuted
in the absence of a prior determination of a magistrate or grand jury that
such action is justified.’ ” (People v. Burnett, supra, 71 Cal.App.4th at p. 165,
quoting Jones v. Superior Court (1971) 4 Cal.3d 660, 666; Cal. Const. art. 1,
§ 14.) Accordingly, “ ‘ “[a]n information which charges the commission of an
offense not named in the commitment order will not be upheld unless (1) the
evidence before the magistrate shows that such offense was committed
[citation], and (2) that the offense ‘arose out of the transaction which was the
basis for the commitment’ on a related offense. [Citations.]” ’ (People v.
Pitts (1990) 223 Cal.App.3d 606, 903, quoting Jones v. Superior Court[, supra,
at pp.] 664–665.)” (Burnett, at p. 165.)
18
“ ‘We will not set aside an information “if there is some rational ground
for assuming the possibility that an offense has been committed and the
accused is guilty of it.” ’ (People v. San Nicolas (2004) 34 Cal.4th 614, 654,
quoting People v. Hall (1971) 3 Cal.3d 992, 996.” (People v. Scully (2021)
11 Cal.5th 542, 582.) “ ‘ “[E]very legitimate inference that may be drawn by
the reviewing court from the evidence must be drawn in favor of the
information.” ’ (People v. Williams (1988) 44 Cal.3d 883, 924–925.)”
(Banerjee v. Superior Court (2021) 69 Cal.App.5th 1093, 1111.)
The complaint charged, and Wandrey was held to answer for, a single
count of continuous sexual abuse (§ 288.5) committed over a three-year period
(Apr. 2012–Apr. 2015), with an allegation of substantial sexual conduct
(§ 1203.066, subd. (a)(8)), and a single count of committing a lewd act upon a
minor (§ 288, subds. (a) & (c)(1)) between April 2015 and April 2017. In
Wandrey’s view, while the evidence at the preliminary hearing gave notice of
the acts necessary to substantiate a charge of continuous sexual abuse, “the
220 counts that survived the Section 995 motion were a substantial variance
from the charges presented at the preliminary hearing and complaint.”
People v. Pitts, supra, 223 Cal.App.3d 606 (Pitts), upon which Wandrey
relies, presented a very different situation from the one here. In that case,
seven adults were charged with committing numerous lewd acts in violation
of section 288, subdivision (b), within a two-year period, some counts
specifying a particular sexual act and others leaving the act unspecified.9
(Pitts, at pp. 634, 894–897.) Multiple counts were amended during trial and,
for some, “the specific act and/or actors changed from previous amendments,
9 The defendants were also charged with conspiracy, use of children for
pornography, child endangerment, and assault. (Pitts, supra, 223 Cal.App.3d
at pp. 634, 894–897.)
19
and/or the specific act involving specific actors was not shown by evidence
adduced at a particular preliminary hearing.”10 (Id. at pp. 897–900, 902,
907.) Rejecting the argument that due process was satisfied because
“defendants were on notice to defend against any and all lewd acts involving
any child shown by preliminary hearing evidence to have been present during
the molestations,” Pitts stated, “To hold such variances are immaterial,
however, would be to hold that due process is satisfied as long as the
preliminary hearing evidence shows five violations of a statute and the
evidence at trial shows the same number of violations of the same statute,
regardless of the particulars.” (Id. at p. 907.) Accordingly, Pitts reversed
convictions on counts for which the specific act (e.g., “Christine touched
Johnny’s penis”) was not shown by the evidence at the preliminary hearing
for that defendant.11 (Id. at pp. 907–914.)
The present case does not involve any such confusion of particulars.
Wandrey was charged with committing two specific types of acts—touching
Doe’s breasts and touching her vagina, with digital penetration—against a
single victim. The complaint charged a single count of continuous sexual
10A single child victim was the only witness for the prosecution at
three separate preliminary hearings, two for two different groups of three
defendants and one for an additional defendant. (Pitts, supra, 223
Cal.App.3d at p. 893.) Seven children testified for the prosecution at trial
and two for the defense. (Id. at pp. 645–678.)
11 By way of illustration, one of the reversed counts for defendant
Forsythe, alleged that “Johnny put his penis to Clovette’s genitals.”
Rejecting the Attorney General’s argument that the count was supported by
Johnny’s testimony that he had to put his penis in Clovette’s vagina, the
court explained that testimony was given at the preliminary hearing for
other defendants; at Forsythe’s preliminary hearing, “the only specific act
testified to involving Clovette was when Tommy stuck his penis in Clovette’s
vagina.” (Pitts, supra, 223 Cal.App.3d at p. 913.)
20
abuse over a three-year period (Apr. 2012–Apr. 2015) and a single count of
committing a lewd act within a two-year period (Apr. 2015–Apr. 2017); the
information alleged hundreds of individual counts based on the number of
times Doe testified Wandrey touched her breasts and the number of times he
touched her vagina in each of four year-long time periods (Apr. 2012–Apr.
2013; Apr. 2013–Apr. 2014; Apr. 2014–Apr. 2015; Apr. 2015–Apr. 2016).
Despite the magnitude of change in number of counts, each count was
supported by Doe’s testimony at the preliminary hearing. Accordingly, there
was at least “ ‘ “some rational ground for assuming the possibility” ’ ” that
Wandrey committed the charged offenses. (People v. Scully, supra,
11 Cal.5th at p. 582.)
C.
The Convictions Were Supported by Substantial Evidence
Wandrey argues Doe’s generic testimony was insufficient to support his
convictions, as he did below in his motions for a judgment of acquittal
(§ 1118.1) and for a new trial. In essence, his argument is that the testimony
was insufficiently specific to support the 158 counts of which he was
convicted.
“ ‘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.’ (People v. Lindberg (2008) 45 Cal.4th 1, 27.)” (People v. Lewis (2009)
46 Cal.4th 1255, 1289–1290.) “We presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from the
evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the
21
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. (People v. Valdez [(2004)]
32 Cal.4th [73,] 104.) A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility. (People v. Guerra (2006) 37 Cal.4th 1067,
1129.)” (Lindberg, at p. 27.)
Wandrey recognizes that, as earlier described, generic testimony
“outlines a series of specific, albeit undifferentiated, incidents, each of which
amounts to a separate offense, and each of which could support a separate
criminal sanction.” (Jones, supra, 51 Cal.3d at p. 314.) “ ‘A young victim . . . ,
assertedly molested over a substantial period by a parent or other adult
residing in his home, may have no practical way of recollecting,
reconstructing, distinguishing or identifying by “specific incidents or dates”
all or even any such incidents. (Indeed, even a mature victim might
understandably be hard pressed to separate particular incidents of repetitive
molestations by time, place or circumstance.)’ ” (People v. Matute (2002)
103 Cal.App.4th 1437, 1445 (Matute), quoting Jones, at p. 305.)
As we have said, Doe’s testimony satisfied the requirements Jones
imposed for generic testimony concerning continuous abuse. She described
“the kind of act or acts committed with sufficient specificity, both to assure
that unlawful conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g. lewd conduct, intercourse, oral
copulation or sodomy)” (Jones, supra, 51 Cal.3d at p. 316): Wandrey touched
her breasts both over and under her clothing and, increasingly as she got
older, touched her vagina by first rubbing the “top part” and then putting his
fingers inside her vagina; the breast touching began with incidents when Doe
was sitting on Wandrey’s lap playing computer games and also happened
22
when she was sitting on the piano bench and at the dinner table, but
happened most frequently in her bedroom. Doe described “the number of acts
committed with sufficient certainty to support each of the counts alleged in
the information or indictment (e.g., ‘twice a month’ or ‘every time we went
camping’)” (ibid): She testified that Wandrey “definitely” touched her breasts
and her vagina in the manner she described “at least” the number of times
alleged, although she believed the acts occurred far more frequently. And she
described “the general time period in which these acts occurred (e.g., ‘the
summer before my fourth grade,’ or ‘during each Sunday morning after he
came to live with us’) to assure the acts were committed within the applicable
limitation period” (ibid.): She tied the beginning of the molestation to her
move to a new neighborhood, which took place when she was in sixth grade
and was 12 or 13 years old and stated the minimum number of times each act
occurred for each of the years at issue.
Wandrey attempts to demonstrate the insufficiency of Doe’s testimony
by distinguishing the present case from Jones, emphasizing that the child in
that case described six acts occurring in four different rooms of the house and
on camping trips, and “Jones did not divide again a 3-year time period into
three separate one-year time periods with multiple, identically-charged
counts therein, or extrapolate the particular acts described into literally
hundreds of charges based upon a speculative multiplier.” Similarly,
Wandrey contrasts presenting the jury with “220 counts spread across 4 one-
year periods” with the presentation of “15 monthly counts” in Matute.
