There was sufficient evidence of defendant’s lewd intent based on other incidents involving the same minor and on the defendant’s coercive threats immediately after the touching. Morales was convicted by a jury of four counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)), one count of committing a forcible lewd act on a child under 14 (Pen. Code, § 288, subd. (b)), and various other sex offenses. The jury also found true an allegation that Morales had committed sexual offenses against multiple victims (Pen. Code, § 667.61, subd. (e)(4)). The court sentenced Morales to a term of 75 years to life consecutive to a 6-year determinate term. He appealed, challenging the sufficiency of the evidence of lewd intent as to two acts supporting convictions for section 288, subdivision (a). Held: Affirmed in part, remanded for resentencing. To determine whether a particular touching is prohibited as a lewd or lascivious act, a factfinder may infer the defendant’s intent from all the relevant circumstances, including his extrajudicial statements, other acts of lewd conduct admitted or charged in the case, the relationship of the parties, and any coercion, bribery, or deceit used to obtain the victim’s cooperation. (People v. Martinez (1995) 11 Cal.4th 434, 445.) Here, the court found that while defendant’s conduct in touching the minor as he pushed her on the swing did not by itself disclose a lewd intent, the fact that on another occasion he touched her thigh and reached toward her private parts, stopping only when she started crying, was indicative of his sexual intent on all three occasions. Defendant’s coercive threat to harm her family if she told anyone confirmed his own understanding of the illicit nature of the touching. The court affirmed the judgment of conviction for two counts of section 288, subdivision (a).
There was sufficient evidence of force used to accomplish the prohibited act beyond what was inherent in the act itself. Morales argued that there was insufficient evidence of force to support the forcible lewd act count under section 288, subdivision (b) against Jane Doe 1. The Court of Appeal disagreed. A defendant uses force if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion, or constraint in addition to the physical contact which is inherent in the prohibited act. Acts of grabbing, holding, and restraining that occur in conjunction with the lewd acts themselves are sufficient to support a finding that the lewd act was committed by means of force. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1005.) The court found that the minor’s testimony amply established that defendant used force to facilitate the lewd act rather than merely incidentally touching her in the course of the lewd act. The defendant’s picking up, holding, and restraining of the minor to facilitate his lewd act was substantial evidence of the requisite force. However, it was undisputed at trial that the two section 288 counts against Jane Doe 1 were based on a single act. The section 288, subdivision (a) conviction cannot be upheld as it is a lesser included offense of the section 288, subdivision (b) count. The superior court was directed to strike the section 288, subdivision (a) count involving Jane Doe 1.
The trial court properly imposed a life term for the section 288, subdivision (a) count because the language in the accusatory pleading was sufficient to show that defendant was ineligible for probation. Morales argued that the trial court erred in imposing a life term for one of the section 288, subdivision (a) counts because the offense occurred in 2004, before section 667.61 (known as the One Strike law) was amended to apply to all section 288, subdivision (a) offenses. The 1998 version of section 667.61, which was in effect in 2004, provided that the law applied to a violation of section 288, subdivision (a) unless the defendant qualifies for probation under section 12033.066, subdivision (c). The 1997 version of section 12033.066 required that the existence of any fact that would make a person ineligible for probation shall be alleged in the accusatory pleading and either admitted by the defendant or found to be true by the jury. The accusatory pleading in this case did not allege that Morales was ineligible for probation but it did allege the “fact that would make a person ineligible for probation.” That is, the information alleged that defendant “has been convicted in the present case of committing an offense against more than one victim.” This allegation was found true by the jury. Therefore, Morales fell within section 667.61 as it read in 2004 and could properly be sentenced to a life term for the section 288, subdivision (a) conviction.
The trial court correctly imposed multiple life terms under Penal Code section 667.61, but the current version of the statute requires a life term of 25 years to life for some of the lewd acts, not 15 years to life. The court imposed one life term for the forcible lewd act count against Jane Doe 1, two life terms for the two lewd act counts against Jane Doe 2, and one life term for the lewd act count against Jane Doe 3. The life terms were 15 years to life. Morales argued that the trial court erred in imposing multiple life terms under section 667.61 because the statute authorizes only one life term for qualifying offenses against more than one victim on multiple separate occasions. The Court of Appeal disagreed, concluding that every court that has ever considered this issue has rejected the contention that section 667.61 does not permit multiple life terms to be imposed based on the multiple-victims circumstance. The 1998 version of section 667.61, in place at the time of the offense against Jane Doe 3, mandated a term of 15 years to life for Morales’ lewd act on Jane Doe 3. It provided that a life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the [life term] shall be imposed on the defendant once for each separate victim.” The current version of section 667.61, which was in effect when defendant committed the counts against Jane Doe 1 and Jane Doe 2, does not contain this language and instead provides “[a]ny person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.” (Pen. Code, § 667.61, subd. (j)(2).) On appeal, Morales conceded the trial court’s imposition of 15-year-to-life terms for the three lewd act counts against Jane Doe 1 and Jane Doe 2, rather than 25-year-to-life terms, was an unauthorized sentence. The case was remanded for resentencing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H043837.PDF