Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF2716 Carla Singer, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant David Gomez Galindo of five counts of committing a lewd or lascivious act on a minor under 14 years of age. (Pen. Code, § 288, subd. (a); all statutory references are to the Penal Code unless noted.) The jury also found true the allegations he engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)), and inflicted great bodily injury (§ 12022.7).
Galindo contends the prosecutor failed to establish the corpus delicti concerning three of the counts. He also argues the trial court erred by imposing court facility fees under Government Code section 70373. Finally, he contends the sentencing minute order and abstract of judgment must be corrected concerning court security fees (§ 1465.8) and contact with the victim. For the reasons expressed below, we modify the judgment with directions.
I
Factual and Procedural Background
M.P. was born in September 1995. M.P.’s mother, V.H., and Galindo began living together in 1998.
M.P. testified that when she was in the fifth grade, Galindo began looking at her differently and touching her “uncomfortably, ” grabbing her bottom as she walked down the stairs.
She recalled two occasions where he came into her room at night. Once, Galindo came in and touched her back or buttocks as she lay in bed. She kicked him, but he came closer and said, “‘Please come on.’” Believing Galindo wanted to have sex, she resisted, scratching him on his chest. Galindo left the bedroom.
Another night, M.P. woke up and found Galindo leaning against her with his penis in her hand. She let go of his penis, but he leaned closer. When she moved toward her younger siblings sleeping in the same bed, Galindo departed.
When she was 10 or 11 years old, M.P. awoke and found a white, gooey substance in her underwear. She believed the substance was sperm, having learned about it in school. This often occurred three times a week, and prompted her to throw away 10 to 12 pairs of underwear. M.P. also recalled Galindo crawling into her room, offering to give her money for a backpack she wanted, saying “‘Come on, just a little bit’.... ‘I’ll give you $5 or ten.’”
On August 9, 2007, a physician examined M.P. and determined she was pregnant, having probably conceived the child in January 2007. M.P. delivered a premature baby by cesarean section on August 25, 2007. The surgery left a four-inch scar on M.P.’s abdomen and M.P. told V.H. that Galindo was the father, and DNA analysis confirmed M.P.’s claim.
A Child Abuse Service Team (CAST) worker interviewed M.P. on September 12, 2007. M.P. described how Galindo would touch the back of her buttocks as she descended down the stairs, and the time she scratched him when he attempted to fondle her. She also described the incident when Galindo placed his penis in her hand, and how she awoke another morning to find her pants down, although her underwear had not been removed. She recalled another occasion where Galindo picked her up at ballet class and squeezed her breast over her clothes. Another time, he came into M.P.’s room and touched her bottom as she put sheets on a bed. When she pulled away, he pleaded, “‘Come on, I’ll give you five dollars.’” M.P. was unsure how she became pregnant, but explained she was a heavy sleeper and suspected Galindo was the father because he was the only person who ever touched her inappropriately.
The court admitted the CAST interview under Evidence Code section 1360: “In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule” under specified circumstances.
After his arrest, Galindo initially denied wrongdoing. When the investigator informed him they would conduct DNA testing, Galindo admitted he sometimes touched and hugged M.P. sexually on “her parts.” Asked how many times he “had sex, ” Galindo said “not a lot of times” and “about three, ” the first occurring about a year earlier. He quickly retracted his admission he had sexual intercourse with M.P., stating he only touched her. He admitted removing her underwear and inserting his fingers into her vagina on three occasions, estimating the first time occurred about a year earlier while he was intoxicated. The second incident occurred about six months after that. He also made M.P. masturbate him during the first or second incident. Galindo described a third incident occurring about a week before the interview.
He did not know how M.P. became pregnant and denied having sexual intercourse with her. But pressed about the pregnancy, Galindo then admitted “finishing” or ejaculating on M.P.’s stomach once. This occurred after the second time he inserted his fingers into her vagina. He admitted he “hugged” her while they both were naked, and made “movements” simulating sexual intercourse while lying next to her. She was on top of him. His penis was on her stomach and against her vagina, but he claimed he did not penetrate her.
Galindo testified and effectively adopted his pretrial statement to police officers. He admitted “three particular instances” of inappropriately touching M.P., including placing his fingers inside her vagina. There no were no “other instances where [he] had inappropriate contact... other than those that he described in” his interview. He added he would also go into M.P.’s bedroom and masturbate into her panties on numerous occasions, and toss the panties on the carpet when he finished.
Following a trial in July 2009, a jury convicted Galindo as noted above. In September 2009, the trial court sentenced Galindo to 15 years to life in prison on count three (§ 667.61, subd. (b)), plus a consecutive 12-year determinate term for the remaining four counts.
