Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07NF2920 Patrick Donahue, Judge.
David L. Polsky, 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, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Jose Hugo Simon of 14 counts of lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)) and one count of possession of child pornography (§ 311.11, subd. (a)). The court sentenced defendant to 135 years to life in state prison. Defendant claims there is insufficient evidence to support his convictions with regard to two counts of lewd conduct, and further claims the jury was not properly instructed with regard to those two counts. Defendant also raises a series of arguments with regard to the propriety of his sentence. Although we affirm the judgment of conviction, we reverse the judgment with regard to defendant’s sentence and remand for resentencing.
All statutory references are to the Penal Code.
FACTS
The operative information accused defendant of lewd conduct with regard to three individual victims: Jane Doe #1 (counts 1 through 7, committed between January 18, 2005 and August 9, 2007); Jane Doe #2 (counts 8 through 12, committed between October 22, 2006 and August 8, 2007); and Jane Doe #3 (counts 13 and 14, committed between June 1, 2005 and August 9, 2007). Along with testimony by various witnesses, video and photographic depictions of some of defendant’s conduct (created by defendant himself) were entered into evidence and displayed for the jury’s consideration. Due to the limited nature of defendant’s appeal, we will limit our recitation of the facts to aspects of the record necessary to decide this appeal. Moreover, for ease of reference, we will set forth the facts applicable to each of defendant’s arguments in the discussion section below.
DISCUSSION
Sufficiency of the Evidence — Counts 13 and 14 (Jane Doe #3)
Defendant contends the video evidence used to establish defendant’s lewd acts on Jane Doe #3 was insufficient to support the convictions because “while the video shows [defendant] lifting [Jane Doe #3’s] skirt twice, it does not show that he touched her butt.” Defendant “submits that lifting [Jane Doe #3’s] skirt, regardless of [defendant’s] intent, is not sufficient to constitute a lewd act within the meaning of section 288.” Defendant does not assert that there is insufficient evidence to support the jury’s finding of guilt with regard to his intent.
“[A]ny person who willfully and lewdly commits any lewd or lascivious act, ... 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....” (§ 288, subd. (a).) “[S]ection 288 is violated by ‘any touching’ of an underage child accomplished with” the required intent. (People v. Martinez (1995) 11 Cal.4th 434, 452.)
Our independent review of Exhibit 24 (the video evidence pertaining to defendant’s conduct with Jane Doe #3) leads us to conclude that the jury had sufficient evidence to find defendant actually touched Jane Doe #3. The video appears to portray defendant, in two separate instances: (1) touching Jane Doe #3 on the lower back (covered by a shirt) as he directed her toward a computer screen; (2) grabbing and lifting Jane Doe #3’s skirt; and (3) touching Jane Doe #3 on the buttocks (covered by underwear) as he held the skirt up. Jane Doe #3 stepped away from defendant briefly after defendant touched her the first time. Defendant then repeated the process (thereby creating the basis for the second charged count).
Thus, the premise of defendant’s argument is false. We need not examine the hypothetical legal question presented by defendant (i.e., can touching and lifting a skirt, by itself, constitute lewd conduct). There is substantial evidence in the record that defendant touched Jane Doe #3’s body as alleged in counts 13 and 14.
Alleged Instructional Error — Counts 13 and 14 (Jane Doe #3)
Relatedly, defendant asserts the court should have provided instructions for attempted lewd act and simple assault as lesser included offenses for counts 13 and 14. Defendant’s counsel notes that this argument is also based on his review of the video evidence regarding counts 13 and 14.
As to counts 1 through 14, the court instructed the jury with CALCRIM No. 1110 (lewd or lascivious act on a child under the age of 14) and CALCRIM No. 960 (simple battery). Trial counsel for defendant stated on the record with regard to jury instructions: “I am specifically not requesting the attempted [section] 288, which is a lesser, and I am requesting only the [section] 242 battery... because every count appears to have some evidence of touching, it appears that battery is more appropriate than simple assault.” The court agreed: “Okay. And the court believes that the evidence shows that battery is the appropriate lesser included instruction. And based upon the request of the defense, the court will not give the assault, but give the simple battery lesser included instruction, and the court does not believe that the evidence substantiates an attempt lesser included as well.” During closing argument, defense counsel implored the jury to consider the lesser included charge of battery with regard to some of the allegations, including “smackings on the butt. There are touchings that you have seen in the evidence that could fit a [battery] charge rather than a [lewd conduct] charge, so they are there for your consideration.”