These distinctions are not meaningful for purposes of determining the
sufficiency of Doe’s testimony. Doe described two specific types of abuse
occurring with great frequency, most often in her bedroom, but also in other
parts of the house, over the three years before her mother and Wandrey
23
ended their relationship. Her inability to differentiate each act of breast or
vaginal touching from others of the same type in terms of specific time and
place is not surprising in light of the frequency and duration of the abuse,
especially as Doe was testifying several years after the fact about experiences
that she had actively tried to block from her mind at the time and continued
to cause her great distress. Her testimony was sufficient to establish that
Wandrey assaulted her with intent to commit a sexual offense, and
committed lewd acts against her, on at least the number of occasions, and
within the time frames, alleged in the counts for which he was convicted.
Neither Jones nor Matute precludes charges grouped into a year-long
time frame; in fact, contrary to Wandrey’s characterization, the 15 counts in
Matute were all alleged to have been committed during the same 15-month
period. (Matute, supra, 103 Cal.App.4th at p. 1440.) Nor do these cases
preclude charges grouped in time periods based on a victim’s age. As
Wandrey observes, the time period alleged in Matute was measured by
external events—the date the victim moved to California and the date a
social worker called the police. These events defined the period because the
victim testified she was raped “a couple of times a week” after her family
moved to California, and the abuse presumably ended with the involvement
of the police. (Id. at pp. 1440–1441.) Doe testified that Wandrey began to
touch her breasts, and subsequently her vagina, after the move to the new
neighborhood and the abuse ended when his relationship with Doe’s mother
terminated. The offenses alleged to have occurred during this approximately
three-year period were charged in separate year-long periods because, as Doe
testified, she tended to think about when things happened by reference to
how old she was at the time.
24
Wandrey also attempts to distinguish Matute on the basis that the jury
in the present case did not accept Doe’s testimony in toto but rather
deadlocked on 24 counts alleging, “the exact same acts during the exact same
time periods” as in 24 counts for which he was convicted. As we have
explained, the two groups of counts were not identical: The jury deadlocked
on all counts based on Wandrey touching Doe’s vagina when she was 12 years
old and found Wandrey guilty on all counts based on his touching her breasts
during that year.
Ignoring the difference between counts including substantial sexual
conduct enhancement allegations and those not including such allegations,
Wandrey sees the jury’s deadlock on “identically-charged” offenses as a
“peculiarity” of this case. In our view, the verdicts demonstrate the jury was
able to distinguish counts supported by the evidence from counts as to which
the evidence was less certain. Doe testified that Wandrey touched her
breasts and her vagina throughout the year she was 13 and the year she was
14. This was not the case for the year she was 12. Doe testified that the
molestation began after she moved to the new neighborhood, which was
toward the end of her sixth-grade school year; she thought it was shortly
before her twelfth birthday, but was not precise in pinpointing a date. She
testified that the molestation began a few months after the move but, again,
the timing was not precise. And she testified that the molestation began with
Wandrey touching her breasts and only later moved on to him touching her
vagina. Doe’s testimony thus compressed the period in which the offenses
alleged in counts 49 to 96 could have been committed to something less than
the full year she was 12—more so for the counts based on vaginal touching
than those based on breast touching. Given Doe’s uncertainty about when
during the year the vaginal touching began, the jury may simply have failed
25
to agree that she could be certain of the number of times it happened when
she was 12 years old.
Wandrey’s contention that Doe’s testimony consisted of approximations
and estimates is inaccurate. As can be seen from the description of her
testimony above, Doe was asked for and provided many estimations of the
approximate number of times she believed Wandrey touched her in a given
way during a specified time period. But she testified to the minimum
number of times Wandrey “definitely” touched her breasts and her vagina in
each of the years at issue. Wandrey emphasizes the explicit approximations
Doe gave—such as Wandrey touching her vagina three or four times a week,
and therefore approximately 152 to 208 times, the year she was 14, and
touching her breasts three or four times a week, approximately 150 times,
when she was 12—but omits mention of the much smaller number of times
Doe testified the acts “definitely” happened. It is this smaller number that
corresponds to the number of counts Wandrey was charged with and
convicted.
D.
The Jury Unanimity Instruction Was Proper
The parties agreed that a jury instruction on unanimity was necessary
and that the court should use CALCRIM No. 3501—“Unanimity: When
Generic Testimony of Offense Presented”—rather than the standard
unanimity instruction, CALCRIM No. 3500. They disagreed, however, as to
how the charged offenses should be described in the instruction. Over
Wandrey’s objection, the trial court adopted language proposed by the
prosecutor that referred to the number of counts alleged to have been
committed within each of the year-long time periods specified in the
26
information.12 Wandrey contends that, by grouping identically charged
offenses into year-long time periods, the instruction given failed to ensure
unanimity.
The jury was instructed as follows: “The defendant is charged with the
following: 24 counts of assault with the intent to commit a lewd act with a
child under the age of 14 or with the intent to commit sexual penetration
with a child under the age of 18 sometime during the period of April . . . 2013
to April . . . 2014.
“The defendant is charged with 24 counts of committing a lewd act with
a child under the age of 14 during the period of April . . . 2013 to April . . .
2014.
“The defendant is charged with 62 counts of assault with the intent to
commit a lewd act with a child under the age of 14 or with the intent to
commit sexual penetration with a child under the age of 18 sometime during
the period of April . . . 2014 to April . . . 2015.
“The defendant is charged with committing 62 counts of assault with
the intent to commit sexual penetration with a child under the age of 18
sometime during the period of April . . . 2015 to April . . . 2016. [¶] . . . [¶]
“The People have presented evidence of more than one act to prove that
the defendant committed these offenses. You must not find the defendant
guilty unless, 1, you all agree that the People have proved that the defendant
committed at least one of these acts and you all agree on which act he
Defense counsel objected that the language describing the charges
12
“risk[ed] collecting or lumping by the jurors” and asked for a “more generic
3501 unanimity instruction.” The trial court agreed with the prosecutor that
specifying the timeframe within which the charged conduct was alleged to
have occurred would help the jury understand how to apply the instruction
and consider the evidence.
27
committed for each offense, or 2, you all agree that the People have [proved]
that this defendant committed all the acts alleged to have occurred during
this time period and have proved that this defendant committed at least the
number of offenses charged.”
“CALCRIM No. 3501 affords two different approaches for the jury to
reach the required unanimity. The first is the same as that set forth
in CALCRIM No. 3500: agreement as to the acts constituting each offense.
But unanimity may also be found under CALCRIM No. 3501 if the jury
agrees ‘that the People have proved that the defendant committed all the acts
alleged to have occurred during this time period [and have proved the
defendant committed at least the number of offenses charged].’ ” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 556.) CALCRIM No. 3501
implements directions provided in Jones: “In a case in which the evidence
indicates the jurors might disagree as to the particular act defendant
committed, the standard unanimity instruction should be given. [Citation.]
But when there is no reasonable likelihood of juror disagreement as to
particular acts, and the only question is whether or not the defendant in fact
committed all of them, the jury should be given a modified unanimity
instruction which, in addition to allowing a conviction if the jurors
unanimously agree on specific acts, also allows a conviction if the jury
unanimously agrees the defendant committed all the acts described by the
victim.” (Jones, supra, 51 Cal.3d at pp. 321–322.)
Wandrey argues that jurors could not have distinguished one
identically charged offense from another as required by the first option under
CALCRIM No. 3501, and that the fact they deadlocked on half the counts
charged for the year Doe was 12 years old shows they did not unanimously
agree he committed all the acts alleged, as described in the second option. As
28
we have discussed, Wandrey’s characterization of the counts on which the
jury deadlocked as identical to the other counts alleged for that time period is
inaccurate: The counts on which the jury deadlocked included substantial
sexual conduct allegations; the counts on which the jury found Wandrey
guilty did not. The deadlock does not demonstrate an absence of unanimity,
as Wandrey maintains. To the contrary, the fact that the jury found
Wandrey guilty of all counts based on his touching Doe’s breasts when she
was 12 years old and deadlocked on all counts based on his touching her
vagina that year strongly suggests the jury’s verdicts were unanimous.
II.
