People v. Acevedo CA6

Filed 4/22/14 P. v. Acevedo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038533
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC952510)

v.

BALBINO DUENAS ACEVEDO,

Defendant and Appellant.

A jury convicted defendant Balbino Duenas Acevedo of two counts of aggravated
sexual assault of a child (Pen. Code, § 269)1 and five counts of lewd conduct on a child
under 14 (§ 288, subd. (a)). Allegations that he committed lewd acts against more than
one victim within the meaning of section 667.61, subdivisions (b) and (e) were also found
true. Defendant was sentenced to 45 years to life in prison.
On appeal, defendant contends that (1) an instructional error undermined his alibi
defense; (2) there was insufficient evidence to support the first of his two section 269
convictions; and (3) the sentence imposed pursuant to section 667.61 violated
constitutional prohibitions against ex post facto laws. We affirm.

1
Subsequent statutory references are to the Penal Code unless otherwise noted.
 I. Background
Silvia Doe’s family lived in a rented garage on Lyons Court in San Jose when she
was between five and eight years old. The owners of the property lived in the adjacent
house. They rented a room in the house to defendant.
The entrance to the garage was in a grassy side yard. There was a door to the
owner’s backyard at the end of it with “like a storage room” in front of the door.
Defendant came through that door and with candy or cookies lured Silvia2 into the space
“behind and in between the door” and the back of the storage room. “[H]e would pull
down my underwear or my pants” and “would just start rubbing his fingers” inside the
lips of her vagina. This happened “probably two or three times a week” and more than
10 times.
The final incident occurred inside the house. Defendant told Silvia that he had
something in his room for her. He lifted her onto a chair, pulled down her underwear,
and “started by touching me . . . . And then . . . he pulled out . . . his penis” and started
“rubbing it against my vagina.” Silvia heard her mother call her name. “[T]hat’s when
he got all nervous and pulled up my underwear and he told me to go outside and not say
anything . . . .” Defendant “rushed” Silvia out of his room.
Silvia’s family moved out of the garage when they bought a house in 1996. She
did not see defendant again after that. She did not tell anyone about the abuse until 2005.
She was 17 when she disclosed it in a personal statement that she was asked to write
during her senior year in high school. She gave the statement to the principal to review.
He found it “alarming” and spoke to her about it. Silvia told her mother about the abuse
that day. The principal reported the abuse to Child Protective Services. Silvia was
interviewed by a police officer and later spoke with a sexual assault detective.

2
We refer to the victims and to some of the witnesses by their first names. We do
so not out of disrespect but to avoid confusion and to protect the victims’ privacy.

