Filed 9/27/22 P. v. Diaz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B314923
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA475327)
v.
LUIS EDEN DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Henry J. Hall, Judge. Affirmed in part,
vacated in part and remanded.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
A jury found Luis Diaz guilty on multiple counts of child
sex abuse. The trial court sentenced Diaz to an aggregate state
prison sentence of 175 years to life. On appeal, Diaz contends the
trial court erred in instructing the jury with CALCRIM
No. 1191B, however he concedes that the arguments he advances
were rejected in People v. Villatoro (2012) 54 Cal.4th 1152
(Villatoro), and that we must follow our high court’s decision.
Diaz further contends the imposition of sentence pursuant to
Penal Code section 667.61 (One Strike law), as to his conviction
for continuous sexual abuse of a child violated the ex post facto
clauses of the federal and state Constitutions. Respondent
asserts the trial court erred in awarding Diaz presentence
conduct credits. We vacate the sentence imposed on the
continuous sexual abuse of a child count, strike the presentence
custody credits, and remand for resentencing. In all other
respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Diaz was married to Marta. In 2019, four of Marta’s
granddaughters revealed that Diaz had sexually abused them. In
2020, the People filed an amended information alleging that
between April 19, 2008 and April 18, 2013, Diaz committed the
crimes of sexual intercourse or sodomy with a child under the age
of 10 (Pen. Code, § 288.7, subd. (a); count 2), and oral copulation
or sexual penetration with a child under the age of 10 against
M.Y. (§ 288.7, subd. (b); count 3);1 between April 19, 2008 and
April 18, 2016, Diaz committed the crime of lewd act upon a child
against M.Y. (§ 288, subd. (a); counts 4, 5); between June 28,
2017 and October 25, 2018, Diaz committed the crime of lewd act
1 All undesignated statutory references are to the Penal Code.
2
upon a child under the age of 14 against M.R. (§ 288, subd. (a);
counts 6, 7, 8, 9); between June 1, 2006 and May 31, 2013, Diaz
committed the crime of lewd act upon a child against B.Y. (§ 288,
subd. (a); counts 10, 11); and between April 26, 2002 and
April 25, 2008, Diaz committed the crime of continuous sexual
abuse of a child against K.H. (§ 288.5, subd. (a); count 12).
At trial, the four victims testified about Diaz’s sexual
abuse. They described Diaz touching their genital areas under
and over their clothes, thrusting and rubbing his penis against
them, and touching their breasts.
The jury found Diaz guilty on all counts. On counts 4
through 12, the jury also found true the allegation that Diaz
committed a violation of section 288, subdivision (a) against more
than one victim, within the meaning of section 667.61,
subdivisions (b) and (e), the One Strike law. The trial court
sentenced Diaz to an aggregate state prison term of 175 years to
life, consisting of the following consecutive terms: 25 years to life
on count 2 (§ 288.7, subd. (a)); 15 years to life on count 3 (§ 288.7,
subd. (b)); 15 years to life on counts 4 to 11, pursuant to the One
Strike law (§ 288, subd. (a), 667.61, subd. (b), (c)(8), (e)(4)); and 15
years to life on count 12, pursuant to the One Strike law (§ 288.5,
subd. (a), 667.61, subd. (c)(9), (e)(4)). The trial court awarded
Diaz 1,062 days of presentence credits, consisting of 924 days of
actual credit and 138 days of conduct credit.
Diaz timely appealed.
DISCUSSION
I. CALCRIM No. 1191B
The trial court instructed the jury with CALCRIM
No. 1191B, which, after identifying the charged crimes, stated: “If
the People have proved beyond a reasonable doubt that the
3
defendant committed one or more of these crimes, 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 the other sex offenses charged in
this case. [¶] If you find that the defendant committed one or
more of these crimes, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of another crime. The
People must still prove each charge and allegation beyond a
reasonable doubt.” Diaz contends this instruction violated his
due process rights under the Fourteenth Amendment to a
fundamentally fair trial. He asserts the instruction allowed the
jury to improperly infer from the evidence supporting one
charged offense that he had the propensity to commit the other
charged offenses.
However, Diaz acknowledges the arguments he makes here
were considered and rejected by the California Supreme Court in
Villatoro, supra, 54 Cal.4th 1152, and the court upheld a
substantively similar instruction. The Villatoro court concluded
Evidence Code section 1108 permits a jury to consider evidence
that a defendant committed charged sexual crimes as propensity
evidence relevant to other charged sexual offenses. (Id. at
p. 1164.) The court further rejected the argument that
interpreting Evidence Code section 1108 to include charged
offenses leads to impermissible “ ‘bootstrapping of verdicts.’ ” (Id.
at p. 1165.) Instead, the court found the jury instruction properly
“affirmed that evidence that the defendant committed a charged
offense ‘is not sufficient by itself to provide the defendant is
guilty of another charged offense.’ ” (Ibid.) As Diaz concedes, we
4
must follow Villatoro. (People v. Letner and Tobin (2010) 50
Cal.4th 99, 197 [“ ‘Courts exercising inferior jurisdiction must
accept the law declared by courts of superior jurisdiction. It is not
their function to attempt to overrule decisions of a higher
court.’ ”]; Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) We therefore must reject his argument that the
trial court erred in instructing the jury with CALCRIM No.