The Trial Court Did Not Err in Requiring Witnesses
to Wear Face Masks While Testifying
Wandrey’s trial took place in October and November 2020, during the
Covid-19 pandemic and, over Wandrey’s objection, witnesses wore masks
while testifying. The trial court denied Wandrey’s request that the mask be
removed or replaced with a clear shield when Doe was on the witness stand,
which was shielded with plexiglass. Wandrey contends that having Doe wear
an opaque mask covering her mouth and nose while she testified deprived
him of his constitutional right to confrontation and impaired his right to
present a defense. He maintains the mask was not necessary in light of other
precautions in use, including plexiglass partitions and social distancing, and
was not the least obtrusive means of balancing public safety against his trial
rights.
“ ‘ “[T]he Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact.” (Coy v. Iowa
(1988) 487 U.S. 1012, 1016.) A central aspect of this guarantee is that it
requires a witness “ ‘to stand face to face with the jury in order that they may
look at him, and judge by his demeanor upon the stand and the manner in
29
which he gives his testimony whether he is worthy of belief.’ ” (Maryland v.
Craig (1990) 497 U.S. 836, 845, quoting Mattox v. United States (1895)
156 U.S. 237, 242–243.)
But face-to-face confrontation “is not the sine qua non of the
confrontation right” and “ ‘must occasionally give way to considerations of
public policy and the necessities of the case[.]’ ” (Maryland v. Craig, supra,
497 U.S. at pp. 847, 849, quoting Mattox v. United States, supra, 156 U.S. at
p. 243.) The defendant’s constitutional right may be satisfied absent face-to-
face confrontation “only where denial of such confrontation is necessary to
further an important public policy and only where the reliability of the
testimony is otherwise assured.” (Maryland, at p. 850.) This public policy
exception “must be applied on a case-by-case basis.” (People v. Alvarez (2022)
75 Cal.App.5th 28, 36 (Alvarez).)
A few California courts, considering trial conducted in the same time
frame as Wandrey’s, have recently issued opinions rejecting the view that
requiring witnesses to wear face coverings for protection during the pandemic
violated defendants’ confrontation rights. (People v. Edwards (2022)
76 Cal.App.5th 523; People v. Lopez (2022) 75 Cal.App.5th 227; Alvarez,
supra, 75 Cal.App.5th at p. 39.) These courts considered the importance of
the state interest in “protecting the public from a contagious, and too often,
lethal, disease,” the relative inferiority of alternatives such as testimony
behind a plexiglass shield as determined by guidance from the Centers for
Disease Control and Prevention, and the relatively minimal limitation of
masks covering a witness’s mouth and nose on jurors’ ability to assess the
witness’s demeanor. (Edwards, at pp. 526–527; Lopez, at pp. 233–235;
Alvarez, at pp. 36–38.) The Alvarez court explained that “[a]lthough face
masks covered the witnesses’ mouths and the lower part of their noses,
30
significant aspects of their appearance, including the eyes, tops of the cheeks,
and the body, were readily observable as was posture, tone of voice, cadence
and numerous other aspects of demeanor.”13
The trial court here carefully considered these same factors and
balanced them against Wandrey’s right of confrontation. In explaining its
ruling, the court observed there was a “very real danger of COVID 19 and its
transmission here in the court,” as there was at that time a worldwide surge
in transmission of the virus and Sonoma County was “at the wors[t] possible
level or tier of California Governor’s rating system relating to transmissions
of the disease,” and noted there had been recent outbreaks in the jails and
despite the imposition of safety measures including personal protective
equipment. The court noted that some of the jurors and others in the
courtroom would come within the group highly vulnerable to the virus;
described the limitations of the plexiglass shield that partially surrounded
the witness stand; and noted that masks had been identified as the best tool
for slowing transmission. And the court noted that even with a mask, the
jurors would be able to hear a witness’s voice and assess “her tone and
inflections and pattern of speech,” as well as that the witness’s eyes would be
13 As Alvarez further elaborated: “ ‘Demeanor includes the language of
the entire body [and] jurors will still be able to observe most facets of the
witnesses’ demeanor. They can observe the witnesses from head to toe. They
will be able to see how the witnesses move when they answer a question; how
the witnesses hesitate; how fast the witnesses speak. They will be able to see
the witnesses blink or roll their eyes, make furtive glances, and tilt their
heads. The Confrontation Clause does not guarantee the right to see the
witness’s lips move or nose sniff, any more than it requires the jurors to
subject the back of a witness’s neck to a magnifying glass to see if the hair
raised during particularly probative questioning.’ ” (Alvarez, supra, 75
Cal.App.5th at p. 38, quoting United States v. Crittenden (M.D.Ga. Aug. 21,
2020, No. 4:20-CR-7 (CDL)) 2020 U.S.Dist. Lexis 151950.)
31
fully visible and her body language would be easily observed “were she to
become emotional, were she to scowl or become angry, were she to cho[o]se to
not make any contact with her alleged offender.”
There can be no question the court did not violate Wandrey’s rights
under the confrontation clause in concluding that requiring witnesses to wear
masks was necessary in light of the local conditions with respect to the
pandemic, the specific layout of the courtroom, and the available means of
assessing the reliability of witnesses’ testimony.
III.
The Trial Court Did Not Err in Quashing Wandrey’s Subpoena
of Doe’s Psychotherapy Records
At trial, defense counsel orally moved for disclosure of Doe’s therapist’s
treatment records, which counsel had subpoenaed (§ 1326)14 and the court
had received. Counsel stated the court might find it appropriate to review
the records in camera before disclosing them to the defense, pursuant to
procedures discussed in People v. Hammon (1997) 15 Cal.4th 1117 (Hammon)
and People v. Reber (1986) 177 Cal.App.3d 523 (Reber).
The prosecution moved to quash the subpoena, arguing Wandrey had
not shown sufficient justification for the court to review the records or release
them to the defense. Wandrey responded that he was entitled to the records
because they included “statements either consistent or inconsistent with
[Doe’s] testimony at trial.” The court found there was “an inadequate
showing” for in camera review because it was insufficient “to simply contend
14Under section 1326, the attorney for a defendant is one of the persons
authorized to sign and issue a subpoena. (§ 1326, subd. (a)(4).) “When a
defendant has issued a subpoena to a person or entity that is not a party for
the production of books, papers, documents, or records, or copies thereof, the
court may order an in camera hearing to determine whether or not the
defense is entitled to receive the documents.” (§ 1326, subd. (c).)
32
that any and all psychological records might provide some type of
inconsistent or consistent statement relating to the allegations.”15
Citing Hammon, supra, 15 Cal.4th 1117, Wandrey contends he was
deprived of a fair trial by the court’s quashing of the subpoena without first
reviewing the records in camera. We review the trial court’s decision for
abuse of discretion. (Facebook, Inc. v. Superior Court of San Diego County
(2020) 10 Cal.5th 329, 359 (Facebook).)
The fundamental principle Wandrey relies upon derives from Davis v.
Alaska (1974) 415 U.S. 308 (Davis), which found a defendant’s constitutional
right to confrontation was violated when he was precluded from cross-
examining a crucial prosecution witness for bias on the basis that the
information he sought to elicit was confidential under state law. Applying
the principles established in Davis to a defendant’s attempt to obtain pretrial
discovery of victims’ psychotherapy records, Reber held the court erred “to the
extent it failed to (1) obtain and examine in camera all the materials under
subpoena, (2) weigh defendants’ constitutionally based claim of need against
the statutory privilege invoked by the People, (3) determine which privileged
matters, if any, were essential to the vindication of defendants’ rights of
confrontation and (4) create a record adequate to review its ruling.” (Reber,
supra, 177 Cal.App.3d at p. 532.) Hammon subsequently disapproved Reber
and a line of cases following it, finding trial courts are “not required, at the
pretrial stage of the proceedings, to review or grant discovery of privileged
15After defense counsel urged there was a “compelling basis to obtain
what the psychologist said he was told, including when he was first told and
the number of times it was discussed and what was discussed,” the court
noted the therapist had given only “general” testimony regarding Doe’s
disclosure with “no specifics.”
33
information in the hands of third party psychotherapy providers.” (Hammon,
supra, 15 Cal.4th at p. 1119, italics added.)