2
 In 2009, a second victim revealed that she was molested as a child by defendant.
Elizabeth Doe was born in August 1991. When she was seven and eight, she lived with
her parents, her older brother Lewis, and her younger sister Natalie in San Jose. Her
family’s apartment had three bedrooms. Elizabeth’s family occupied one bedroom. Her
mother’s friend Teresa occupied a second bedroom with her then-husband and their two
children. Defendant occupied the third bedroom. Elizabeth’s uncles Francisco and F.
each lived in the apartment at times during that period. Defendant and F. shared a room
at one point.
Elizabeth and her brother Lewis were asleep on a sofa bed in the living room late
one night when she was “around 7 or 8.” She felt “a presence” and someone touching
her. Defendant “was putting his -- well, he put his hand in my vagina . . . .” He was
“rubbing it.” Elizabeth felt defendant’s fingers inside the lips of her vagina. She felt
pain. Defendant put “his whole hand” over her face and made the hushing sound
“ ‘shhh.’ ” Elizabeth was “scared” and “[t]errified.” “I was little. I didn’t know what he
was doing to me.” She did not say anything or struggle or try to get away. “I just closed
back my eyes and let him do what he was doing.” She opened her eyes “every second to
see if he was gone and he was still there.”
Another incident occurred “less than a month” later when defendant lured
Elizabeth into his bedroom by “telling me he needed me for something and that he had
candy.” Defendant told her to lie down on the bed. He was “serious” and said “in [an]
aggressive way” that he would hurt her brother if she refused. Elizabeth was crying.
Defendant covered her mouth with his hand. She did as she was told and “let him touch
me and rub me like the first time.” She felt pain in her vagina. She was scared “[a] lot.”
Elizabeth did not tell her parents or her brother about the abuse because she was
scared by defendant’s threats. Defendant regularly threatened her. “He will tell me not
to say anything. That if he found out that I said something that he was going to hurt my
brother, hurt my parents.” He threatened to kill her family. “[H]e said he was gonna go
3
do it with my brother. But I never -- he was going to go hurt my brother but I never knew
exactly what he was going to [do] with my brother. And it was just my brother and me
and my baby sister, so . . . that’s why I told you I just [let him abuse me].”
Elizabeth’s family “has a lot of . . . bad past.” She was also molested by F., who
touched her “over the clothes” when she was “maybe 7, 8, 9 or 10.” She eventually made
a formal complaint against F. Elizabeth’s stepbrother Mauricio was also molested as a
child. When she was about 15, she had “a deep talk with [Lewis] about Mauricio being
molested.” During that talk, Elizabeth told Lewis that defendant had molested her.
Lewis encouraged her to tell their father. When she was about 16 and living with her
father, she told him that defendant molested her as a child. She was having “really bad
nightmares” and “couldn’t take it no more, like just seeing him in my dreams and still
having that fear.” Her father let her decide whether she wanted “to go to the police and
tell them about it” or “just to go to therapy but not having to deal with the court issues
and like with the police.” She chose not to go to the police at that time.
In 2009, Elizabeth “finally” told her mother that defendant molested her as a child.
She was 17. She had been caught drinking alcohol the day before and her mother was
scolding her. Elizabeth recalled Lewis “yelling” at her, “ ‘Just tell her. She has to
know.’ ” “[M]y brother . . . was telling me to tell her why was my reason to drink, like
why was it that I was always . . . like hurt from inside and outside. I just wanted to drink,
and I just wanted to kill myself . . . . And I started drinking. And that’s the reason why I
started drinking.”
Elizabeth’s mother reported the abuse to the police. A warrant issued for
defendant’s arrest. He was apprehended in Laredo, Texas in 2011.
Silvia was 23 when she testified at defendant’s trial. She identified him as the
man who molested her as a child. Silvia’s mother Yolanda testified that she did not know
about the abuse until Silvia told her about it in 2005. She described the day when she
noticed that Silvia was no longer playing nearby and went outside to look for her. When
4
Yolanda called her name, Silvia came out of defendant’s bedroom with a lollipop. “I told
her to promise me that she would never take any more candy from that man.”
Elizabeth was 20 when she testified at defendant’s trial. She identified him as the
man who molested her as a child. She explained that she did not report the abuse sooner
because she “did not want to deal with all this” or hurt her mother, who blamed herself.
“And another reason was that I was still afraid.”
Elizabeth rejected any suggestion that she ever confused what defendant did to her
with what F. did to her. Defendant was the one who hurt her the most. “[H]e was the
one that scared me the most, like the way he looked at me, the way he will talk to me. I
was more afraid of him because being little, I didn’t know what to do. Like I knew it was
bad, but I didn’t know how bad it was.”
Elizabeth’s mother Benedicta also testified for the prosecution. Carl Lewis
testified as an expert in child sexual abuse accommodation syndrome (CSAAS).
Defendant’s sister Maria Emilia Diaz Acevedo traveled from Garame de Abajo,
Mexico to testify for the defense. She and her six children lived there with her mother.
Her mother received mail from defendant when he lived in San Jose. Defendant
regularly sent the family money from the United States. Diaz Acevedo testified that
defendant returned to Mexico to live with her family in “the last days of May or the first
days of June” 1998. She remembered the year because he participated in the search effort
after her oldest son went missing on November 11, 1998. Her son’s body was found on
February 2, 1999. Defendant remained in Garame de Abajo until 2000, when he moved
to the city of Durango in Mexico. Diaz Acevedo did not know whether defendant ever
went back to the United States to visit after he moved in with her family in 1998.
Diaz Acevedo conceded on cross-examination that she did not know “the exact
month” when defendant moved to Mexico. She was “certain” that it was before her son
went missing in November of 1998.

