Filed 10/18/22 P. v. Vasquez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B314884
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA466344)
v.
MARIO DAVID VASQUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed and remanded
with directions.
Waldemar D. Halka, 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, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Mario David Vasquez appeals from a judgment that
sentences him to 55 years to life for the sexual abuse of two
prepubescent sisters. He argues instructional, constitutional, and
sentencing errors. We correct a portion of his sentence that is
unauthorized but otherwise affirm the judgment.
FACTS
The two sisters (born in 2002 and 2007) were removed from
their parents’ custody at a very young age by the Department of
Children and Family Services. They were placed with their
paternal grandmother. Defendant Vasquez, who was married to
the grandmother but was not biologically related to the sisters,
was their step-grandfather. The sisters lived with their
grandmother and Vasquez in a one-bedroom apartment in Los
Angeles. They all slept in the single bedroom with the sisters in
a bunk bed (later, a queen-sized bed), and Vasquez and their
grandmother in their own bed. At some point, the sisters’ uncle
and his family began living in the same apartment; the four of
them slept in the living room. The sisters’ grandmother died in
2016, when the girls were 13 and 9 years old. Vasquez became
their legal guardian.
In 2018, the sisters separately reported to their social
workers that Vasquez had sexually abused them. Vasquez was
charged with seven counts of committing lewd or lascivious acts
upon a child under the age of 14 (counts 1 to 3 and 12 to 15; Pen.
Code, § 288, subd. (a)) and eight counts of sexual intercourse or
sodomy of a child 10 years of age or younger (counts 4 to 11; Pen.
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Code, § 288.7, subd. (a)).1 Counts 1 to 12 related to older sister
and corresponded to events occurring between 2007 and 2014.
Counts 13 to 15 related to younger sister and events occurring
between 2012 and 2017. As to the counts of lewd or lascivious
acts, the information alleged that Vasquez committed the crimes
upon more than one victim (§ 667.61, subd. (e)(4)), and that he
engaged in substantial sexual conduct with the victims, who were
under 14 years of age (§ 1203.066, subd. (a)(8)).2
1 All further undesignated statutory references are to the
Penal Code.
2 Section 667.61, known as the “One Strike Law,” provides
for enhanced indeterminate terms of either 15 or 25 years to life
when a jury has convicted the defendant of one or more
enumerated felony sex offenses (§ 667.61, subds. (a) & (b)) and
found certain factual allegations to be true (§ 667.61, subd. (e)).
The statute is considered an alternative sentencing scheme, not
an enhancement. (People v. Jones (1997) 58 Cal.App.4th 693,
708–709.) Pertinent to this case, the One Strike Law applied to
increase Vasquez’s sentence to 15 years to life for each lewd act
count under section 288, subdivision (a) because the jury found
true that multiple victims were involved.
Section 1203.066 provides, in pertinent part, that a trial
court may not grant probation, suspend the execution or
imposition of sentence, or utilize section 1385 to strike any
finding that brings the defendant within section 1203.066’s
provisions where the defendant is convicted of committing a lewd
or lascivious act in violation of section 288 and has substantial
sexual conduct with a victim who is under 14 years of age.
(§ 1203.066, subd. (a)(8).)
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1. Counts 1–12: Abuse of older sister
Older sister testified Vasquez sexually abused her from the
time she was five or six years old until she began to menstruate
at 11 or 12 years old. Vasquez initially touched her breasts,
vagina, and buttocks both under and over her clothing. She
asked him to stop and told him she did not like it, but he
persisted and told her they were just playing. He also made her
touch his penis and stroke it with her hand.
He inserted his penis into her vagina on more than one
occasion, beginning when she was six years old. She could not
recall specifically when or how many times this occurred because
she did not want to remember these encounters. Older sister
recalled feeling pain when she used the restroom after the first
time Vasquez penetrated her. There was blood on the tissue she
used to clean herself. The abuse occurred mostly when they were
in the bedroom or in the car.