Wandrey appears to assume Hammon left Reber intact with respect to
discovery during trial. He relies on the Hammon court’s statement—made in
the course of distinguishing the trial right at issue in Davis from—the
pretrial context in Reber—that “[w]hen a defendant proposes to impeach a
critical prosecution witness with questions that call for privileged
information, the trial court may be called upon, as in Davis, to balance the
defendant’s need for cross-examination and the state policies the privilege is
intended to serve.” (Hammon, supra, 15 Cal.4th at p. 1127.) Hammon did
not address what standard would govern a trial court’s decision whether to
review confidential records during trial to determine whether they should be
released to the defense, but Wandrey assumes a showing of good cause would
be required: He points to the procedure Reber established “to be followed
once the defendant shows good cause for discovery of a witness’s mental
health records” (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295) and
urges that “ ‘the good cause requirement embodies a “relatively low
threshold” for discovery’ [citation], under which a defendant need
demonstrate only ‘a logical link between the defense proposed and the
[information sought]’ and describe with some specificity ‘how the discovery
being sought would support such a defense . . . .’ ” (People v. Gaines (2009)
46 Cal.4th 172, 182 [discussing discovery of confidential peace officer
personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
“ ‘A defendant’s motion for discovery must . . . describe the requested
information with at least some degree of specificity and must be sustained by
plausible justification.’ ” (Facebook, supra, 10 Cal.5th at p. 348, quoting
Ballard v. Superior Court (1966) 64 Cal.2d 159, 167.) Where the information
34
sought is confidential or privileged, “plausible justification—which, as noted
above, must in all cases be ‘so substantiated as to make the seizure
constitutionally reasonable’ [citation]—must be subject to even closer
examination in the absence of an apparent relationship between the alleged
crime and the sought private communications. (Cf. Hammon, supra,
15 Cal.4th at p. 1127 [courts should be especially reluctant to facilitate
pretrial disclosure of privileged or confidential information that, as it may
turn out, is unnecessary to use or introduce at trial].)” (Facebook, at p. 355.)
As the Facebook court explained with respect to a defendant’s effort to compel
production of a victim’s restricted social media posts and private messages,
required disclosure, “even to a judge for ex parte review (see Pen. Code
§ 1326, subd. (c)), as a predicate to possible broader disclosure, itself
constitutes a significant impingement on” privacy. (Id. at pp. 353, 354–355.)
The only basis Wandrey offered the trial court for seeking disclosure of
Doe’s records was that, because Jacobs testified Doe disclosed abuse to him at
multiple sessions over the course of several months, “they include statements
either consistent or inconsistent with her testimony at trial.” As the trial
court pointed out, this could be said in any and every case in which the
complaining witness engaged in mental health counseling. If this were
sufficient as a justification for review of confidential records, the “good cause”
requirement would be meaningless.
Wandrey makes further arguments on appeal, including that because
the process of therapy can impact recollection and Jacobs did not report the
abuse until after Doe informed him she was ready, the records might explain
Doe’s “change of opinion” as to whether Wandrey acted with lewd intent in
the episodes during the month or so before he began touching her breasts
when he would pull her back toward him as she sat on his lap at the
35
computer.16 He made no such argument in the trial court, and “ ‘[a] party
cannot argue the court erred in failing to conduct an analysis it was not
asked to conduct.’ ” (People v. Tully (2012) 54 Cal.4th 952, 980, quoting
People v. Partida (2005) 37 Cal.4th 428, 435.) In any event, none of
Wandrey’s convictions were based on this conduct, and he suggests no reason
to think Doe’s statements to her therapist about the breast touching and
vaginal touching would have differed from her testimony at trial.
We find no abuse of discretion.
IV.
The Jury Instruction on Uncharged Offenses,
if Erroneous, Was Not Prejudicial
Doe described sexual acts Wandrey committed against her when the
two were in Hawaii. Wandrey was not charged with any offenses based on
these acts, but they were introduced as evidence of propensity to commit
sexual acts pursuant to Evidence Code section 1108. Wandrey contends the
jury instruction concerning these uncharged sexual offenses erroneously
directed jurors to apply California law to acts committed in Hawaii, which he
views as creating an unlawful mandatory presumption, lessening the
prosecution’s burden of proof and depriving him of a fair trial.
“In a criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a).)
16 Doe testified on direct examination that Wandrey’s conduct made her
uncomfortable, but she tried to ignore it. On cross-examination, asked if she
was unsure whether this conduct was sexual, Doe testified that she “would
assume” it was because he was pulling her closer to his genital area, and that
“[a]t the time I didn’t know, but looking back at it, it seemed sexual to me.”
36
“Subject to Evidence Code section 352, Evidence Code section 1108 permits a
jury to consider prior incidents of sexual misconduct for the purpose of
showing a defendant’s propensity to commit offenses of the same type, and
essentially allowing such evidence to be used in determining whether the
defendant is guilty of the current sexual offense charge.” (People v.
Miramontes (2010) 189 Cal.App.4th 1085, 1097 (Miramontes); People v.
Falsetta (1999) 21 Cal.4th 903, 911.) Evidence Code section 1108 “was
intended in sex offense cases to relax the evidentiary restraints [Evidence
Code] section 1101, subdivision (a), imposed, to assure that the trier of fact
would be made aware of the defendant’s other sex offenses in evaluating the
victim’s and the defendant’s credibility.” (Falsetta, at p. 911.)
The jury was instructed pursuant to CALCRIM No. 1191A as follows:
“The People presented evidence that the defendant committed the
crime of sexual penetration of a child under the age of 18 which occurred in
Hawaii that was not charged in this case. This crime is defined for you in
these instructions. (Instruction 1102 [CALCRIM No. 1102, defining sexual
penetration with person under 18 (§ 289, subd. (h))].) . . .
“If you decide that the defendant committed the uncharged offense, you
may, but are not required to, conclude from that evidence that the defendant
was disposed or inclined to commit sexual offenses, and based on that
decision, also conclude that the defendant was likely to commit and did
commit a lewd act upon a child under the age of 14, and assault with the
intent to commit a lewd act upon a child under 14 or sexual penetration of a
child under the age of 18 as charged here. . . .”
Wandrey’s claim of error is based on Evidence Code section 1108’s
definition of “sexual offense” as “a crime under the law of a state or of the
37
United States” involving specified sexual conduct.17 Wandrey argues this
definition requires that an uncharged sexual offense used to infer propensity
must be a crime under the law of the jurisdiction in which it was committed,
but the instruction erroneously directed the jury to use California’s definition
of “lewd act on a child under 18.” That definition, he argues, describes
conduct that is not a crime in Hawaii. Wandrey’s argument fails for several
reasons.
First, Wandrey forfeited this claim by failing to object to the instruction
on these grounds at trial.18 (People v. Seijas (2005) 36 Cal.4th 291, 302.)
Wandrey points out that claims of instructional error “may be asserted even
without objection if they affect the defendant’s substantial rights.” (Ibid.)
“Ascertaining whether claimed instructional error affected the substantial
rights of the defendant necessarily requires an examination of the merits of
the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.” (People v. Anderson (1994)
26 Cal.App.4th 1241, 1249.) Here, Wandrey could not have been prejudiced
because even if he is correct that Evidence Code section 1108 required that
the uncharged offense be a crime in the jurisdiction where it was committed,
he has not demonstrated that the conduct Doe described was not criminal
under Hawaii law.
17The uncharged offense must involve conduct proscribed by
enumerated provisions of the Penal Code, including sections 220, 288, and
289, or meeting specified criteria, including “[c]ontact, without consent,
between any part of the defendant’s body or an object and the genitals or
anus of another person.” (Evid. Code, § 1108, subd. (d)(1)(A)–(F).)
18Defense counsel did suggest unrelated modifications to the
instruction, which the trial court rejected.
38
Wandrey points to section 707-732 of the Hawaii Revised Statutes as
support for his assertion that the conduct described in CALCRIM No. 1102 is
not a crime in Hawaii. That statute provides: “(1) A person commits the
offense of sexual assault in the third degree if the person: . . . [¶] . . . [¶] (c)
Knowingly engages in sexual contact with a person who is at least fourteen
years old but less than sixteen years old . . . ; provided that the actor is:
[¶] (i) No less than five years older than the minor; and [¶] (ii) Not legally
married to the minor[.]” (Haw. Rev. Stat., § 707-732.) The conduct Doe
described—Wandrey touching her vagina—appears to fall squarely within
the definition of this offense. The conduct also appears to directly violate
Hawaii Revised Statute section 707-730, which provides that a person
“commits the offense of sexual assault in the first degree if the person: . . .
[¶] . . . [¶] (c) Knowingly engages in sexual penetration with a person who is
at least fourteen years old but less than sixteen years old; provided that the
actor is: [¶] (i) No less than five years older than the minor; and [¶] (ii) Not
legally married to the minor[.]”
The only explanation Wandrey offers for his conclusion that the
conduct in Hawaii did not constitute an offense under that state’s laws is that
“the age of consent in Hawaii is 16, with a close-in-age exception applicable
for ages 14 and 15.” The relevance of this point escapes us, as Doe was 14
years old at the time of the conduct she described and, in any event, did not
consent to the sexual conduct. To the extent Wandrey’s argument is that the
jury was permitted to use evidence of conduct that was not an offense in
Hawaii to infer a propensity to commit the similar conduct alleged in the
present case, the argument necessarily fails.