1191B.2
II. Ex Post Facto Violation
Diaz further contends the application of the One Strike law
to the conviction for continuous sexual abuse of a child (count 12)
violated the federal and California constitutional prohibitions
against ex post facto laws. We conclude that because of the
ex post facto prohibition, it was necessary for the jury to find at
least one act supporting the conviction occurred after a specific
date. The jury was not asked to make such findings and we
cannot conclude the error was harmless beyond a reasonable
doubt. We therefore vacate the sentence as to count 12 and
remand for resentencing.
A. Background
Count 12 alleged Diaz committed continuous sexual abuse
of a child against K.H. in violation of section 288.5, subdivision
(a). The People were required to prove Diaz had recurring access
to K.H. or lived in the same home with her; that he engaged in
three or more acts of lewd and lascivious conduct with K.H.; that
three or more months passed between the first and last acts; and
that K.H. was under the age 14 at the time of the acts. (§ 288.5,
subd. (a); see CALCRIM No. 1120.)
2Diaz indicates he has raised the issue to preserve it for future
review. We acknowledge that he has done so.
5
At trial, K.H. testified that she was born on April 26, 1994.
She described an occasion when she was eight years old, and Diaz
was babysitting her and her younger brother. Diaz, K.H., and
her younger brother were on a bed, watching a movie. Diaz
began massaging K.H.’s shoulders and back. He moved K.H. so
that she was lying on top of him with her chest touching his.
Diaz grabbed K.H.’s arms so she could not move them, then he
“rubb[ed] [her] up and down against him.” K.H.’s chest was
against Diaz’s chest, and her vagina against his penis.
On another occasion when K.H. was “about 11,” she was
sleeping in a bed with her grandmother and Diaz. K.H. felt
tugging on the blanket that separated her from Diaz. When she
turned to look at Diaz, his eyes were closed. She later felt
tugging again and the blanket was pulled away. K.H. felt Diaz
thrusting his penis against her buttocks. On a subsequent
occasion, when K.H. was around 11 years old and was again
sleeping in a bed with her grandmother and Diaz, she felt
tugging on the blanket she had wrapped completely around
herself. K.H. saw Diaz behind her, tugging on the blanket. At
some point the tugging stopped, but K.H. felt Diaz thrusting his
penis against her buttocks.
A “couple months” later, K.H. complained about her feet.
Diaz began massaging her feet and lower legs. After a while,
Diaz licked K.H.’s toe. She kicked him. At trial, the prosecutor
asked K.H. a series of questions about the timing of the incident:
“[Prosecutor]: And about how old were you when that
happened?
“[K.H.]: I’m not sure.
“[Prosecutor]: Were you—did this happen before or after
the very last time that he was thrusting against you in bed?
6
“[K.H.]: After.
“[Prosecutor]: Do you remember how long after? Was it a
period of weeks? Months? Years?
“[K.H.]: I want to say it was months.”
The prosecutor established that K.H. was “about 11 years
old” at the time of both thrusting incidents. The prosecutor then
asked:
“[Prosecutor]: And so the massaging happened, you said,
how much longer after that last incident in the bed with him
thrusting against you? How long after that did the massaging
start?
“[K.H.]: I want to say about like more—like more time.
Like a couple months.
“. . .
“[Prosecutor]: Were you under the age of 14?
“[K.H.]: Yes.
“[Prosecutor]: What makes you know that you were under
the age of 14?
“[K.H.]: Because I was about middle school and by the time
I started middle school, all that had stopped.
“[Prosecutor]: And do you recall how old you were when you
started middle school?
“[K.H.]: I want to say I was about 13.”
The jury found Diaz guilty of the substantive offense
alleged in count 12 and found true the special allegation that he
had committed offenses specified in section 288 against more
than one victim in the case.
B. Discussion
Under the One Strike law, the trial court must impose an
indeterminate life sentence when a defendant is convicted of
7
certain sex offenses committed against children, when there are
additional specified circumstances. Here, in count 12, the People
alleged the One Strike law was applicable because Diaz
committed continuous sexual abuse of a child, in violation of
section 288.5 (§ 667.61, subd. (c)), and he was “convicted in the
present case . . . of committing an offense specified in subdivision
(c) against more than one victim.” (§ 667.61, subd. (e)(4).)