Former section 667.61, in effect when Galindo committed the crimes, provided any person convicted of committing a lewd and lascivious act (§ 288, subd. (a)), who was ineligible for probation (§ 1203.066) and who personally inflicted great bodily injury on the victim, “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years....” (Former § 667.61, subds. (b), (c)(7), (e)(3).)
II
Discussion
A. The Prosecution Presented Sufficient Evidence Establishing the Corpus Delicti for Counts Two, Four, and Five
Galindo contends we must reverse his convictions for violating section 288, subdivision (a), in counts two, four, and five, and the substantial sexual conduct findings relating to those counts, because the prosecution failed to prove the corpus delicti, which requires proof a crime occurred before the jury may consider a defendant’s extrajudicial statements. He notes the information alleged Galindo committed these crimes by inserting his penis or finger inside the victim’s vagina. He also notes that to prove these charges the prosecutor on closing arguments expressly elected to rely on Galindo’s pretrial statements to investigators that he digitally penetrated M.P. Because M.P. did not recall Galindo digitally penetrating her or having sexual intercourse with him, Galindo concludes the prosecutor failed to satisfy the corpus delicti. We do not find the contention persuasive.
Section 288, subdivision (a), provides that “Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The prosecutor argued defendant, in his statements concerning putting his finger inside M.P., “describes three different incidents, not two. Three. And based on the evidence, it happened a lot more. It happened a lot more. [¶] [M.P.]... said she threw her underwear away at least five times because there was sperm in it. There’s only one way that sperm got there.... And that’s because he had sex with [M.P.] and, when she woke up in the morning, that sperm came out. [¶] He says the first time lasted about five minutes, the second time three minutes. The third time he said happened less than a week ago [before the interview]. And it was the same thing. [¶] There’s your three acts of vaginal penetration with his finger. It’s alleged as either/or, penis or finger. It does not matter. Both are substantial sexual conduct. Both are penetration. It’s counts 2, 4, and 5. [¶] Count 3 is the pregnancy. [¶] And count 1 encompasses all the other touching and the penis in her hand.”
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself-i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citation.] California decisions have applied it at least since the 1860’s. [Citation.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1170 (Alvarez).) “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense, ’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Id. at p. 1171.)
The rationale underlying the rule is a desire to “‘protect a defendant from the possibility of fabricated testimony out of which might be wrongfully established both the crime and its perpetrator[, ]’” and a “fear that confessions may be the result of either improper police activity or the mental instability of the accused, and the recognition that juries are likely to accept confessions uncritically. [Citation.]” (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 397; see also People v. Culton (1992) 11 Cal.App.4th 363, 366-367.)
That rationale, however, is specifically addressed to concerns surrounding extrajudicial statements. “Without doubt, the safeguards surrounding a judicial proceeding will, except in extraordinary circumstances, operate to prevent the introduction of a pathologically false or coerced confession....” (People v. Quicke (1969) 71 Cal.2d 502, 521.) It is “elementary and unquestioned that a defendant who chooses to testify is just as competent to establish the corpus delicti as any other witness. [Citations.]” (People v. Ditson (1962) 57 Cal.2d 415, 445-446.) Thus, a defendant’s testimonial admissions, as opposed to extrajudicial ones, may be used to establish the corpus delicti of a crime. (Id. at pp. 445-446; Quicke, supra, 71 Cal.2d at p. 521; People v. Martinez (1994) 26 Cal.App.4th 1098, 1104; People v. Lawless (1987) 195 Cal.App.3d 1248, 1250.) Once the corpus delicti of the crime is established, the defendant’s extrajudicial statements are admissible. (Ditson, supra, 57 Cal.2d at pp. 445-446.)
Here, Galindo testified he had “describe[d] [to police interrogators] three particular instances in which [he] touched” M.P. His trial counsel then asked, “Were there any other instances where you had inappropriate contact with [M.P.] other than those that you described in your interview... ?” Galindo responded, “No.” The jury reasonably could view Galindo’s testimony as an admission he committed three separate acts of digital penetration, which corroborated his pretrial admissions in the police interview. Consequently, Galindo’s testimonial admissions established the corpus delicti for counts two, four and five.
In addition, at least in multiple-count sexual abuse cases involving minors, separate evidence on each individual count is not required to establish the corpus delicti; rather, evidence that multiple molestations occurred will establish the corpus delicti for multiple counts. People v. Culton, supra, 11 Cal.App.4th 363, is instructive. There, the prosecution charged defendant with 10 counts of committing lewd and lascivious acts on a child under the age of 14. The defendant admitted in a pretrial statement to investigators he committed each of the offenses. A pediatrician who examined the victim found physical abnormalities consistent with sexual assault or abuse. (Id. at p. 368.) The appellate court rejected the defendant’s claim that the corpus delicti showed no more than one lewd act occurred, explaining the pediatrician’s testimony established the corpus delicti for all the offenses. (Id. at p. 372, italics added.)