Wandrey additionally argues the instruction created an unlawful
mandatory presumption by directing the jurors that they could consider the
39
Hawaii conduct as propensity evidence if it constituted a crime under
California law, thereby removing from the jury the factual question whether
the conduct satisfied the elements of a sexual offense under Hawaii law. We
disagree. The instruction did not remove any element of the charged offenses
from the jury’s consideration, as in the cases Wandrey cites. (People v. Flood
(1998) 18 Cal.4th 470 [instruction that officers who pursued fleeing
defendant were “peace officers” in prosecution for evading vehicle operated by
pursuing peace officer]; People v. Vanegas (2004) 115 Cal.App.4th 592
[instruction that violation of basic speed law is act inherently dangerous to
human life and safety in prosecution for second degree murder based on
implied malice].) The factual issue Wandrey claims was erroneously removed
from the jury’s consideration—whether his conduct was criminal in Hawaii—
did not bear on any element of the charged offenses, only on whether the
uncharged offense could be used as a basis for inferring a propensity to
commit such crimes. (People v. Jandres (2014) 226 Cal.App.4th 340, 359
[propensity not an element of charged sexual offenses].) And the inference
permitted by the instruction was just that—permitted, not mandatory.
(People v. Reliford (2003) 29 Cal.4th 1007, 1015; People v. Anderson (2012)
208 Cal.App.4th 851, 896.)
In short, if Wandrey is correct that Evidence Code section 1108
requires that an uncharged offense be a crime in the jurisdiction where it was
committed—a point we need not decide19—any error in referring the jury to
19 Miramontes offers some support for a conclusion that the critical
question is whether uncharged conduct violates California law. The case was
about admissibility of evidence, not instructional error, and does not appear
to have involved any suggestion the conduct was not a crime in the foreign
jurisdiction; the argument was that Evidence Code section 1108 does not
permit use of uncharged foreign offenses (there, offenses committed in
Mexico) because such offenses are not expressly listed in the definition in
40
the California crime of sexual penetration of a child was harmless. Since
such error regarding propensity evidence does not involve a constitutionally
impermissible mandatory presumption or relieve the prosecution of its
burden of proving each element of the charged offenses, it would be subject to
state harmless error analysis. (People v. Jandres, supra, 226 Cal.App.4th at
p. 359; People v. Watson (1956) 46 Cal.2d 818, 836.) Wandrey could not have
been prejudiced. First, as we have said, his assertion that the conduct was
not criminal under Hawaii law is incorrect. Second, in light of Doe’s
testimony that Wandrey repeatedly molested her for years in Sonoma County
by engaging in the same conduct she described him committing in Hawaii,
the propensity the jury was permitted to infer could not have been critical to
its determination that Wandrey committed the offenses on which he was
found guilty.
subdivision (d) of the statute. (Miramontes, supra, 189 Cal.App.4th at
p. 1099.)
Still, Miramontes described Evidence Code section 1108 as
“permit[ting] a court to consider the substance of certain prior sexual
misconduct that was actually committed elsewhere, if such conduct would
amount to a ‘crime under the law’ of a jurisdiction that proscribes certain
identified types of sexual misconduct, such as California” (Miramontes,
supra, 189 Cal.App.4th at pp. 1100–1101) and observed, “there is no reason
as a matter of law, logic or statutory construction to withhold reliable
evidence of such foreign prior uncharged misconduct from a jury, where, as
here, the offer of proof showed that those prior incidents ‘involved conduct
which satisfies all of the elements of the comparable California [sex] offense.’ ”
(Id. at p. 1101, quoting People v. Myers (1993) 5 Cal.4th 1193, 1195 [out of
state priors].) The court noted that the definitions in subdivision (d) of
Evidence Code section 1108 “include descriptions of the substance of unlawful
conduct involved in a prior offense, wherever it may have occurred. The
principal consideration in this inquiry is whether the comparable prior,
essentially similar, conduct occurred, not where it occurred, for purposes of
determining if California consequences will ensue, such as its admissibility
under Evidence Code section 1108.” (Miramontes, at p. 1099.)
41
V.
Sentencing Issues
Wandrey’s 756-year prison term is the result of the trial court’s
imposition of full, consecutive aggravated terms on each of his 84 convictions
for sexual assault (§ 220, subd. (a)(2)). The trial court imposed sentence on
counts odd-numbered counts 49 through 71 and 121 through 219, and all
counts 221 through 230, pursuant to section 667.6, subdivision (d), which
makes full consecutive terms mandatory; it imposed sentence on odd-
numbered counts 97 through 119 pursuant to subdivision (c) of section 667.6,
which permits full consecutive terms as an exercise of discretion.
Wandrey contends his sentence is unlawful because none of his offenses
are eligible for full consecutive sentencing under section 667.6. Alternatively,
he argues that in determining whether his offenses were committed on
“separate occasions”—the statutory prerequisite for mandatory full
consecutive term sentencing—the trial court deprived him of his right to a
jury determination of the issue. Finally, based on a postsentencing statutory
amendment, he argues resentencing is required because aggravated terms
may be imposed only if the aggravating circumstances have been stipulated
to by the defendant or found true beyond a reasonable doubt by the jury.
A.
Wandrey’s Convictions of Assault with Intent to Commit a Sexual
Offense Are Eligible for Sentencing Under Section 667.6
“The Legislature enacted section 667.6 in 1979 to significantly increase
prison terms for persons convicted of certain violent sex offenses. (Stats.
1979, ch. 944, § 10, p. 3258.) Section 667.6, subdivisions (c) and (d) address
the terms of imprisonment for 10 listed sex crimes commonly referred to as
“ ‘violent sex crimes.’ ” (People v. Pelayo (1999) 69 Cal.App.4th 115, 123.)
42
Section 667.6, subdivision (c), provides in pertinent part: “In lieu of the
term provided in Section 1170.1, a full, separate, and consecutive term may
be imposed for each violation of an offense specified in subdivision (e) if the
crimes involve the same victim on the same occasion.”
Subdivision (d)(1) of section 667.6 provides: “A full, separate, and
consecutive term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve the same
victim on separate occasions.”
Subdivision (e) of section 667.6 lists the offenses to which the section
applies as follows: “(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261. [¶] (2) Rape, in violation of paragraph (1), (4),
or (5) of subdivision (a) of former Section 262. [¶] (3) Rape or sexual
penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in
violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of
Section 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section
288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 287 or of former Section
288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of
Section 289. [¶] (9) As a present offense under subdivision (c) or (d), assault
with intent to commit a specified sexual offense, in violation of Section 220[.]
[¶] (10) As a prior conviction under subdivision (a) or (b), an offense
committed in another jurisdiction that includes all of the elements of an
offense specified in this subdivision.”
Wandrey was sentenced under section 667.6 for his convictions of
assault with intent to commit a sexual offense in violation of section 220,
subdivision (a)(2). Section 220, subdivision (a)(2) provides that “any person
43
who assaults another person under 18 years of age with the intent to commit
rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289
shall be punished by imprisonment in the state prison for five, seven, or nine
years.”
“[A]ssault with intent to commit a specified sexual offense, in violation
of Section 220” is listed in section 667.6, subdivision (e)(9). Wandrey
contends, however, that subdivision (e)(9) should be read as applying only to
assault with intent to commit one of the sexual offenses enumerated in
section 667.6, subdivision (e). Because section 667.6, subdivision (e), does not
include violation of section 288, subdivision (a), Wandrey argues his
convictions for assault with intent to commit this non-forcible offense are not
subject to sentencing under section 667.6.20 With respect to lewd and
lascivious conduct, section 667.6, subdivision (e) lists only violation of
subdivision (b)—commission of a lewd and lascivious act by use of “force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person.”21
20Although Wandrey did not raise this objection in the trial court, his
argument “raises a claim of unauthorized sentence that is reviewable even in
the absence of an objection in the trial court. (People v. Stowell (2003) 31
Cal.4th 1107, 1113; People v. Smith (2001) 24 Cal.4th 849, 852.)” (People v.
Maharaj (2012) 204 Cal.App.4th 641, 648.)