5
 The defense called Elizabeth’s brother Lewis to testify. Lewis said he did not
have “any idea what it was about” when a police officer came to interview him about the
abuse Elizabeth suffered. Lewis knew that defendant and F. both molested Elizabeth.
The officer did not volunteer defendant’s name or any name during the interview. “He
just asked me about [Elizabeth being] sexually assaulted so [the] first person that came to
mind was my uncle.” “It was just after we started talking” that the officer asked Lewis
“if I was to take a look at some pictures, would I be able to recognize the guy.” When
Lewis saw a picture of defendant in the photo lineup, “[t]hen I knew that it was
[defendant] who he was speaking about.” Lewis authenticated the audio recording of his
police interview.
San Jose Police Officers Carlos Melo, Saul Duran, and Bach Tran described their
investigation. Annette Ermshaw testified for the defense as an expert in clinical
psychology, forensic psychology, CSAAS, and memory and suggestibility.
After deliberating for less than two hours, the jury returned guilty verdicts on the
aggravated sexual assault and lewd conduct counts and found the enhancement
allegations true. The trial court found defendant ineligible for probation under section
1203.066, subdivision (a)(7), denied probation, and sentenced him to an aggregate term
of 45 years to life. Defendant filed a timely notice of appeal.

II. Discussion
A. Claimed Instructional Error
Defendant contends that the trial court erred when it instructed the jury pursuant to
CALCRIM No. 207 that “[i]t is alleged that the crime [of aggravated sexual assault]
occurred on or about and between August 2nd, 1998 [and] August 3rd, 2000 . . . . The
People are not required to prove that the crime took place exactly on those days but only
that it happened reasonably close to those days.” He argues that the instruction

6
undermined his alibi defense to the aggravated sexual assault charges against him and
denied him due process. We disagree.
Generally, a jury should “limit its consideration of the time of the offense to that
shown by the evidence . . . .” (People v. Wrigley (1968) 69 Cal.2d 149, 157 (Wrigley).)
Where the defendant has a complete alibi for the specific date the alleged offenses were
committed as established by the prosecution’s evidence, it is error to lessen the
prosecution’s burden by instructing the jury that proof on or about the alleged date is
sufficient. (People v. Jones (1973) 9 Cal.3d 546, 557 (Jones), overruled on other grounds
in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, “where the
prosecution evidence points to a particular day or hour to the exclusion of any other time,
an instruction limiting the jury to a consideration of the time of the offense in accordance
with the testimony is proper. Requiring the jury to limit its consideration of the time of
the offense to that shown by the evidence precludes them from speculating that it may
have occurred at a time other than that shown by the evidence . . . .” (Wrigley, at pp. 156-
157.) Accordingly, the bench notes to CALCRIM No. 207 state that the instruction
“should not be given . . . when the evidence demonstrates that the offense was committed
at a specific time and place and the defendant has presented a defense of alibi or lack of
opportunity.” (Bench Notes to CALCRIM No. 207 (2013) p. 37.)
A different rule applies when the evidence does not point to a specific time and the
defendant’s alibi is only partial. (Wrigley, supra, 69 Cal.2d at pp. 156-160.) In those
cases, the jury is properly instructed to determine whether the offense was committed on
or about the time alleged. (Ibid.) In such cases, the “on or about” instruction does not
“deflect the jury’s attention from a crucial temporal element for which the defendant had
an alibi.” (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Here, the prosecution’s evidence did not point to a specific date for either time
defendant molested Elizabeth. She testified that the charged incidents occurred “a few
weeks apart” when she was “around” seven years old. She told the jury that she did not
7
know the specific dates but remembered generally what grade she was in and tried to
calculate her age from that. “I remember I was with my -- with my first grade teacher
and then my second grade teacher when all this was happening. And I know the age I
was around 7 or 8 because that’s the age you’re supposed to be in first and second grade.”
The prosecutor told the jury during closing argument that Elizabeth could not “define
with very much specificity exactly when this happened.” “And so when you see the
charging document, of course, we have alleged 7 and 8 years old because that’s as close
as she can say.” “So if you believe that Elizabeth was touched when she was 7 or even
close in time to the dates that are alleged to her turning 7, that is absolutely sufficient to
support the conviction in this case. . . . Elizabeth is not clear on when this happened, but
we know it was very close to her seventh birthday.” The prosecutor encouraged the jury
“to look back on her testimony.”
Defendant relied on his sister’s testimony to establish his alibi. But her testimony
was vague as to the date he returned to live in Mexico. She testified on direct that he
came to live with her family in “the last days of May or the first days of June” in 1998.
But she conceded on cross-examination that she did not know “the exact month.” She
could only say that he arrived before her son went missing in November of 1998. She
also equivocated when she was asked if defendant ever returned to San Jose for a visit. “I
do not know. I do not know. I don’t think so.” Elizabeth’s mother testified that
defendant did return after he retired and moved to Mexico. Benedicta could not recall at
first when he left or when he returned but on cross-examination, she suddenly recalled
that he returned on July 4, 1998. Elizabeth turned seven in early August 1998. Given
that the evidence showed the molestations happened “a few weeks apart” when Elizabeth
was “around” seven years old, we conclude that defendant’s alibi was only a partial one.
Because the prosecution’s evidence did not point to a specific date when either
molestation occurred and because defendant’s alibi was only partial, the trial court did