As modified, this instruction stated: “The defendant is charged in Counts 1 [through] 14 with committing a lewd or lascivious act on a child under the age of 14 years in violation of Penal Code, subdivision 288(a). To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing; 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; AND 3. The child was under the age of 14 years at the time of the act.... [¶]... [¶] It is not a defense that the child may have consented to the act.”
As modified, this instruction stated: “Simple battery is a lesser included offense to counts 1 [through] 14. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched [Jane Doe #1, Jane Doe #2, or Jane Doe #3] in a harmful or offensive manner. [¶]... [¶] The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.”
“California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks (1998) 19 Cal.4th 108, 112.) Here, however, the video evidence shows defendant touching Jane Doe #3, as explained above. Thus, the court correctly instructed the jury.
But even if the court should have instructed the jury with an attempt or simple assault instruction, any error was invited. “[A] defendant may not invoke a trial court’s failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.” (People v. Barton (1995) 12 Cal.4th 186, 198.) Defense counsel opted not to strain the credulity of the jury by denying that the video evidence really showed what it appeared to show. She instead sought to focus the jury’s attention on reasonable disputes over the evidence.
Imposition of Consecutive and Concurrent Life Terms
Applying section 667.61 (the so-called “One Strike” law), the court imposed sentences of 15 years to life with regard to each of defendant’s 14 convictions of lewd conduct. The court ran counts 4, 5, 6, 12, and 14 concurrently; the remainder of the counts were run consecutively for defendant’s total sentence of 135 years to life.
Defendant posits the court erred by imposing sentences of 15 years to life with regard to counts 4, 5, 6, 9, 11, and 14. In separate sections of his brief, defendant argues the court erred by failing to understand it had discretion to run his life sentences concurrently rather than consecutively, or (in the alternative) improperly exercised such discretion with regard to certain counts. As noted above, the operative information accused defendant of lewd conduct with regard to three individual victims: Jane Doe #1 (counts 1 through 7, committed between January 18, 2005 and August 9, 2007); Jane Doe #2 (counts 8 through 12, committed between October 22, 2006 and August 8, 2007); and Jane Doe #3 (counts 13 and 14, committed between June 1, 2005 and August 9, 2007). The jury’s verdicts, which specified the individuals victimized by defendant in each applicable count, did not make any findings with regard to the date of the offenses. The jury did make a separate factual finding that defendant’s lewd conduct was committed against “more than one victim.”
Defendant’s charged offenses (§ 288, subd. (a)) authorize a base punishment of “three, six, or eight years” in state prison. But, given defendant’s multiple counts of lewd conduct against multiple child victims, the trial court properly looked to section 667.61 at the sentencing hearing. “The One Strike law (§ 667.61) was added to the Penal Code in 1994. [Citations.] Like the Three Strikes Law, the One Strike law is an alternative sentencing scheme, but it applies only to certain felony sex offenses.... As with the Three Strikes law and statutory sentencing enhancements, the jury must first decide whether all the elements of the underlying substantive crime have been proven. If not, it returns an acquittal and the case is over. If the jury convicts on the substantive crime, it then independently determines whether the factual allegations that would bring the defendant under the One Strike sentencing scheme have also been proven. Because the sentencing allegations have the potential to increase punishment, the defendant has a Sixth Amendment right to have their truth decided by a jury.” (People v. Anderson (2009) 47 Cal.4th 92, 102-103.)
Different versions of section 667.61 have been in effect during different time periods relevant to this case: (1) a pre-September 20, 2006 version; (2) a September 20, 2006 through November 8, 2006 version; and (3) a November 8, 2006 through September 9, 2010 version. Muddying the waters even more, the trial court did not explicitly state which version of section 667.61 it was applying at the sentencing hearing. But the court did cite two cases interpreting pre-September 20, 2006 law as guiding its sentencing analysis. (People v. Jones (2001) 25 Cal.4th 98 (Jones); People v. Fuller (2006) 135 Cal.App.4th 1336.) And the prosecutor relied on the pre-September 20, 2006 version of section 667.61 in her sentencing brief. As there is no explicit finding in the record (by the jury or the court) with regard to when each of the lewd conduct offenses occurred, and no indication the court purported to apply post-September 20, 2006 law to defendant’s sentence, we will assume the court applied the pre-September 20, 2006 version of section 667.61. The question presented, then, is whether the court applied this former version of section 667.61, enacted by statutes 1998, chapter 936, section 9, pages 6874-6876, properly.