21 With reference to lewd acts based on touching Doe’s vagina, Wandrey
points out that section 667.6, subdivision (e)(8) describes “[s]exual
penetration, in violation of subdivision (a) or (g) of Section 289.” Subdivision
(a) of section 289 refers to sexual penetration “accomplished against the
victim’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person.” Wandrey does
not explain how the inclusion of section 289, subdivision (g), supports his
argument: That subdivision refers to sexual penetration “accomplished
against the victim’s will by threatening to use the authority of a public
44
Wandrey argues that by referring to “assault with intent to commit a
specified sexual offense, in violation of Section 220,” section 667.6, subdivision
(e), meant to include only assaults with intent to commit a sexual assault
specified in section 667.6 and not “ ‘any’ sexual offense in the Penal Code.”
Otherwise, he maintains, the term “specified” in section 667.6, subdivision
(e)(9), would have no meaning. “ ‘If possible, significance should be given to
every word, phrase, sentence and part of an act in pursuance of the
legislative purpose.’ (Select Base Materials[, Inc. v. Board of Equal. (1959)]
51 Cal.2d 640, 645); ‘a construction making some words surplusage is to be
avoided.’ (Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397,
400.)” (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.)
The principles of statutory construction Wandrey relies on are correct,
but we disagree with his conclusion. In our view, the most plausible
interpretation of section 667.6, subdivision (e)(9), is that “a specified sexual
offense” refers to the sexual offenses specified in section 220.
First, the evolution of section 667.6 indicates this is the correct
interpretation. Prior to 1987, section 667.6 did not apply to violations of
section 220. (See Stats. 1987, ch. 1068, § 4; Assem. Bill No. 1826 (1987–1988
Reg. Sess.) § 4.)22 In 1988, subdivisions (c) and (d) of section 667.6 were
official to incarcerate, arrest, or deport the victim or another,” which does not
describe a forcible offense.
22 Section 667.6, subdivision (d) of the statute read: “A full, separate,
and consecutive term shall be served for each violation of subdivision (2) or
(3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289,
or of committing sodomy or oral copulation in violation of Section 286 or 288a
by force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person if the crimes involve separate victims
or involve the same victim on separate occasions.” (Stats. 1987, ch. 1068,
§ 4.)
45
amended to add to the list of offenses for which a full, separate, and
consecutive term was required, “each violation of Section 220, other than an
assault with intent to commit mayhem, provided the person has been
convicted previously of violating Section 220 for an offense other than an
assault with intent to commit mayhem[.]” (Stats. 1988, ch. 1185, § 1; Assem.
Bill No. 4284 (1987–1988 Reg. Sess.) § 1.) Since section 220 refers to assaults
with intent to commit mayhem or several enumerated sexual offenses, the
wording of section 667.6’s reference to section 220 unambiguously includes all
the sexual offenses enumerated in section 220.
Section 667.6 was subsequently amended several times to add
additional offenses,23 but the language pertaining to section 220 remained the
same until 2006, when legislative and initiative amendments changed the
structure of the statute to list the qualifying offenses in subdivision (e) and
changed the wording related to section 220 to its current form: “As a present
offense under subdivision (c) or (d), assault with intent to commit a specified
sexual offense, in violation of Section 220.” (Stats. 2006, ch. 337, § 32, eff.
Sept. 20, 2006; initiative measure (Proposition 83) § 11, eff. Nov. 1, 2006.) As
far as we are aware, the legislative history for the 2006 amendments
indicates no intent to change the intended scope of the reference to section
220.
Further support for reading “specified sexual offense” in section 667.6,
subdivision (e)(9), as referring to a sexual offense specified in section 220
appears when the language of this subdivision is compared to subdivision
(e)(10) of the statute. Subdivision (e)(10), describing offenses supporting
23For example, continuous sexual abuse of a child was added to section
288.5, subdivision (c) in 1989 (Stats. 1989, ch. 1402, § 7), and specified
subdivisions of sections 288a and 286 were added in 1993 (Stats. 1993,
ch. 127, § 1).
46
enhancements under subdivisions (a) or (b) of section 667.6, refers to “an
offense committed in another jurisdiction that includes all of the elements of
an offense specified in this subdivision.” (Italics added.) This language
demonstrates that the Legislature knows how to express a reference to
offenses specified within the same statute. Had the Legislature intended to
include in subdivision (e)(9) only assaults with intent to commit a sexual
offense specified within section 667.6, it could easily have worded subdivision
(e)(9), to refer to “assault with intent to commit a sexual offense specified in
this subdivision, in violation of Section 220”—as it did in at least one statute
referring to section 220.24
“ ‘It is a settled rule of statutory construction that where a statute, with
reference to one subject contains a given provision, the omission of such
provision from a similar statute concerning a related subject is significant to
show that a different legislative intent existed with reference to the different
statutes.’ ” (In re Jennings (2004) 34 Cal.4th 254, 273, quoting People v.
Norwood (1972) 26 Cal.App.3d 148, 156.) That the Legislature did not define
the assaults included in section 667.6, subdivision (e)(9) by reference to
sexual offenses “specified in this subdivision” supports a view the Legislature
did not intend to change the scope of subdivision (e)(9) by including assault
24 Section 1203.066 provides that certain persons convicted of violating
sections 288 or 288.5 shall not be granted probation or specified other relief,
such as those who committed the offense “by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or
another person,” caused bodily injury to the child or used a weapon during
commission of the offense. (§ 1203.066, subd. (a)(1), (2) & (4).) Subdivision
(a)(5) of the statute refers to a person who has previously been convicted of
violating enumerated statutes, including “assaulting another person with
intent to commit a crime specified in this paragraph in violation of Section
220.” (Italics added.)
47
with intent to commit a sexual offense specified in section 667.6 rather than
one specified in section 220.
As the Attorney General points out, the phrasing of section 667.6’s
reference to offenses violating section 220 is not unique: Several provisions of
the Penal Code which refer to violations of section 220 in descriptive terms
(as opposed to simply by number) use substantially the same language.
(§§ 1203.06, subd. (1)(G) [probation prohibition for use of firearm in
commission of offenses including “[a]ssault with intent to commit a specified
sexual offense, in violation of Section 220”; 1203.065, subd. (b)(1) [probation
limitation for person convicted of violating “[s]ection 220 for assault with
intent to commit a specified sexual offense”]; 1203.075, subd. (a)(7) [probation
prohibition for infliction of great bodily injury during “[a]ssault with intent to
commit a specified sexual offense, in violation of Section 220”]; 12022.3
[enhancement for “each violation of Section 220 involving a specified sexual
offense”]; 12022.8 [enhancement for infliction of great bodily injury in a
violation of Section 220 involving a specified sexual offense]; 667.5,
subd. (c)(15) [“violent felony” includes “[a]ssault with the intent to commit a
specified felony, in violation of Section 220”].) Indeed, the title of the statute
(albeit unofficial) uses this phrase: “Assault with intent to commit mayhem,
rape, sodomy, oral copulation or other specified offense . . .” (West’s
Annotated California Codes) or “Assault with intent to commit mayhem or
specified sex offenses . . .” (Deerings California Codes Annotated).
Wandrey’s preferred interpretation is further undermined by
comparison of subdivision (e)(9) to the other paragraphs of subdivision (e) of
section 667.6. All but one of the offenses in subdivision (e) are identified with
a descriptive term followed by “in violation of” a statutory reference. For
example: “Rape, in violation of paragraph (2), (3), (6) or (7) of subdivision (a)
48
of Section 261”; “Rape or sexual penetration, in concert, in violation of Section
264.1”; “Continuous sexual abuse of a child, in violation of Section 288.5”; and
“Lewd and lascivious act, in violation of subdivision (b) of Section 288.”
(§ 667.6, subd. (e)(1), (3), (5) & (6).) Consistent with this structure,
subdivision (e)(9), identifies the offense descriptively and by reference to the
proscribing statute—assault with intent to commit a specified sexual offense,
in violation of section 220. Reading “[a]ssault with intent to commit a
specified sexual offense, in violation of Section 220” to mean assault with
intent to commit an offense specified in section 667.6 would be inconsistent
with the phraseology of all the other paragraphs of subdivision (e) except
subdivision (e)(10)—and subdivision (e)(10), as discussed above, expressly
refers to “an offense specified in this subdivision.”