8
not err in instructing the jury with CALCRIM No. 207. (Wrigley, supra, 69 Cal.2d at
pp. 156-160.)
Defendant’s reliance on People v. Barney (1983) 143 Cal.App.3d 490 (Barney) is
misplaced. The defendant in Barney was charged with molesting his granddaughter “ ‘on
or about’ February 8, 1981.” (Id. at p. 497.) The prosecution’s evidence fixed the date of
the offense as either Saturday, February 7 or Sunday, February 8 “to the exclusion of any
other time.” (Id. at p. 498.) The defendant challenged an “ ‘on or about’ ” instruction on
appeal. The court held that the instruction was given in error. “There was also testimony
numerous other [uncharged] molestations occurred between the Christmastime offense
and the terminal offense in issue. These circumstances present a substantial possibility
the jury was misled concerning the necessity to agree defendant molested the child during
the weekend of February 7 and 8. [¶] . . . [T]estimony concerning uncharged acts of
molestation was admissible only in aid of proof of the charged offenses. The instruction
that the prosecution need not specifically prove the time of the charged offense, coupled
with the prosecution argument it need prove only a last act, not the time of the last act,
was error.” (Ibid.)
This case is different. Unlike in Barney, the prosecution’s evidence did not point
to a particular day or hour to the exclusion of any other time. Elizabeth testified that the
two acts occurred “a few weeks apart” when she was “around 7” and in the first or
second grade. The prosecutor argued that “Elizabeth is not clear on when this happened,
but we know it was very close to her seventh birthday.” In this case, it was not error to
instruct the jury with CALCRIM No. 207. It follows that there was no violation of
defendant’s due process rights. (People v. Osband (1996) 13 Cal.4th 622, 675 [“Because
there was no state law error, neither was there any predicate for a constitutional
violation.”].)