During her testimony at trial, older sister recounted an
incident when she was 10 years old. Vasquez had driven their
grandmother to a casino. The sisters and Vasquez waited outside
in the car for their grandmother. Vasquez forced older sister to
orally copulate him. This disclosure at trial came as a surprise to
the prosecutor, defense counsel and the court. At the preliminary
hearing and in previous interviews, older sister had accused
Vasquez of forcing her to engage in sexual intercourse outside the
casino, not oral copulation. As a result, the prosecutor amended
count 11 to charge oral copulation of a child 10 years of age or
younger in violation of subdivision (b) of section 288.7, rather
than sexual intercourse with a child under subdivision (a) of that
section.
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Older sister did not report any of the abuse because
Vasquez warned her that she would be placed in foster care, and
she feared no one would believe her. She revealed the abuse only
after she learned from a social worker that younger sister had
reported abuse by Vasquez. Older sister described the abuse to a
female police officer and in a forensic interview at Stuart House,
a rape treatment center. Portions of her Stuart House interview
were played to the jury.
2. Counts 13–15: Abuse of Younger Sister
Younger sister also testified to sexual abuse by Vasquez
beginning when she was five years old until she was 10 years old
in 2017. She recalled coming home from school one day when she
was five. Her grandmother and older sister were chatting outside
the apartment building. Younger sister hugged Vasquez, who
was home alone watching television. Vasquez lifted up her skirt,
pulled down her underwear, and penetrated her in either the
anus or the vagina as she lay on her stomach watching television
in bed. She froze and Vasquez stopped after a while. This
happened only once.
Vasquez otherwise touched younger sister’s vagina when he
thought she was asleep. He typically stopped when she began to
move or wake up. Younger sister testified the touching occurred
between 20 to 30 times a year. It became more frequent after the
sisters’ grandmother died. Like her older sister, younger sister
kept the abuse secret out of fear that she would be removed from
the family. She finally revealed the abuse to a social worker
because she felt overwhelmed. She also worried that Vasquez
may have abused older sister. Younger sister’s statements to the
police and at Stuart House were played to the jury.
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3. Vasquez’s Admissions
After his arrest, Vasquez agreed to waive his rights under
Miranda v. Ariz. (1966) 384 U.S. 436 and talked to police. His
interview, recorded and translated from Spanish to English, was
played to the jury. Vasquez initially denied any wrongdoing.
After the detective used a ruse—telling Vasquez there was DNA
evidence implicating him—Vasquez made several admissions
about his contact with older sister.
Vasquez explained older sister would give him massages
because his back hurt. She would sit on top of him, sometimes
while he lay on his back and other times when he lay on his
stomach. He then admitted that his penis was inside of her
vagina twice while she was sitting on top of his stomach and
giving him a massage when she was 11 or 12 years old. He said
that each time he asked her to go away and ejaculated into a
blanket or towel. He asserted he was only a passive participant.
He admitted older sister once kissed his penis over his clothes.
He denied she orally copulated him. He also admitted kissing
her vagina once after she bathed when she was 11 or 12.
4. The Conviction and Sentence
At the July 2021 jury trial, the prosecution presented
evidence as we have described. The jury found Vasquez guilty on
all counts. As to all but one of the lewd or lascivious act charges
(counts 1 to 3 and 12 to 14), the jury found true that Vasquez
committed the crimes upon more than one victim (§ 667.61,
subd. (e)(4)) and engaged in substantial sexual conduct with the
victims (§ 1203.066, subd. (a)(8)). As to the remaining lewd or
lascivious charge, count 15, the jury found not true the section
667.61 allegation that Vasquez committed the crime against more
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than one victim but found true the section 1203.065 substantial
sexual conduct allegation.
The court sentenced Vasquez to 55 years to life in state
prison, comprised of a 25-years-to-life term for the section 288.7,
subdivision (a) sexual intercourse with older sister conviction in
count 9, a consecutive 15-years-to-life term under the One Strike
Law for the section 288, subdivision (a) lewd act with older sister
conviction in count 1, and a consecutive 15-years-to-life term
under the One Strike Law for the section 288, subdivision (a)
lewd act with younger sister conviction in count 13. Punishment
for the remaining convictions was ordered to run concurrently:
15 years to life under the One Strike Law for counts 2, 3, 12, and
14 and 25 years to life for counts 4 to 8 and 10 to 11. Because the
jury found the One Strike multiple-victim allegation not true, the
court imposed the low term of three years in count 15 to run
concurrently.
Vasquez timely appealed.