Wandrey argues “it is the forcible nature of a lewd act that adds an
offense to section 667.6’s subdivision (e) list.”25 Not entirely: Continuous
sexual abuse of a child (§ 288.5) is on the list and does not necessarily require
forcible conduct. The list also includes at least one nonforcible form of
several other offenses, including rape, sodomy, oral copulation and sexual
penetration accomplished “against the victim’s will by threatening to use the
25 Wandrey cites People v. Goodliffe (2009) 177 Cal.App.4th 723 as
“noting that Section 667.6[, subdivision] (e) distinguishes between ‘a forcible
lewd act on a child as defined by section 288, subdivision (b)’ and a
‘nonforcible molestation[]’ of the same victim.” The distinction he quotes was
actually spelled out in People v. Maharaj, supra, 204 Cal.App.4th at
page 649, which explained that the defendant in Goodliffe was convicted of
one offense specified in section 667.6, subdivision (e)—a lewd act in violation
of section 288, subdivision (b)—and three “nonforcible molestations of the
same victim.” (Maharaj, at p. 649.) The “nonforcible molestations” were
violations of statutes not listed in section 667.6, subdivision (e). Neither
Goodliffe nor Maharaj involved sentencing for convictions of sexual assault in
violation of section 220 and neither provide guidance on the interpretation of
subdivision (e)(9) of section 667.6.
49
authority of a public official to incarcerate, arrest or deport the victim or
another.” (§ 667.6, subd. (e)(1) [violation of § 261, subd. (7)], (e)(4) [violation
of § 286, subd. (k)], (e)(7) [violation of § 287, subd. (k)], (e)(8) [violation of
§ 289, subd. (g)].)26
To be sure, the sexual offenses designated in section 667.6, subdivision
(e) as subject to consecutive full-term sentences are generally the more
egregious forms of each type of offense. Wandrey’s point, presumably, is that
the lewd acts he was convicted of did not rise to this level and therefore did
not justify the sentence he received. But the Legislature, which deems
assault with intent to commit an offense specified in section 220 a “violent
felony” (§ 667.5, subd. (c)(15)), has determined that assaults with intent to
26 The concept of force is not absent from a violation of section 220 even
if the lewd act intended would not require proof of physical force. Here, with
respect to odd-numbered counts 49 through 219, the jury was instructed
pursuant to CALCRIM No. 890 that the People were required to prove
Wandrey “did an act that by its nature would directly and probably result in
the application of force to a person”; “when [Wandrey] acted, he was aware of
facts that would lead a reasonable person to realize that his act by its nature
would directly and probably result in the application of force to someone”;
and “when the defendant acted, he had the present ability to apply force to a
person.”
The “force” contemplated by this instruction, however, is not the same
as what is required for “forcible” sexual offenses. The jury here was
instructed, with respect to sexual assault under section 220, that “[t]he terms
application of force and apply force mean to touch in a harmful or offensive
manner. The slightest touching can be enough if it is done in a rude or angry
way. Making contact with another person, including through his or her
clothing, is enough. The touching does not have to cause pain or injury of any
kind.” In contrast to sexual assault, to prove commission of a sexual act by
means of force, the force must be sufficient to overcome the victim’s will (e.g.,
CALCRIM No. 1000 [rape by force]; CALCRIM No. 1045 [penetration by
force]) or, for a lewd and lascivious act on a child, “substantially different
from or substantially greater than the force needed to accomplish the act
itself” (CALCRIM No. 1111).
50
commit the sexual offenses included in section 220 warrant punishment
under section 667.6. If section 667.5, subdivision (e)(9) is to be limited to a
subset of such assaults—those with intent to commit more egregious forms of
the sexual offenses specified in section 220—it is for the Legislature to
impose this limitation.27
B.
Consecutive Sentencing Pursuant to Section 667.6
Did Not Violate Wandrey’s Right to a Jury Trial
As we have said, the trial court imposed sentence on all but 12 of
Wandrey’s convictions pursuant to section 667.6, subdivision (d), which
mandates imposition of full, separate, and consecutive terms “if the crimes
involve . . . the same victim on separate occasions.” Wandrey contends he
was deprived of his constitutional right to a jury trial when the trial court
made the factual determination that the offenses were committed on separate
occasions.28 He reasons that this factual finding increased the mandatory
27 As this case illustrates, the inclusion of all assaults with intent to
commit sex offenses in violation of section 220 exacerbates the potential for
dramatic disparities in sentencing resulting from prosecutors’ discretion to
charge the same conduct either as continuous sexual abuse of a child
(§ 288.5) or as separate sexual assaults (§ 220). A conviction for continuous
sexual abuse of a child carries a presumptive sentence of 12 years and a
maximum sentence of 16 years. By instead charging Wandrey with
numerous violations of section 220, triggering sentencing under section 667.6,
the prosecutor increased Wandrey’s sentence exposure to hundreds of years—
the same sentencing exposure he would have had if his sexual acts had been
even more egregious in nature or circumstance (i.e., even more invasive
sexual offense, use of physical force or weapon, threat of bodily injury). As we
have indicated, this sentencing disparity may warrant review by the
Legislature.
28This issue is currently before the California Supreme Court in People
v. Catarino, review granted January 19, 2022, S271828. The court limited
the issues to the following: Does section 667.6, subdivision (d), which
requires that a full, separate, and consecutive term must be imposed for
51
minimum sentence for his offenses and, under Alleyne v. United States (2013)
570 U.S. 99, 103 (Alleyne), “any fact that increases the mandatory minimum
is an ‘element’ that must be submitted to the jury.”
Alleyne was based on “the original meaning of the Sixth Amendment”
and the United States Supreme Court’s earlier decision in Apprendi v. New
Jersey (2000) 530 U.S. 466 (Apprendi), which held that “ ‘[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’ ” (Id. at p. 525; Alleyne, supra, 570 U.S. at
p. 103.) Alleyne held that a fact increasing the statutory minimum is as
much an element that must be submitted to the jury as a fact increasing the
statutory maximum. (Id. at p. 103.) In so doing, the court overruled its prior
decision in Harris v. United States (2002) 536 U.S. 545, which had
distinguished the two situations.
People v. King (2010) 183 Cal.App.4th 1281, a case Wandrey does not
address in his briefs, summarily rejected the argument that the “separate
occasions” issue under section 667.6, subdivision (d), must be submitted to
the jury, stating, “the United States and California Supreme Courts have
held that the decision whether to run individual sentences consecutively or
concurrently does not implicate the Sixth Amendment right to jury trial.
[Citations.]” (King, at p. 1324.) Oregon v. Ice (2009) 555 U.S. 160 (Ice)
provides the explanation. The court explained that Apprendi and Blakely v.
Washington (2004) 542 U.S. 29629 were “rooted in the historic jury function—
certain offenses if the sentencing court finds that the crimes involved the
same victim on separate occasions, comply with the Sixth Amendment to the
United States Constitution?
Blakely “clarified that ‘the “statutory maximum” for Apprendi
29
purposes is the maximum sentence a judge may impose solely on the basis of
52
determining whether the prosecution has proved each element of an offense
beyond a reasonable doubt,” while the question whether the Sixth
Amendment mandates “jury determination of any fact declared necessary to
the imposition of consecutive, in lieu of concurrent, sentences” “concerns a
sentencing function in which the jury traditionally played no part[.]” (Ice, at
pp. 163–164.) “The decision to impose sentences consecutively is not within
the jury function that ‘extends down centuries into the common law.’
Apprendi, [supra,] 530 U.S. at 477. Instead, specification of the regime for
administering multiple sentences has long been considered the prerogative of
state legislatures.” (Ice, at p. 168.)
Wandrey argues that Ice, which involved discretionary consecutive
sentencing, does not control the result in the present case because Alleyne
changed the “legal landscape” with respect to mandatory consecutive
sentences. This distinction is irrelevant: Ice did not turn on the fact that the
statute at issue permitted, but did not require, judges to impose consecutive
sentences.30 Rather, the court explained that “twin considerations—
historical practice and respect for state sovereignty—counsel against
extending Apprendi’s rule to the imposition of sentences for discrete crimes.
The decision to impose sentences consecutively is not within the jury function
that ‘extends down centuries into the common law.’ [Citation.] Instead,
specification of the regime for administering multiple sentences has long been
the facts reflected in the jury verdict or admitted by the defendant.’ ”
(Washington v. Recuenco (2006) 548 U.S. 212, 216, quoting Blakely v.
Washington, supra, 542 U.S. at p. 303.)
30The argument also overlooks the fact that even without the separate
occasions findings, section 667.6, subdivision (c), authorized imposition of full
consecutive sentences as an exercise of discretion. In fact, the trial court here
exercised its discretion to impose such full consecutive terms on the counts as
to which it did not find separate occasions.
53
considered the prerogative of state legislatures.” (Ice, supra, 555 U.S. at
p. 168.)
Alleyne, like Apprendi, was concerned with factfinding that increased
the penalty for a particular offense. Applying the principle that “[t]he
touchstone for determining whether a fact must be found by a jury beyond a
reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of
the charged offense” (Alleyne, supra, 570 U.S. at p. 107), the court concluded
that a fact that increases the mandatory minimum sentence for the offense
“is an ‘element’ that must be submitted to the jury.” (Id. at p. 103.) The
factual question whether multiple offenses were committed on separate
occasions does not involve an element of any discrete offense.