Section 288.5 was added to the list of qualifying offenses
under the One Strike law in an amendment effective
September 20, 2006. (Stats. 2006, ch. 337, § 33, p. 2639; People v.
Valenti (2016) 243 Cal.App.4th 1140, 1174 (Valenti).) Under both
the state and federal Constitutions, a legislature may not
“ ‘ “retroactively alter the definition of crimes or increase the
punishment for criminal acts.” ’ ” (People v. Grant (1999) 20
Cal.4th 150, 158, quoting Collins v. Youngblood (1990) 497 U.S.
37, 43, and California Dept. of Corrections v. Morales (1995) 514
U.S. 499, 504.) The amendment to the One Strike law adding
section 288.5 increased the punishment for that crime from a
possible upper term of 16 years to an indeterminate life sentence.
As a result, “the ex post facto clause prohibits sentencing
defendants under the One Strike law for section 288.5 violations
committed before September 20, 2006.” (Valenti, supra, 243
Cal.App.4th at p. 1174.)
Section 288.5 may be a “ ‘straddle’ offense,” in that it is
possible for the conduct constituting the crime to have occurred
both before and after the effective date of a particular statute.
Thus, in Grant, the court considered whether the ex post facto
clauses of the federal and state Constitutions were violated when
the conduct in question occurred both before and after the
effective date of section 288.5. The court explained, “ ‘Section
8
288.5 punishes a continuous course of conduct, not each of its
three or more constituent acts. [Citations.] A continuous course
of conduct offense cannot logically be “completed” until the last
requisite act is performed. Where an offense is of a continuing
nature, and the conduct continues after the enactment of a
statute, that statute may be applied without violating the ex post
facto prohibition.’ [Citation.]” (Grant, supra, 20 Cal.4th at
p. 159.)
Here, the parties agree the prohibition against ex post facto
laws would disallow application of the One Strike law to count 12
unless at least one of the acts committed against K.H. occurred
after September 20, 2006. However, they disagree on how to
interpret the evidence in this case. Diaz argues the evidence did
not show that he committed any act of abuse against K.H. after
September 20, 2006. The People contend the last act “appears to
have been some months after the third incident and before
middle school started in September 2007 when [K.H.] was
thirteen in 2007.”
In her testimony, K.H. did not provide any specific dates
and instead only generally described how old she was when the
events occurred. As to Diaz’s last act of abuse, she testified that
she was under 14 and that it was “months” or “a couple months”
after the prior incident, which occurred when she was “about 11.”
She further testified the abuse stopped by the time she started
middle school, and she was “about 13” when she started middle
school. Based on her date of birth, K.H. was 11 years old between
April 26, 2005 and April 25, 2006. She turned 13 on April 26,
2007.
The evidence did not establish the date of the final act of
abuse, or a timeline definitively placing the final act before or
9
after September 20, 2006. K.H.’s testimony was approximate and
nonspecific. Indeed, the prosecutor’s questions appeared aimed
at establishing only that K.H. was under 14 years old. We are
thus confronted with a situation similar to that presented in
People v. Hiscox (2006) 136 Cal.App.4th 253 (Hiscox). In Hiscox,
the defendant was sentenced pursuant to the One Strike law,
however, the prosecutor proved the underlying child molestation
charges with generic testimony that did not clearly establish
whether the defendant’s acts of molestation were committed on or
after the effective date of the law. (Hiscox, at p. 258.) On appeal,
the Attorney General argued some of the counts could
“reasonably be related” to conduct occurring after the effective
date and therefore there was no ex post facto violation. (Ibid.)
The Hiscox court rejected this argument and the idea that
the trial court could have engaged in judicial factfinding at
sentencing to determine when acts occurred. The court explained
that a “prosecutor who relies on generic testimony to support a
child molestation charge must establish a time frame for the
offenses sufficient to bring them within the scope of any statutory
or constitutional limitation on punishment.” (Id. at p. 260.)
Allowing the trial court to cure this failure by engaging in judicial
factfinding at sentencing “would raise serious Sixth Amendment
concerns. The right to a jury trial requires that ‘[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.’ [Citation.]”
(Ibid.)
The Hiscox court further explained that since the jury was
not asked to make findings about the time frame when the
10
offenses were committed, the court could not deem the verdicts
sufficient to establish the date of the offenses “unless the
evidence leaves no reasonable doubt that the underlying charges
pertained to events occurring on or after” the effective date of the
statute. (Hiscox, supra, 136 Cal.App.4th at p. 261.) “It would be
inappropriate for us to review the record and select among acts
that occurred before and after that date, or to infer that certain
acts probably occurred after that date. Hiscox has a
constitutional right to be sentenced under the terms of the laws
in effect when he committed his offenses. For a court to
hypothesize which acts the jury may have based its verdicts on,
or what dates might be attached to certain acts based on
ambiguous evidence, would amount to ‘judicial impingement
upon the traditional role of the jury.’ ” (Ibid., quoting Blakely v.