DISCUSSION
Vasquez contends on appeal: (1) the judgment against him
must be reversed because his due process rights were violated
when the trial court instructed the jury on CALCRIM No. 1191B;
(2) count 11 should be reversed and dismissed because he was not
provided notice at the preliminary hearing that the incident at
the casino involved oral copulation rather than sexual
intercourse; (3) if the conviction on count 11 is not reversed, the
25-years-to-life sentence imposed on that count is unauthorized;
(4) the indeterminate terms imposed under the One Strike Law
for more than two convictions, one for each victim, constitute
unauthorized sentences; and (5) multiple One Strike punishment
violates the prohibitions against double jeopardy and cruel and
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unusual punishment. Aside from the unauthorized sentence for
count 11, Vasquez’s arguments lack merit
1. CALCRIM No. 1191B
We do not accept Vasquez’s first contention that the court’s
CALCRIM No. 1191B instruction improperly allowed the jury to
rely on concurrently charged offenses to find he committed the
other charged offenses in this case. Vasquez concedes the
Supreme Court has rejected this argument in People v. Villatoro
(2012) 54 Cal.4th 1152. We are bound by the high court’s ruling.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
2. Count 11 -- Oral Copulation
Vasquez next contends his conviction on count 11 (oral
copulation with a child 10 years of age or younger) should be
reversed because he did not receive fair notice of the charge prior
to trial. (The sentence on count 11 was imposed concurrently.)
We conclude Vasquez has waived this argument and his trial
counsel did not render ineffective assistance of counsel by failing
to object when the prosecutor sought to amend the charge.
Although we affirm the conviction, we conclude the trial court
imposed an unauthorized sentence and we accordingly modify the
judgment on count 11.
a. Proceedings Below
Count 11 initially alleged that between December 3, 2012
and December 2, 2013, Vasquez committed the crime of sexual
intercourse with older sister in violation of section 288.7,
subdivision (a). Count 11 was based on older sister’s preliminary
hearing testimony and her statement to the counselor at Stuart
House that Vasquez forced her to have intercourse with him in
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the parking lot of the casino when she was 10 years old. At trial,
older sister unexpectedly revealed Vasquez forced her to orally
copulate him in the casino parking lot. When asked why she had
never previously disclosed the oral copulation, she responded that
she was “embarrassed.” She then testified she could not
remember if he put his penis in her vagina during that incident.
The next day, the prosecutor moved to amend count 11 to
reflect older sister’s trial testimony that oral copulation occurred.
The trial court stated it was “worried about notice” and was
“inclined to deny the request.” Defense counsel initially agreed
“it was a surprise” and he had no notice about the oral
copulation. The parties and the court then discussed that an oral
copulation charge under subdivision (b) of section 288.7 carried a
lesser sentence than a sexual intercourse charge under
subdivision (a). Defense counsel also observed he had a
“credibility argument either way,” meaning he could urge the
jury to disregard older sister’s conflicting testimony even if count
11 was amended. After “actually” and “fully” considering the
issue, defense counsel stated he would “join with” the prosecutor’s
request.
b. Vasquez Has Waived the Issue
Relying on case authority and section 1009, Vasquez now
asserts he cannot be prosecuted for an offense not shown by the
evidence at the preliminary hearing. Vasquez has waived this
argument. Not only did he fail to object when the prosecutor
sought to amend count 11 (or when older sister testified), he
“join[ed]” in the prosecutor’s request.
Section 1009 permits amendment of an accusatory pleading
with leave of court “at any stage of the proceedings” so long as the
amendment does not “ ‘charge an offense not shown by the
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evidence taken at the preliminary examination.’ ” (People v.
Goolsby (2015) 62 Cal.4th 360, 367.) Where, as here, a defendant
is charged by way of an information, “[t]he case law is consistent
in reiterating that a superior court lacks authority to try [the]
defendant for a felony . . . offense not previously subjected to a
preliminary hearing. Violation of this limitation on the superior
court’s power, however, would constitute action in excess of
jurisdiction—waivable error—and not nonwaivable subject
matter jurisdiction. [Citations.]” (People v. Burnett (1999)
71 Cal.App.4th 151, 179; accord People v. Gil (1992)
3 Cal.App.4th 653, 659; People v. Newlun (1991) 227 Cal.App.3d
1590, 1603–1604 [by failing to object or request a continuance to
address new evidence, defendant forfeited argument that he had
been denied due process because he was convicted of lewd acts
based on sodomy when no evidence of sodomy was presented at
preliminary hearing].)