Nothing in Alleyne alters the court’s analysis in Ice of factfinding
related to consecutive sentencing. As the California Supreme Court observed
two years after Alleyne was decided: “In Ice, the high court concluded that
the Sixth Amendment’s protections must be viewed in light of the jury trial
right as it existed at the time the Constitution was adopted, and cannot
intrude unduly on the sovereign states’ historical dominion over the
subsequent development of their penal systems. Hence, the Ice court
determined, Apprendi has no application to sentencing decisions in which
juries played no factfinding role at common law.” (People v. Mosley (2015)
60 Cal.4th 1044, 1049–1050.)31
31Mosley held there is no right to a jury trial on factual findings
subjecting a defendant to sex offender residency restrictions. (People v.
Mosley, supra, 60 Cal.4th at pp. 1048, 1050.)
54
C.
The Error in Imposing Upper Terms Without Jury Findings
on Aggravating Circumstances Requires Remand
Wandrey contends this case must be remanded for resentencing
because a change in law subsequent to his sentencing hearing has rendered
his upper term sentences unlawful.
At the time Wandrey was sentenced, section 1170, subdivision (b), gave
the trial courts broad discretion to decide which of the three terms specified
for an offense would best serve the interests of justice. (See § 1170, subd. (b),
as amended by Stats. 2020, ch. 29, § 14.) Effective January 1, 2022, Senate
Bill No. 567 (2021–2022 Reg. Sess.), amended section 1170, subdivision (b), in
a number of respects, one of which was to make the middle term of
imprisonment the presumptive sentence. (See § 1170, subd. (b)(2), as
amended by Stats. 2021, ch. 731, § 1.3.) Under the amended statute, “[W]hen
a judgment of imprisonment is to be imposed and the statute specifies three
possible terms, the court shall, in its sound discretion, order imposition of a
sentence not to exceed the middle term, except as otherwise provided in
paragraph (2).” (§ 1170, subd. (b)(1).) “A trial court may impose an upper
term sentence only where there are aggravating circumstances in the crime
and the defendant has either stipulated to the facts underlying those
circumstances or they have been found true beyond a reasonable doubt.
(§ 1170, subd. (b)(1)–(2).)” (People v. Flores (2022) 75 Cal.App.5th 495, 500.)
The parties agree that the Senate Bill No. 567 amendments apply
retroactively to this case as “an ameliorative change in the law applicable to
all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018)
55
4 Cal.5th 299, 308.)” (People v. Flores (2021) 73 Cal.App.5th 1032, 1038.)32
The Attorney General, however, argues remand is unnecessary because the
error was harmless.
Error in relying on facts not found by the jury to impose an aggravated
term is subject to review under the harmless error standard of Chapman v.
California (1967) 386 U.S. 18, as applied in Neder v. United States (1999)
527 U.S. 1 and Washington v. Recuenco, supra, 548 U.S. 212. (People v
Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval).) Sandoval, addressing
Cunningham33 error—denial of the right to a jury trial on aggravating
circumstances under statute permitting sentencing judge to find the facts
exposing a defendant to an elevated sentence—described the relevant
harmless error analysis as requiring the reviewing court to “determine
whether, if the question of the existence of an aggravating circumstance or
circumstances had been submitted to the jury, the jury’s verdict would have
authorized the upper term sentence.” (Sandoval, at p. 838.) “[I]f a reviewing
court concludes, beyond a reasonable doubt, that the jury, applying the
beyond-a-reasonable-doubt standard, unquestionably would have found true
at least a single aggravating circumstance had it been submitted to the jury,
the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
The issue in the present case is not precisely the same as with
Cunningham error. In the Cunningham situation, the trial court has
32 “ ‘For the purpose of determining the retroactive application of an
amendment to a criminal statute, the finality of a judgment is extended until
the time has passed for petitioning for a writ of certiorari in the United
States Supreme Court.’ ([People v. Lopez (2019) 42 Cal.App.5th 337,] 341–
342, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306.)” (People v.
Flores, supra, 73 Cal.App.5th at p. 1038.)
33 Cunningham v. California (2007) 549 U.S. 270.
56
properly exercised its discretion in determining the sentence and the question
is whether the facts underlying its decision were determined according to the
required standard. The Senate Bill No. 567 amendments add an additional
component, changing the framework within which the trial court exercises its
discretion by specifying a legislatively determined presumptive sentence.
This means we must ask both whether we can be certain the jury would have
found beyond a reasonable doubt the aggravating circumstances relied on by
the court and whether the trial court would have exercised its discretion in
the same way if it had been aware of the statutory presumption in favor of
the middle term. (People v. Lopez (2022) 78 Cal.App.5th 459, 463, 466–467,
fns. 10 & 11.)34
The trial court here relied upon several aggravating factors. First, the
court found Wandrey took advantage of a position of trust and confidence
(Cal. Rules of Court, rule 4.421(a)(11)),35 in that he “conceal[ed] himself as a
person who cared for Jane Doe and a father figure and as a person who was
in a relationship with Jane Doe’s mother for the purposes of allowed
continued unsupervised access to Jane Doe at a young and vulnerable age,”
allowing him to “commit over 100 felony offenses in secret and without
resistance from Jane Doe or anyone else that would care for her.” Second, the
court found the victim was particularly vulnerable (rule 4.421(a)(3)), as she
was “only 12 years old when [Wandrey] began to molest her,” he was aware
34 People v. Lopez, supra, 78 Cal.App.5th 459, disagreed with People v.
Flores, supra, 75 Cal.App.5th 495, which held that where a defendant is
entitled to retroactive application of Senate Bill No. 567, an upper term
sentence may be affirmed as long as it can be determined, beyond a
reasonable doubt, that the jury would have found at least one aggravating
circumstance true beyond a reasonable doubt. (Lopez, at p. 467, fn. 11;
Flores, at pp. 500–501.)
35 Further references to rules will be to the California Rules of Court.
57
she was “being raised in an already troubled or difficult environment and
without adequate adult supervision or care,” he was aware she had no father
figure and “was at an age and disposition where a person who appeared to
fulfill that role would yield enormous influence over her for many years to
come,” and “because of her young age she was not only powerless to
physically repel his assaults, she also lacked the life experience to even know
that what the defendant was doing to her was criminal.” Third, the court
found the manner in which the crimes were committed indicated planning
(rule 4.421(a)(8)), in that Wandrey “incorporate[d] sexual molestation into
what Jane Doe believed was otherwise normal behavior essentially grooming
her to accept his sexual assaults as appropriate conduct allowing him over
time to increase the severity of the assaults.” The court found these
aggravating circumstances “overwhelmingly” outweighed the single
mitigating circumstance—no prior criminal record (rule 4.423(b)(1))—which
it gave “little to zero weight . . . in light of the sheer number of violent felony
convictions” in the present case.
As Sandoval cautioned, “to the extent a potential aggravating
circumstance at issue in a particular case rests on a somewhat vague or
subjective standard, it may be difficult for a reviewing court to conclude with
confidence that, had the issue been submitted to the jury, the jury would
have assessed the facts in the same manner as did the trial court.”
(Sandoval, supra, 41 Cal.4th at p. 840.) The aggravating factors the court
relied on here are of this nature, requiring “an imprecise quantitative or
comparative evaluation of the facts.” (Ibid.) While it may seem intuitively
obvious that Wandrey abused a position of trust, this is less true as to
whether Doe was particularly vulnerable and whether Wandrey’s offenses
indicated planning. Some degree of speculation would necessarily be
58
required for us to conclude the jury would have agreed with the trial court’s
evaluation, or that the trial court would have exercised its sentencing
discretion in the same way if it had taken the statutory presumption in favor
of the middle term into account. Mindful of Sandoval’s caution, and in order
to give Senate Bill No. 567 its full effect, remand for resentencing in light of
the amendments to section 1170, subdivision (b), is appropriate.
DISPOSITION
The matter is remanded for resentencing in light of section 1170,
subdivision (b), as amended by Senate Bill No. 567. In all other respects, the
judgment is affirmed.
59
_________________________
Mayfield, J.*
We concur:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
People v. Wandrey (A161691)
* Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
60
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Mark Urioste
Attorney for Appellant: By appointment of the Court of Appeal
under the First District Appellate Project
Dirck Newbury
Attorneys for Respondent: Rob Bonta
Attorney General of California
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Alice B. Lustre
Supervising Deputy Attorney General
J. Michael Chamberlain
Deputy Attorney General
61