9
 B. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to support the first of his
two aggravated sexual assault convictions because there was no evidence that he
accomplished the first charged act of sexual penetration with a foreign object by force,
fear, or menace. We disagree.
When a defendant challenges 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.” [Citation.]’ [Citation.] . . . [W]e
‘ “presume[ ] in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” [Citation.]’ [Citations.] ‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51
Cal.4th 620, 632.)
The two section 269 counts charged here were predicated on defendant’s violation
of section 289, subdivision (a)(1). The version of section 289 in effect when he
committed his crimes provided that “[e]very person who causes the penetration, however
slight, of the genital or anal openings of any person . . . for the purpose of sexual arousal,
gratification, or abuse by any foreign object . . . when the act is 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 shall be punished by
imprisonment in the state prison for three, six, or eight years.” (Former § 289,
subd. (a)(1).) Because these terms are listed in the disjunctive, a “conviction may be
10
upheld if there is substantial evidence [that] the act was accomplished against the
victim’s will either by force, violence, duress, menace, or fear of bodily harm.” (People
v. Hale (2012) 204 Cal.App.4th 961, 976.)
“[T]he definition of the word ‘force’ in sexual offense statutes depends on the
offense involved. To convict for committing a forcible lewd act against a child in
violation of section 288, subdivision (b), the prosecution must prove that the defendant
used physical force substantially different from or substantially greater than that
necessary to accomplish the lewd act itself. [Citation.] In contrast, the requisite amount
of force for a rape conviction is the amount sufficient to overcome the victim’s will.
[Citation.] This level of force also applies for convictions of aggravated sexual assault of
a child by rape and by forcible oral copulation . . . . [Citation.]” (In re Asencio (2008)
166 Cal.App.4th 1195, 1200, fn. omitted.) Similarly, the amount of force “required to
establish a violation of section 269, subdivision (a)(5): aggravated sexual assault of a
child through sexual penetration as defined by section 289, subdivision (a) . . . is that
force which is sufficient to overcome the victim’s will.” (Asencio, at p. 1200.) The jury
was instructed with CALCRIM No. 1045 that “[a]n act is accomplished by force if a
person uses enough physical force to overcome the other person’s will.”
We find sufficient evidence of force here. Elizabeth was around seven when the
first incident happened. She was asleep, seemingly safe in her bed. She awoke in the
middle of the night to find defendant molesting her. He was in his 60’s. These
circumstances compel the conclusion that the only way Elizabeth could have escaped the
situation she found herself in was by crying out. But she could not cry out because
defendant “put his whole hand” over her face and told her “ ‘shhh.’ ” “[H]e put his whole
hand in my face.” Elizabeth felt pain in her vagina. Given her and defendant’s relative
sizes and ages and the fact that defendant was hurting her, the jury could reasonably have
concluded that his act of putting his whole hand over her face and ordering her to hush

11
was a sufficient use of force to overcome her will. Thus, sufficient evidence of force
supported the first of defendant’s two section 269 convictions.3

C. Sentencing Issues
1. Ex Post Facto
Defendant contends that the sentence imposed pursuant to section 667.61 for his
section 288, subdivision (a) convictions violated ex post facto principles. He maintains
that the trial court imposed sentence under the current version of the “One Strike Law”
and by doing so increased his punishment beyond what he would have faced under the
law in effect when he committed his crimes in 1995 through 1998. We conclude that
defendant has not established and cannot establish an ex post facto violation.
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const.,
art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The prohibition is based on the principle that
“persons have a right to fair warning of that conduct which will give rise to criminal
penalties . . . .” (See Marks v. United States (1977) 430 U.S. 188, 191.) Thus, laws that
“retroactively alter the definition of crimes or increase the punishment for criminal acts”
are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43; People v. Alford
(2007) 42 Cal.4th 749 (Alford).) California’s ex post facto law is analyzed in the same
manner as the federal prohibition. (Alford, at p. 755.)
The current version of section 667.61 mandates a prison term of 15 years to life
for “any person” convicted of a lewd act in violation of section 288, subdivision (a) if
“[t]he defendant has been convicted in the present case . . . of committing [a qualifying]
offense against more than one victim.” (§ 667.61, subds. (b), (c)(8), (e)(4).) Qualifying
offenses include “[s]exual penetration, in violation of subdivision (a) of Section 289” and

3
Our conclusion makes it unnecessary for us to address defendant’s additional
argument that there was insufficient evidence of fear to support the first of his two
section 269 convictions.