Anticipating our holding that he has waived the issue,
Vasquez argues his trial counsel provided ineffective assistance
when he agreed to the amendment. To establish ineffective
assistance of counsel, a “defendant must show that counsel’s
representation fell below an objective standard of
reasonableness” and that “counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” (Strickland v.
Washington (1984) 466 U.S. 668, 688, 686.) “In order to prevail
on a such a claim on direct appeal, the record must affirmatively
disclose the lack of a rational tactical purpose for the challenged
act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)
“[C]ourts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight.” (People v. Brodit (1998)
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61 Cal.App.4th 1312, 1335.) Vasquez acknowledges that
“ ‘[t]actical errors are generally not deemed reversible, and
counsel’s decisionmaking must be evaluated in the context of the
available facts.’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
The record shows Vasquez’s trial counsel had a tactical
reason to agree to the amendment: Vasquez’s potential
maximum sentence was reduced. The oral copulation charge
under section 288.7, subdivision (b) carried a sentence of 15 years
to life while the sexual intercourse charge under subdivision (a)
carried a sentence of 25 years to life. Without the amendment,
Vasquez faced a genuine risk of a harsher sentence resulting
from a conviction for sexual intercourse with a minor. The
prosecution did not offer to dismiss the subdivision (a) count
outright, presumably because the jury would have been entitled
to believe older sister’s prior testimony and statement,
particularly when she did not recant them at trial. At trial, she
testified only that she could not remember whether he penetrated
her, not that it did not occur.
In addition to the lowered sentence exposure, defense
counsel retained a primary defense — he could still urge the jury
to disregard older sister’s entire testimony regarding the incident
at the casino because it was inconsistent. On this record,
Vasquez has failed to show the lack of a rational tactical purpose
for trial counsel’s agreement.
c. The Sentence Was Unauthorized
Although we affirm the conviction, the sentence imposed
for count 11 is unauthorized. The trial court erroneously imposed
a concurrent 25-years-to-life sentence when the punishment for
oral copulation with a child under subdivision (b) of section 288.7
is 15 years to life. The abstract of judgment also inaccurately
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reflects a conviction in count 11 of “sexual intercourse sodomy
w/child 10 yrs or younger” under section 288.7, subdivision (a).
We accordingly order the abstract of judgment corrected. (See
People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [unauthorized
sentence may be corrected on appeal].)
3. One Strike Law
Vasquez’s final arguments relate to his punishment under
the One Strike Law.
Multiple indeterminate terms. He argues only two of
the seven indeterminate terms (one indeterminate term for each
victim) imposed under the One Strike Law are authorized
sentences. The remaining five concurrent terms are
unauthorized under section 654.3 Vasquez again acknowledges
the law on this issue is against him but asserts he must raise it
to preserve the issue.
For decades, California courts have consistently held that
multiple life terms may be imposed under section 667.61 based
on the multiple-victims circumstance. (People v. Morales (2018)
29 Cal.App.5th 471, 483 (Morales); accord People v. Zaldana
(2019) 43 Cal.App.5th 527, 531-532, review granted March 18,
2020, S259731; People v. Andrade (2015) 238 Cal.App.4th 1274,
1305-1306; People v. Valdez (2011) 193 Cal.App.4th 1515, 1518-
1522; see also People v. DeSimone (1998) 62 Cal.App.4th 693,
697-698 (DeSimone).) Although Vasquez correctly states the
3 Section 654 provides, in relevant part: “An act or omission
that is punishable in different ways by different provisions of law
may be punished under either of such provisions, but in no case
shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one
bars a prosecution for the same act or omission under any other.”
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California Supreme Court has never ruled on this issue, the high
court observed 20 years ago that “persons convicted of sex crimes
against multiple victims within the meaning of section 667.61,
[former] subdivision (e)(5) ‘are among the most dangerous’ from a
legislative standpoint. (DeSimone at p. 698.) The One Strike
scheme therefore contemplates a separate life term for each
victim attacked on each separate occasion.” (People v. Wutzke
(2002) 28 Cal.4th 923, 931 [emphasis added].)
