Opinion
D075261
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. ISAIAS LOPEZ NUNEZ, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD269893) APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Affirmed. Patricia J. Ulibarri, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Isaias Lopez Nunez raped and sexually abused his three daughters from 1994 through 2003. He contends that the trial court sentenced him under the current law and not under the law in effect when he committed his crimes, thus abusing its discretion and violating the ex post facto clause. We find no error, as we explain below.
BACKGROUND
Procedure
A jury convicted defendant of 12 counts of rape of a child under the age of 14 (Pen. Code, §§ 261, subd. (a)(2), 269) and three counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)). The jury also found true that the defendant committed sexual offenses against multiple victims in connection with the three lewd act convictions. (§§ 667.61, subds. (b), (c) & (e)(4); 1203.066, subd. (a)(7).) The court determined that each count was a separate act with multiple victims. It sentenced defendant to 15 consecutive terms of 15 years to life on each count, for a total term of 225 years to life. Defendant filed a timely notice of appeal.
Further statutory references are to the Penal Code unless otherwise specified.
Facts
Defendant and his wife had six children, four girls and two boys. Es.N. was the oldest girl, followed by E.N., M.N., C.N., and two younger boys. Defendant and his wife were violent and physically abusive toward each other. The children were all taken to the Polinsky Children's Center when E.N. was a young teen and M.N. and C.N. were about six to eight years old. E.N. did not mention the abuse because defendant had told her the children would be separated if she talked to police or social workers. Es.N. did not return home with the family. The children's mother left the family after they returned home, leaving the children alone with defendant.
Counts 1-6: Aggravated Sexual Assault (Rape by Force or Duress) of and Lewd Act on a Child Under 14, E.N., November 30, 1994 through September 13, 1997
E.N. was born in September 1983. She was 35 years old when she testified at trial. Starting when E.N. was five years old, defendant penetrated E.N.'s vagina with his fingers when he washed her and told her to touch his penis when he took showers with her. Defendant did this about three times per week, until E.N. was seven or eight years old. From the time E.N. was about eight or nine, defendant penetrated her vagina with the tip of his penis every other day for about a year. Defendant inserted his penis all the way into E.N.'s vagina when she was 10, although she told him that it hurt. E.N. asked why he hurt her. Defendant said, "You're a big girl now. You can take it." After a break of a few days, defendant had intercourse with E.N. every day from then on until she turned 17 years old. E.N. felt like she could not say no to defendant.
E.N. left home when she was 17. She told police about the abuse when she was 32 years old, and her sisters talked to the police after E.N.
Counts 7-14: Aggravated Sexual Assault (Rape by Force or Duress) of and Lewd Act Upon a Child Under 14, C.N., January 1, 1997-May 30, 2003
C.N., the youngest girl in the family, was born in May 1989. From the time C.N. was five until she was about 10 years old, defendant touched her vagina almost every other day. When C.N. was 10 and continuing thereafter, defendant inserted part of his penis into her vagina. He penetrated her vagina completely when she was about 13 years old, and continued to rape her about every other day until she turned 18 years old.
Count 15: Lewd Act on a Child Under 14, M.N., January 1, 1996 - May 30, 2003
M.N. was born in June 1988. She was 30 when she testified at trial. Defendant first penetrated M.N.'s vagina with his penis when she was about six years old. He took her into the bedroom, put M.N. on the bed and forcibly pulled down her pants and underwear. Defendant raped M.N. and touched her vagina with his bare hand about once a week from the time she was six or seven until she was 15 years old.
Defendant's Admissions
E.N. and C.N. made a pretext call to defendant. E.N. accused defendant of having sex with her and C.N. throughout their childhood. Defendant apologized. Defendant called C.N. a week later and offered to give her $200 if she would stay silent.
DISCUSSION
When defendant committed lewd acts on each of the victims, the law permitted trial courts to grant probation to offenders who were relatives even when there were multiple victims. The law in effect when the court sentenced defendant no longer provided for a discretionary grant of probation. Defendant contends that the trial court was not aware of its discretion to grant probation when it sentenced him, and therefore violated the ex post facto prohibition by imposing sentences on the three lewd-act convictions under the current, more severe law. Defendant forfeited any error, and in any event, he has not established error.