No one contends that the current version of section 667.61, in effect since September 9, 2010, had (or should have had) any bearing on the sentence in this case. We will ignore the current version of the statute for purposes of this case.
To the extent defendant’s sentence would be harsher under the amended law, constitutional issues would have been raised had the court applied post-September 20, 2006 law to sentence defendant. “The United States Constitution and the California Constitution proscribe ex post facto laws. [Citations.] Both constitutions protect against the later adoption of a statute that inflicts greater punishment than the law in effect at the time of the commission of the crime.” (People v. Riskin (2006) 143 Cal.App.4th 234, 244.) It is the prosecution’s burden to prove beyond a reasonable doubt that an offense occurred after the date a punitive statute takes effect. (Id. at pp. 244-245 [remanding for resentencing on lewd conduct conviction because prosecutor did not sufficiently prove lewd conduct occurred after effective date of § 667.61].) At least with regard to whether a sex offense occurred prior to the initial enactment of section 667.61, the jury (not a judge at a sentencing hearing) must determine whether offenses occurred prior to the effective date of section 667.61. (People v. Hiscox (2006) 136 Cal.App.4th 253, 260-262 [remanding for resentencing because the jury was not asked to determine whether conduct occurred prior to November 30, 1994] (Hiscox).) According to Hiscox, such result necessarily follows from United States Supreme Court authority regarding a defendant’s constitutional right to a jury trial. (See, e.g., United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296.) “Since the jury was not asked to make findings on the time frame within which the offenses were commtted, the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurring on or after November 30, 1994. [Citation.] It would be inappropriate for us to review the record and... infer that certain acts probably occurred after that date.” (Hiscox, at p. 261.) Given our conclusion that the court applied pre-September 20, 2006 law in this case, we need not wade into ex post facto or jury trial right issues at this time.
The applicable former version of section 667.61 provides, in relevant part: “a person who is convicted of” a qualifying offense, including lewd conduct under section 288, subdivision (a); and is “convicted in the present case... of committing [a qualifying offense] against more than one 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)(5).) If one reads only subdivisions (b), (c), and (e), the statute is ambiguous: does it mean that each count of lewd conduct against a child under the age of 14 — when accompanied by a finding of more than one victim — should result in a separate sentence of 15 years to life, or does it mean that the total sentence in a case involving lewd conduct and multiple victims should be 15 years to life?
This ambiguity, however, is quickly resolved by other language in the statute: “The term [of 15 years to life] 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 [15 years to life term] shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Former § 667.61, subd. (g); see People v. Murphy (1998) 65 Cal.App.4th 35, 40 [“no ambiguity” in this “limitation on the number of life sentences which can be imposed”].)
“[M]ultiple sex offenses occurred on a ‘single occasion’... if there was a close temporal and spatial proximity between offenses.” (Jones, supra, 25 Cal.4th at pp. 100-101.) The Jones court rejected an argument that the definition of “occasion” used in section 667.6, subdivision (d), (the “reasonable opportunity to reflect” standard) should be used in interpreting former section 667.61, subdivision (g). (Jones, at pp. 104-107.) “[T]he rule of lenity... points to the conclusion that the Legislature intended to impose no more than one [life] sentence per victim per episode of sexually assaultive behavior.” (Id. at p. 107.) The Jones court concluded the trial court erred by imposing three consecutive 25 years to life sentences (under § 667.61, subd. (a)) for forcible rape, forcible oral copulation, and forcible sodomy convictions based on conduct perpetrated upon a single victim during a single “occasion” (over the course of approximately an hour and a half, the defendant pulled the victim to an isolated location and proceeded to brutalize her in a variety of ways). (Jones, at pp. 101-103.)