12
“[l]ewd or lascivious act, in violation of subdivision (a) of Section 288.” (§ 667.61,
subds. (c)(5), (8).)
The statute in effect when defendant molested Silvia was different. Before 2006,
the One Strike law’s sentencing mandate applied to persons convicted of a lewd act in
violation of section 288, subdivision (a) “unless the defendant qualifie[d] for probation
under subdivision (c) of Section 1203.066.” (Former § 667.61, subd. (c)(7), italics
added.)
Former section 1203.066, subdivision (a) made a person “convicted of committing
a violation of Section 288 or 288.5 against more than one victim” presumptively
ineligible for probation. (Former § 1203.066, subd. (a)(7); (People v. Wills (2008) 160
Cal.App.4th 728, 736 (Wills).) The defendant could overcome that presumption if the
trial court made “all” of the findings specified in former section 1203.066,
subdivision (c). One required finding was that the defendant was “the victim’s natural
parent, adoptive parent, stepparent, relative, or . . . a member of the victim’s household
who . . . lived in the victim’s household” when the molestations were committed.
(Former § 1023.066, subd. (c)(1); People v. Jeffers (1987) 43 Cal.3d 984, 998-1000
(Jeffers).) Another required finding was that “[a] grant of probation to the defendant is in
the best interest of the child.” (Former 1203.066, subd. (c)(2).) Even if the court made
findings favoring the defense, it “ ‘retain[ed] the discretion’ to find the defendant
unsuitable for probation and to order imprisonment.” (People v. Wutzke (2002) 28
Cal.4th 923, 932, fn. 7 (Wutzke); former § 1203.066, subd. (c)(5).) The trial court was
required to “state its reasons on the record for whatever sentence it imposes on the
defendant.” (Former § 1203.066, subd. (c)(5).)
Here, the information alleged with respect to the section 288, subdivision (a)
counts that defendant was “convicted in the present case . . . of committing an offense
specified in subdivision (c) against more than one victim . . . .” The jury found those
allegations true. The probation report stated that defendant was “ineligible for a grant of
13
probation pursuant to Section 1203.066(a)(7) of the Penal Code.” At sentencing, the trial
court stated, “In this particular matter, it was referred to the probation department. The
court will adopt the recommendation of the probation department. In this particular case
probation in this matter is ordered denied. It is denied because the defendant is ineligible
pursuant to [section 1203.066, subd. (a)(7)] of the Penal Code.”
Defendant argues that the trial court “most likely” applied the current version of
the statute and in doing so “increas[ed] his punishment beyond what would have been
imposed under the law as it stood from 1995 through 1998.” He argues that his sentence
violates the constitutional prohibition against ex post facto laws. We cannot agree.
Whether the trial court sentenced defendant under the current or the former
version of section 667.61 is not apparent from the record before us. What is apparent is
that the trial court could not have granted probation on this record under the former
version of section 1203.066. The jury’s finding that defendant was “convicted of
committing a violation of Section 288 or 288.5 against more than one victim” left him
presumptively ineligible for probation. (Former § 1203.066, subd. (a)(7).) He could
overcome that presumptive ineligibility only by convincing the trial court that he met
“all” of the criteria in section 1203.066, subdivision (c). (People v. Groomes (1993) 14
Cal.App.4th 84, 89 (Groomes) [“a defendant has the burden to present evidence showing
that he is entitled to consideration for probation under subdivision (c) of section
1203.066.”].) He did not and cannot do so.
The record here established only one of the required findings. Defendant was
living with Elizabeth’s family at the time of the molestations. Thus, he was “a member
of the victim’s household who has lived in the victim’s household” within the meaning of
former section 1203.066, subd. (c)(1). (Jeffers, supra, 43 Cal.3d at pp. 998-1000.) There
is no evidence in the record concerning the other required findings. Even if there were,
the trial court could not have made “all” of the required findings because it could not