The Supreme Court has granted review to address
sentencing under the One Strike law in People v. Zaldana, review
granted March 18, 2020, S259731 and In re Vaquera, review
granted November 26, 2019, S258376. Pending further guidance
from the court, we agree with the Courts of Appeal and the
observation in Wutzke.
Vasquez relies on People v. Mancebo (2002) 27 Cal.4th 735
to challenge multiple One Strike punishment on the ground that
subdivision (f) of section 667.61 prohibits more than one use of a
“triggering” element—in this case, the multiple victim
circumstance.
Subdivision (f) of section 667.61 provides, in pertinent part,
that if only the “minimum number” of circumstances have been
pled and proved under section 667.61, that circumstance or those
circumstances shall be used as the basis for imposing the
enhanced 15-years-to-life or 25-years-to-life term, whichever is
greater, “rather than being used to impose the punishment
authorized under any other law, unless another law provides for
a greater penalty or the punishment under another law can be
imposed in addition to the punishment provided by this section.
However, if any additional circumstance or circumstances . . .
have been pled and proved, the minimum number of
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circumstances shall be used as the basis for imposing the [One
Strike] term . . . and any other additional circumstance or
circumstances shall be used to impose any punishment or
enhancement authorized under any other law.”
Mancebo applied subdivision (f) to prohibit a firearm-use
circumstance to be used to meet the “minimum number” of
qualifying circumstances for purposes of One Strike sentencing
and to impose a firearm sentencing enhancement under section
12022.5, subdivision (a). (Mancebo, supra, 27 Cal.4th at p. 740.)
That did not happen in this case; the multiple-victim
circumstance was only applied once to each count. `
Double jeopardy. We also reject Vasquez’s contention
that his sentence violates double jeopardy principles. Courts that
have considered this question have rejected it. In DeSimone, the
court determined section 667.61 did not implicate state or federal
double jeopardy concerns because the Legislature has authorized
the multiple punishment imposed. (DeSimone, supra,
62 Cal.App.4th at p. 700; see also Andrade, supra,
238 Cal.App.4th 1274.) We agree with the analysis in DeSimone
and Andrade.
Cruel and/or unusual punishment. Lastly, Vasquez
argues that his seven One Strike terms constituted cruel and/or
unusual punishment. We agree with the trial court that it does
not.
At sentencing, the trial court considered “whether or not
given the defendant’s age and the other appropriate sentencing
considerations by this sentence that the court is imposing is cruel
and unusual punishment.” It concluded the sentence was not
cruel and unusual given that there were two young and
vulnerable victims who were abused over a period of years by
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someone in a position of trust. The court further noted Vasquez
faced a sentence of over 290 years plus multiple life sentences but
the court “stopped well short of that and did so intentionally.”
The Legislature, by enacting the One Strike Law, clearly
intended to punish individuals more severely for these types of
incidents.
“A punishment violates the Eighth Amendment if it
involves the ‘unnecessary and wanton infliction of pain’ or if it is
‘grossly out of proportion to the severity of the crime.’ (Gregg v.
Georgia (1976) 428 U.S. 153, 173.) A punishment may violate
article I, section 17 of the California Constitution if ‘it is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human
dignity.’ (In re Lynch (1972) 8 Cal.3d 410, 424.)” (People v.
Retanan (2007) 154 Cal.App.4th 1219, 1230–1231.)
For the reasons articulated by the trial court, we conclude
Vasquez’s sentence was not grossly disproportionate to his
offenses. Nor does it shock the conscience or offend fundamental
notions of human dignity. (See Retanan, supra, 154 Cal.App.4th
at p. 1231 [“Defendant was convicted of numerous sex crimes
against four young girls, including the rape of a 10–year–old. He
attempted to silence two of his victims by threats against the life
of the person they loved the most. His many offenses were made
possible by exploiting the trust of his victims’ parents. [¶]
Defendant’s sentence is not disproportionate to the offender or
the offenses. His claim of cruel and unusual punishment is
without merit.”].)
DISPOSITION
The trial court is directed to prepare a corrected abstract of
judgment reflecting that Vasquez was convicted in count 11 of
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oral copulation with a child under subdivision (b) of section 288.7.
The sentence for count 11 is modified to a concurrent term of 15
years to life. The trial court is directed to forward a certified copy
of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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