Washington (2004) 542 U.S. 296, 309.)
Similarly, in Valenti, this court considered an alleged
ex post facto violation related to application of the One Strike law
to a section 288.5 conviction, when the conduct may have
occurred both before and after the amendment to the law.
(Valenti, supra, 243 Cal.App.4th at p. 1175.) The jury was not
instructed that at least one act of abuse must have occurred after
the 2006 amendment. We concluded this was error under
Apprendi v. New Jersey (2000) 530 U.S. 466, and would be
harmless only if “the People prove beyond a reasonable doubt
that no substantial evidence supports a contrary finding on the
omitted element.” (Valenti, supra, 243 Cal.App.4th at pp. 1176–
1177.)
Here, as in Hiscox and Valenti, the jury was not instructed
to make findings about the time frame of the acts relevant to the
11
continuous sex abuse count.3 This was error. The People assert
the error was harmless beyond a reasonable doubt because the
evidence was overwhelming that the last act of abuse occurred
after September 20, 2006. We disagree. K.H. did not provide a
specific date for any of the acts of abuse. She testified that she
was around 11 years old at the time of the second thrusting act,
and the final act occurred a “couple months” after that. As noted
above, K.H. was 11 years old between April 26, 2005 and April
25, 2006. Even if K.H. was almost 12 when the second to last act
occurred, her testimony that the final act was “months” or “a
couple months” after that could mean it occurred several months
before September 20, 2006. While K.H. testified the abuse
stopped by the time she was in middle school, and that she
started middle school when she was around 13 years old, she did
not testify that the abuse continued until she was around 13
years old.4
3 In their initial briefing, each party merely urged this court to
accept its interpretation of the evidence to support or refute the
claim that the application of the One Strike law to count 12
violated the prohibition against ex post facto laws. Pursuant to
Government Code section 68081, we invited the parties to submit
supplemental briefing addressing whether Diaz’s arguments
implicated the Sixth Amendment and the appropriate standard
for addressing error.
4 Atmost, K.H. testified, “I was about middle school,” when asked
how she knew she was under the age of 14 when the final act of
abuse occurred. We do not find the testimony “I was about
middle school” sufficiently clear to establish, beyond a reasonable
doubt, that the final act occurred after September 20, 2006.
12
The jury was not asked to make findings about the time
frame of Diaz’s acts against K.H. and the evidence leaves
reasonable doubt that the final act of abuse occurred after
September 20, 2006. Diaz has a constitutional right to be
sentenced under the terms of the laws in effect when he
committed his offenses. We therefore must vacate the One Strike
sentence imposed on count 12 and remand for resentencing.
(Hiscox, supra,136 Cal.App.4th at p. 262; People v. Riskin (2006)
143 Cal.App.4th 234, 244–245.)
III. Conduct Credits
Finally, the People contend the trial court erred in
awarding Diaz 138 days of presentence conduct credits. The
People argue Diaz was ineligible for conduct credits since he was
sentenced under the One Strike law. (People v. Dearborne (2019)
34 Cal.App.5th 250, 267; People v. Adams (2018) 28 Cal.App.5th
170, 182.) Diaz asserts the presentence conduct credit must
remain since the amendments to the One Strike law that
eliminated presentence conduct credit did not become effective
until September 20, 2006, thus raising the same issues as those
he argued as to the imposition of a One Strike sentence on count
12. However, Diaz ignores that he also received One Strike
sentences on counts 4 to 9, for acts alleged to have occurred after
2007. The evidence at trial clearly established that the acts
alleged in those counts occurred in or after 2007. Counts 4
through 9 concerned M.Y., who was born in 2002 and testified the
first acts of abuse occurred when she was five or six years old,
and M.R., who was born in 2007. The trial court imposed
indeterminate sentences on counts 4 to 9 pursuant to section
667.61. Diaz thus was ineligible to receive presentence conduct
credits. The 138 days of conduct credit are stricken.
13
DISPOSITION
The sentence imposed for count 12 is vacated. The matter
is remanded for resentencing on count 12 without application of
the One Strike law. In all other respects, the judgment is
affirmed. Upon resentencing, the court is instructed to
recalculate defendant’s custody credit to omit the previously
awarded conduct credits, amend the abstract of judgment to
reflect defendant’s new sentence, and forward a copy of the
amended abstract of judgment to the California Department of
Corrections and Rehabilitation.
ADAMS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14