14
have found that “[a] grant of probation to the defendant is in the best interest of the
child.” (Former § 1203.066, subd. (c)(2).)
In Wills, the court held that the plain language of subdivision (c) evinced the
Legislature’s intent that a sentencing court “shall have no authority, and thus no legal
discretion” to grant probation to a presumptively ineligible defendant “in a case in which
the molestation victim is no longer a child at the time of sentencing.” (Wills, supra, 160
Cal.App.4th at p. 740.) The court explained that “[t]he use of the present tense verb ‘is’
in [subdivision (c)] indicates a plain and clear legislative intent that the sentencing court
must evaluate the circumstances existing at the time of sentencing in determining whether
a grant of probation would be in the ‘best interest’ of the ‘child’ victim. Had the
Legislature intended that such a determination be based on circumstances that existed at
the time the defendant molested the victim, it easily could have so provided.” (Wills, at
p. 737.) “Logically, where, as here, the victim is no longer a child at the time of
sentencing, the sentencing court is unable to make a finding . . . that ‘[a] grant of
probation . . . is in the best interest of the child’ for the simple reason that there is no
child. In such a case, the sentencing court is unable to make ‘all’ of the findings
specified in former subdivision (c) of section 1203.066, as required by that subdivision,
and thus is not authorized to grant probation” to a defendant found presumptively
ineligible for probation under subdivision (a) of that section. (Wills, at pp. 737-738.)
We agree with the Wills court’s analysis. Silvia was 23 when she testified at
defendant’s trial in this case. Elizabeth was 20. Because neither was a child when
defendant was sentenced, the trial court had no authority and therefore no legal discretion
to grant him probation under the law in effect when he committed his crimes against
Silvia. (Wills, supra, 160 Cal.App.4th at p. 737.)
It follows that defendant’s sentence did not violate ex post facto principles. When
defendant committed his crimes, he was subject to the One Strike Law “unless [he]
qualifie[d] for probation under subdivision (c) of Section 1203.066.” (Former § 667.61,
15
subd. (c)(7), italics added.) The record affirmatively establishes that he could not meet
the requirements for probation. The One Strike Law in effect at the time of his crimes
mandated a term of 15 years to life for each of his crimes against Silvia. (Former
§ 667.61, subds. (b), (e)(5).) Thus, his sentence did not subject him to greater
punishment than the law at the time of his crimes allowed. Our conclusion is the same
even if we assume that the trial court improperly sentenced defendant under the current
rather than the applicable version of the One Strike Law. As applicable here, both
versions mandated the same sentence. Thus, to the extent sentencing error occurred, it
was harmless under any standard of review.
Defendant argues that because the jury never found him ineligible for probation
and the trial court never found him not qualified for probation, he “necessarily” fell
within the category of those who qualified for probation. We disagree.
Defendant’s argument is based on the faulty premise that former section 1203.066,
subdivision (d) required the People to plead and the jury to find him ineligible for
probation. He cites no authority to support that assumption. There is none.
Former section 1203.066, subdivision (d) provided that “[t]he existence of any fact
which would make a person ineligible for probation under subdivision (a) shall be alleged
in the accusatory pleading, and either admitted by the defendant in open court, or found
to be true by the jury . . . .” (Former § 1203.066, subd. (d).) The current version of
subdivision (d) is the same. We must determine what subdivision (d) means.
“The interpretation of a statute presents a question of law subject to de novo
appellate review.” (Wills, supra, 160 Cal.App.4th at p. 736.) “ ‘Under settled canons of
statutory construction, . . . we ascertain the Legislature’s intent . . . to effectuate the law’s
purpose. [Citation.]’ ” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1126.)
“ ‘Because the language of a statute is generally the most reliable indicator of the
Legislature’s intent, we look first to the words of the statute, giving them their ordinary
meaning and construing them in context. If the language is unambiguous, we presume
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the Legislature meant what it said, and the plain meaning of the statute controls.
[Citations.]’ ” (People v. Anderson (2010) 50 Cal.4th 19, 29.)
We read subdivision (d) to mean precisely what it says. It requires the People to
plead and the jury to find “[t]he existence of any fact” which would make a person
ineligible for probation. (Former § 1203.066, subd. (d).) It does not say that the People
must plead and the jury must find the ultimate fact of probation ineligibility. The phrase