Similarly, in People v. Tompkins (2010) 185 Cal.App.4th 1253, the prosecution charged the defendant with 11 counts of lewd and lascivious acts on a child under 14. Defendant argued the corpus delicti rule prohibited convicting him of acts described only by his out-of-court statements to an investigator. Relying on Culton, the court rejected the argument. “We read Culton as standing for the proposition that separate evidence is not required as to each individual count to establish the corpus delicti; rather, evidence that multiple molestations took place will establish the corpus delicti for multiple counts. [Citation.]” (Tompkins, supra, 185 Cal.App.4th at p. 1260.)
Here, the evidence shows M.P. was the victim of multiple molestations. M.P. testified Galindo began molesting her when she was about seven or eight years old. On different occasions he grabbed her bottom, came into her room and touched her back or bottom as she lay in bed, and implored her to have sexual relations. Once, she awoke to find his penis in her hand. Another time, she felt a physical pain in her private area as if she had been on a bike. Most significantly, Galindo impregnated M.P., and her discovery of semen in her underwear on at least five occasions supports a conclusion Galindo had sexual intercourse with her on those occasions. The physical evidence corroborated defendant’s extrajudicial admissions. The prosecution therefore easily satisfied the corpus delicti rule on counts two, four, and five.
B. Government Code Section 70373 Court Facilities Assessments
Galindo also contends the trial court erred in imposing Government Code section 70373 court facilities assessments. Government Code section 70373, subdivision (a)(1), provides: “(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.... The assessment shall be imposed in the amount of thirty dollars ($30) for each... felony....” Government Code section 70373 became effective January 1, 2009 (Stats. 2008, ch. 311, § 6.5, eff. Jan.1, 2009 (S.B. No. 1407)), after Galindo committed the offenses in this case. Galindo argues the Legislature did not expressly provide for retroactive application, and imposition of the assessments violated the constitutional prohibition against ex post facto laws.
We recently rejected identical claims in People v. Cortez (2010) 189 Cal.App.4th 1436, explaining “the fee authorized by section 70373 is triggered by a conviction, not the underlying criminal act, ” and therefore is applied prospectively to all convictions entered after the date of its enactment. (Id. at p. 1443.) Equally important, we observed, “the court facilities fee does not operate as a penalty, and thus ex post facto principles do not apply. [Citation.]” (Ibid.; accord People v. Lopez (2010) 188 Cal.App.4th 474; People v. Mendez (2010) 188 Cal.App.4th 47; People v. Knightbent (2010) 186 Cal.App.4th 1105; People v. Phillips (2010) 186 Cal.App.4th 475; People v. Fleury (2010) 182 Cal.App.4th 1486; see People v. Alford (2007) 42 Cal.4th 749 (Alford); cf. People v. High (2004) 119 Cal.App.4th 1192 [state court construction penalty mandated by Government Code section 70372 deemed punitive].) Accordingly, the trial court did not err in imposing the section 70373 court facilities assessments.
C. Section 1465.8 Court Security Fees
The jury found Galindo guilty on July 15, 2009. At the sentencing hearing on September 11, 2009, the trial court orally pronounced a $20 court security fee (§ 1465.8, subd. (a)(1)) as to each count. The sentencing minute order and abstract of judgment reflect imposition of $150 in court security fees, $30 as to each count. Galindo contends the minute order and abstract must be corrected to reflect the actual order made by the trial court. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
At the time of sentencing in 2009, section 1465.8 provided, “(a)(1) To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. [¶] (2) For the purposes of this section, ‘conviction’ includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501 and 42005 of the Vehicle Code. This security fee shall be deposited in accordance with subdivision (d), and may not be included with the fee calculated and distributed pursuant to Section 42007 of the Vehicle Code. [¶] (b) This fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment as specified in subdivision (a) of Section 1464. The penalties authorized by Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, and the state surcharge authorized by Section 1465.7, do not apply to this fee. [¶] (c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient amount to include the fee prescribed by this section. [¶] (d) Notwithstanding any other provision of law, the fees collected pursuant to subdivision (a) shall all be deposited in a special account in the county treasury and transmitted therefrom monthly to the Controller for deposit in the Trial Court Trust Fund. The fees collected pursuant to this section shall not be subject to subdivision (e) of Section 1203.1d, but shall be disbursed under subdivision (b) of Section 1203.1d. [¶] (e) The Judicial Council shall provide for the administration of this section. [¶] (f) This section shall remain in effect only until July 1, 2011, and as of that date is repealed, unless a later enacted statute, that is enacted before July 1, 2011, deletes or extends that date.”