Proceedings Below
Defendant was convicted of committing a lewd act on E.N. between January 1, 1996 and December 31, 1996; committing a lewd act on C.N. between January 1, 1996 and May 30, 2003; and committing a lewd act on M.N. between January 1, 1996 and May 30, 2003; with true findings as to all counts that defendant committed sexual offenses on multiple victims. The One Strike law, section 667.61, provides for a punishment of 15 years to life (§ 667.61, subd. (b)) for defendants who commit a lewd act against a child under the age of 14 (id. at subd. (c)(8)) against multiple victims (id. at subd. (e)(4)). Such defendants are not eligible for probation. (§ 1203.066, subd. (a)(7).) Before 2006, however, a court had discretion under former section 1203.066, subdivision (c), to grant probation in some circumstances to defendants who committed lewd acts on more than one child and who were related to the children or members of their household.
Here, the probation report stated that defendant was "absolutely ineligible for a grant of probation pursuant to [section] 1203.066[, subdivision] (a)(7) in that he has been convicted of [section] 288[, subdivision] (a) and [section] 269." The prosecutor's sentencing statement said that defendant was statutorily ineligible for probation because he was convicted of sections 269 and 288, subdivision (a), with true findings pursuant to sections 1203.066, subdivision (a)(7) and 667.61, subdivisions (b), (c) and (e). Defense counsel submitted to the court on sentencing.
At sentencing, the court said with respect to the trial testimony, "The things that I heard touched me very, very much. And there's nothing that can be said here or done here to rectify it. . . . There's nothing I can do today that can replace your childhood or bring back any happiness that you deserved." With respect to the convictions, the court said, "It was 9 years of pure Hades for these children." The court concluded that every count of which defendant was convicted was a "separate and distinct act with multiple victims pursuant to [section] 269[, subdivision] (c) [consecutive sentences mandatory]." It then said, "Accordingly, probation is denied and I am going to—and maybe it's for me that I want everyone to know, and maybe it's just for me, for my satisfaction, that probation is denied."
Legal Principles
Both the United States and the California Constitutions prohibit criminal or penal laws that are ex post facto. (U.S. Const., art. I, § 10, cl. 1; Cal. Const. art. I, § 9.) 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, citing People v. Grant (1999) 20 Cal.4th 150, 158.)
Once the Legislature has statutorily afforded a benefit, that benefit may only be taken away prospectively. (People v. Williams (1987) 196 Cal.App.3d 1157, 1160 (Williams).) In Williams, the court had struck the enhancements for two prior serious felony convictions after the defendant pleaded guilty. Subsequent law prohibited the striking of the enhancements. (Id. at p. 1159.) The People appealed, seeking imposition of the enhancements pursuant to the new law. (Ibid.) The appellate court held that application of the new law would have violated the ex post facto clause, and therefore the trial court did not err in striking the defendant's prior conviction enhancements. (Id. at pp. 1160-1161.) The court explained, "It is irrelevant to an ex post facto determination that a defendant could have received the same sentence under the old law as he definitely will under the new law. [Citations.] . . . By making mandatory what was previously discretionary, the Legislature has changed the standard by which punishment will be imposed to defendant's disadvantage. Applying these laws to defendant thus runs afoul of the ex post facto clause." (Id. at p. 1160.) Because the law permitted probation at the time that defendant committed his acts, he must be afforded the possibility of probation at the time he was sentenced.
One Strike Law
The current version of section 667.61, the "One Strike" law, mandates a prison term of 15 years to life for anyone convicted of a lewd act in violation of section 288, subdivision (a) if it was pleaded and proved that the defendant had committed that crime against more than one victim. (§ 667.61, subds. (b), (c)(8) & (e)(4).) The statute in effect when defendant abused the children 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), eff. to Sept. 19, 2006.)
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), eff. to Dec. 31, 2005; People v. Wills (2008) 160 Cal.App.4th 728, 736.) The defendant could overcome that presumption if the court found five criteria: (1) the defendant was related to the victim or a member of the victim's household; (2) a grant of probation was in the best interest of the child; (3) rehabilitation was feasible; (4) the defendant was removed from the household until the court determined that returning the defendant would be in the best interest of the child; and (5) there was no threat of physical harm to the child if the defendant was granted probation. (Former § 1203.066, subd. (c).) The defendant had the burden of establishing all five criteria. (People v. Groomes (1993) 14 Cal.App.4th 84, 89 (Groomes).) Even if all the factors were satisfied, the court " '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; former § 1203.066, subd. (c)(5).) The trial court was required to "state its reasons on the record for whatever sentence it impose[d] on the defendant." (Former § 1203.066, subd. (c).)