“which would make a person ineligible for probation under subdivision (a)” is a
subordinate clause. It describes the category of facts that must be alleged and found true.
The facts that must be alleged and found true are facts that establish the existence of a
qualifying circumstance (such as the multiple victims circumstance) that would make the
defendant presumptively ineligible for probation under section 1203.066, subdivision (a).
(See People v. Superior Court (Frietag) (1988) 204 Cal.App.3d 247, 248-251 [fact that
rendered defendant convicted of nonforcible lewd acts ineligible for probation was
sufficiently alleged where the information charged that he had caused great bodily injury
to his child victim].) The requisite fact here was the fact that defendant was convicted of
committing a violation of section 288 “against more than one victim.” (Former
§ 1203.066, subd. (a)(7).) That fact was alleged in the information. The jury found it
true. There was no failure to comply with section 1203.066, subdivision (d).
Defendant argues that the trial court’s failure to expressly find him not qualified
for probation under section 1203.066, subdivision (c) “necessarily” put him within the
category of those who were qualified for probation and thus not subject to the One Strike
Law’s sentencing mandates. We cannot agree.
In the absence of an affirmative showing of sentencing error, “ ‘the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’ ” (People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; Evid. Code, § 664.) Here,
the record affirmatively shows that defendant did not meet “all” of the former section
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1203.066, subdivision (c) requirements. He was therefore ineligible for probation under
former section 1203.066, subdivision (a)(7). We find nothing in the record to establish
that the trial court improperly applied the current rather than the former versions of
sections 667.61 and 1203.066 at sentencing. The court explained that “probation is
denied . . . because the defendant is ineligible pursuant to [section 1203.066, subdivision
(a)(7)] of the Penal Code.” This was a correct statement of the law under either the
former or the current versions of sections 667.61 and 1203.066. Because the record gives
us no basis to conclude that the court applied the wrong versions of the statutes, we
presume that its statement that defendant was “ineligible pursuant to [section 1203.066,
subdivision (a)(7)]” included an implicit determination that defendant did not satisfy the
section 1203.066, subdivision (c) criteria. Defendant was properly found subject to the
One Strike Law.
2. Apprendi
Defendant suggests that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
required the jury to determine whether he was qualified for probation. We disagree.
In Apprendi, the United States Supreme Court held that a fact other than a prior
conviction that increases the maximum penalty for an offense must be found true by a
jury beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 475.) Apprendi does
not apply to the factual findings specified in section 1203.066, subdivision (c). Those
findings determine whether a defendant is eligible for probation. A denial of probation
does not increase the maximum penalty for a violation of section 288, subdivision (a).
Nor does a grant of probation decrease the maximum penalty for the offense. A grant of
probation simply suspends imposition or execution of the sentence. (§ 1203, subd. (a)
[probation is “the suspension of the imposition or execution of a sentence and the order
of conditional and revocable release in the community under the supervision of a
probation officer.”].) The denial of probation in this case is not what increased the
maximum penalty for defendant’s violations of section 288, subdivision (a). What
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increased the maximum penalty was the fact that he committed lewd acts against multiple
victims. (§ 1203.066, subd. (a)(7).) That fact was found true beyond a reasonable doubt
by the jury. There was no Apprendi violation.
3. Due Process
Defendant contends that the People’s failure to plead that he was not eligible for
probation under former section 1203.066, subdivision (a)(7) or that the court would not
find him qualified under former section 1203.066, subdivision (c)(1)-(5) failed to apprise
him “that the People were seeking jury findings which would expose him to additional
punishment . . . under the One Strike Law.” The Attorney General counters that
defendant forfeited this issue. We agree with the Attorney General. Defendant did not
mention this issue below. We deem it forfeited. (People v. Houston (2012) 54 Cal.4th
1186, 1226-1228.)

III. Disposition
The judgment is affirmed.

___________________________
Mihara, J.

WE CONCUR:

_____________________________
Elia, Acting P. J.

_____________________________
Grover, J.

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