The Attorney General responds the order and abstract need not be corrected because at the time of Galindo’s sentencing hearing on September 11, 2009, section 1465.8 had been amended effective July 28, 2009, to require a $30 fee. The Attorney General notes that in Alford, supra, 42 Cal.4th 749, the Supreme Court held section 1465.8, as originally enacted in 2003, applied to all convictions after its operative date regardless of the date of the offense. (Id. at pp. 754-755.) Alford noted the measure was intended to operate immediately to produce the needed revenue in the budget year and the nonpunitive fee was part of a budgetary measure to fund court security. (Id. at pp. 756-757.) The Attorney General contends Alford’s analysis applies here. “[T]he intent to apply the increased fee immediately to offenses resulting in conviction is gleaned from the fact that the $10 increase is the product of urgency legislation. [] Additionally, the bill includes a sunset on the fee increase – on July 1, 2011, the start of a new fiscal year, the fee is reduced to $20. This indicates the Legislature’s intent that the extra $10 be collected only during a defined period of time: the 2009-2010 and 2010-2011 fiscal years. If the fee increase was not immediately effective, then it ‘would not have produced the needed revenue in the budget year[s].’”
We agree. At the time of sentencing in 2009, section 1465.8 provided, “(a)(1) To ensure and maintain adequate funding for court security, a fee of thirty dollars ($30) shall be imposed on every conviction for a criminal offense....” (Italics added.) Imposition of judgment occurs at the time of sentencing. Because section 1465.8 was amended on July 28, 2009, and the court imposed Galindo’s sentence on September 11, 2009, Galindo was subject to the increased fee. (Cf. People v. Davis (2010) 185 Cal.App.4th 998, 1001 [Government Code section 70373 court facilities fee did not apply where the defendant’s conviction by plea or jury verdict occurred before the effective date of the statute].) We will modify the judgment (§ 1260) to reflect imposition of $150 in court security fees.
D. No Contact/Visitation Order
At the sentencing hearing, the trial court initially stated an intention to order Galindo to have no contact with M.P. Galindo objected “with respect to the court’s jurisdiction[.]” The prosecutor commented “technically, we lose jurisdiction once the defendant is sentenced to prison to be able to impose or enforce that protective order.” The court stated it would accept the prosecutor’s “stipulation that that is the case, and I’ll decline to issue” a no contact order. However, the minute order from the sentencing hearing and the abstract of judgment specifies Galindo may “not have any contact with victim... and baby directly, indirectly, or through a third party except by an Attorney of Record.”
The Attorney General concedes the minute order and abstract of judgment must be modified to delete the no contact provision because the court elected not to make the order. We accept the concession. However, section 1202.05, requires the trial court to prohibit “all visitation between the defendant and the child victim” (italics added), and to transmit that order “to the Department of Corrections, to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim, and to the child victim.” (Italics added.) The court’s failure to prohibit visitation was unauthorized. (See People v. Smith (2001) 24 Cal.4th 849, 852-854.) We will modify the judgment accordingly.
Penal Code section 1202.5, subdivision (a), provides: “(a) Whenever a person is sentenced to the state prison on or after January 1, 1993, for violating Section 261, 264.1, 266c, 285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of those offenses is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim. The court’s order shall be transmitted to the Department of Corrections, to the parents, adoptive parents, or guardians, or a combination thereof, of the child victim, and to the child victim. If any parent, adoptive parent, or legal guardian of the child victim, or the child victim objects to the court’s order, he or she may request a hearing on the matter. Any request for a hearing on the matter filed with the sentencing court shall be referred to the appropriate juvenile court pursuant to Section 362.6 of the Welfare and Institutions Code.” (See Robin J. v. Superior Court (2004) 124 Cal.App.4th 414, 426, fn. 10 [section 1202.05 was enacted “to prevent inmates from having access to their child victims except where a juvenile court had determined that it would be in the child’s best interests”]; see also § 5054.2 [requiring Secretary of Department of Corrections to prohibit visitation between incarcerated person and child victim].)
III
Disposition
The judgment is modified (§ 1260) to impose $150 in court security fees pursuant to section 1465.8, and to prohibit visitation between Galindo and M.P. pursuant to section 1202.05. The court is directed to amend its September 11, 2009, minute order to reflect Galindo is prohibited from visiting M.P. pursuant to section 1202.05. The trial court is further directed to prepare an amended abstract of judgment, and to forward a copy to the Department of Corrections and Rehabilitation.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.
Section 1203.066, subdivision (a), provides, “probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons:... [¶]... [¶] (8) A person who, in violating Section 288... has substantial sexual conduct with a victim who is under 14 years of age.”
“‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.” (§ 1203.066, subd. (b).)