Further references to former section 1203.066 are to this version effective until December 31, 2005. --------
Forfeiture
Defendant failed to ask the court to consider probation at the time of sentencing and thus has forfeited his claim on appeal. Sentencing claims are forfeited if not timely asserted. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Defendant asserts that violations of ex post facto rules are not forfeited, in reliance on People v. Hiscox (2006) 136 Cal.App.4th 253, 258-259 (Hiscox). In Hiscox the trial court imposed punishment based on a law that was effective only after November 20, 1994. The lewd act offenses, however, could have occurred before that date, because the guilty verdict was based on "generic" testimony, i.e., " 'testimony describing a series of essentially indistinguishable acts of molestation.' " (Id. at p. 256.) Imposition of a punishment on offenses that occurred before the enactment of that punishment were unauthorized by law, as well as ex post facto. A claim of unauthorized punishment is never forfeited because it cannot be imposed under any circumstance. (Id. at p. 258.) Hiscox is not applicable here, because the sentence imposed on defendant was authorized by the existing law. Defendant failed to ask the court to consider probation, and has forfeited his claims on appeal by failing to bring this contention to the attention of the trial court. (Scott, at p. 353.)
Ineffective Assistance of Counsel
Defendant counters that if this issue was forfeited, it was due to ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, defendant must prove two elements: (1) trial counsel's deficient performance and (2) prejudice as a result of that performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) Representation is deficient if it falls below an objective standard of reasonableness under the prevailing norms of practice. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, at p. 689; Bell, at p. 125.) To show prejudice, the defendant has the burden of showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; Bell, at p. 125.) If "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, at p. 697; People v. Bonilla (2018) 29 Cal.App.5th 649, 654.)
Even assuming, without deciding, that counsel erred in not asking the court to consider probation, there is no reasonable likelihood that defendant would have obtained a more favorable result in this case. The court expressed its opinion of the victims' lives as children: pure hell. Defendant's lewd touchings involved substantial sexual contact, against three very young girls, hundreds of times. There is no reasonable probability that the trial court would have granted probation to defendant on three counts, while sentencing him to 12 other consecutive terms of 15 years to life.
No Error
In addition to the lack of prejudice if counsel performed deficiently in failing to request probation, we find no error on the merits.
Sentencing decisions are reviewed for an abuse of discretion. To demonstrate an abuse of discretion, the defendant has the burden of clearly showing that the sentencing decision was irrational or arbitrary. " 'In reviewing the matter on appeal, a trial court is presumed to have acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary.' " (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1091.) The court must also be aware of its sentencing discretion. An abuse of discretion exists when the court makes a statement, or other evidence shows, that the court is not aware of its discretion. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421 (Bolian).) To meet this burden, the defendant must "affirmatively demonstrate error on the face of the record." (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
On appeal, we indulge all intendments and presumptions to support the court's decision. The defendant bears the burden of affirmatively showing error. (People v. Hurtado (2019) 35 Cal.App.5th 871, 878 (Hurtado).) We presume sentencing courts know and follow the law. Therefore, we affirm when the record is silent on the court's reasoning and decisionmaking. "Error may not be presumed from a silent record." (People v. Brown (2007) 147 Cal.App.4th 1213, 1229; Bolian, supra, 231 Cal.App.4th at p. 1421; Davis, supra, 50 Cal.App.4th at p. 172.)
Defendant has not shown a statement from the court or other evidence that it considered the 15-year-to-life terms mandatory for the three lewd acts. On the contrary, the court considered probation and denied it. The court briefly described the damage done by defendant, its hope that the victims could recover, and its inability to change the past. The court found each count a separate act, then said, "Accordingly, probation is denied, and I am going to—and maybe it's for me that I want everyone to know, and maybe it's just for me, for my satisfaction, that probation is denied." We acknowledge that the prosecutor and probation officer both told the court that probation was not permissible, but we are not persuaded that the court followed those statements, especially in light of the court's own statements. We presume that the court is informed on the law and not dependent on the parties' statements of law. The record shows that the court considered probation. Defendant has not produced affirmative proof to the contrary. (Hurtado, supra, 35 Cal.App.5th at p. 878; Bolian, supra, 231 Cal.App.4th at p. 1421; Davis, supra, 50 Cal.App.4th at p. 172.) "The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
We conclude that defendant has not borne his burden of affirmatively showing error, because the court considered probation and denied it. Further, the court's comments about the effect of the multiplicity of sexual assaults on the children, the suffering the victims experienced when young, and the inability of even a lifetime sentence to rectify the harm to the victims, demonstrate the court's determination that probation for defendant would not be in the best interest of the victims. (See former § 1203.066, subd. (c)(2).) The court could not have found all five prerequisites for probation. (Groomes, supra, 14 Cal.App.4th at p. 89.)
Any possible error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless error standard for federal constitutional error].) Even if the court had granted probation on the three counts of committing a lewd act, defendant was still facing a sentence of 180 years to life on his 12 other convictions. Granting probation on the three lewd-act convictions would have had no appreciable effect on defendant's sentence.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.