In contrast, the post-September 20, 2006 versions (including the current version of the statute) eliminate the language used in pre-September 20, 2006 subdivision (g), and instead provide: “For [applicable offenses], the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” (§ 667.61, subd. (i).) Thus, under the newer versions of the statute, consecutive life sentences are mandatory for each qualifying conviction, and the standard for determining a separate “occasion” set forth in Jones is abrogated. But, for whatever reason, recently amended versions of section 667.61, subdivision (i), do not include in its list of applicable offenses violations of section 288, subdivision (a). The list of applicable offenses includes those “specified in paragraphs (1) to (7), inclusive of subdivision (c)....” (Compare § 667.61, subd. (i); former § 667.61, subd. (g).) Although lewd conduct under section 288, subdivision (a), was formerly listed under section 667.61, subdivision (c)(7), since September 2006 it has been listed under section 667.61, subdivision (c)(8). We need not examine the ramifications of post-September 2006 amendments to section 667.61 at this time. (See People v. Valdez (2011) 193 Cal.App.4th 1515, 1524 [rejecting argument that 2010 amendments to One Strike law provides for less punishment when qualifying felonies are lewd and lascivious acts under § 288, subd. (a)].)
Thus, the applicable former version of section 667.61 limits the number of life sentences that shall be imposed depending on the number of victims and the number of “occasions” during which the conduct resulting in multiple convictions occurred. (See, e.g., People v. Fuller, supra, 135 Cal.App.4th at pp. 1342-1343.) For any conviction that is not eligible for a life sentence under section 667.61, the sentencing court should impose a sentence “authorized under any other law....” (Former § 667.61, subd. (g); see People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.)
As noted above, the “multiple victim” finding must (in general) be made by a jury. But courts have held that a sentencing judge may make the “occasion” finding under former section 667.61, subdivision (g), without violating a defendant’s right to a jury trial on every factual issue that exposes a defendant to a higher sentence. (People v. Martinez (2008) 166 Cal.App.4th 1598, 1605-1606 (Martinez); People v. Retanan (2007) 154 Cal.App.4th 1219, 1228-1230 [“We find subdivision (g) of [former] section 667.61 to be closely analogous to section 654”].) “There is no right to a jury trial on factual determinations that do not serve as the ‘functional equivalent’ of an element of a crime.... The court’s finding that multiple life sentences could be imposed because the sexual assaults occurred on separate occasions is similar to the factors a court may consider in deciding whether to impose consecutive sentences where a defendant has been convicted of multiple felony offenses.” (Martinez, supra, 166 Cal.App.4th at pp. 1605-1606.) Defendant makes no claim on appeal that the jury was required to make the “occasion” finding and we do not therefore directly address the issue.
Unlike more recent versions, the applicable former version of section 667.61 is silent with regard to whether the court should run the imposed life sentences consecutively or concurrently. Thus, once the court determines the appropriate number of life sentences to impose under the pre-September 2006 One Strike law, it then must exercise its discretion to determine whether to run such life sentences consecutively or concurrently. (§ 669; Cal. Rules of Court, rule 4.425; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [“[A]lthough the statutory language of [former] section 667.61, subdivision (b), mandates the imposition of 15 years to life for each count involving separate occasions and separate victims, section 667.61 does not mandate that those terms must be served consecutively”].)
It appears from our review of the record that the court sentenced defendant to a consecutive life sentence for each count (1, 2, 3, 7, 8, 9, 10, 11, 13) it deemed a “separate and distinct act at a separate time and place, ” and sentenced defendant to a concurrent life sentence for each count (4, 5, 6, 12, 14) that did not meet such criteria. This sentencing protocol did not comport with pre-September 2006 section 667.61 or Jones, supra, 25 Cal.4th 98. “Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Former § 667.61, subd. (g).)
Defendant must be resentenced pursuant to other applicable law (not the One Strike law) with regard to any offense that occurred on the same “occasion” as another offense upon which a One Strike life sentence has already been imposed (none of the counts here involved multiple victims on the same occasion). Based on the court’s findings at the sentencing hearing, such offenses may include counts 4, 5, 6, 12, and 14. Moreover, contrary to the court’s imposition of consecutive life sentences on both counts 9 and 10, the People concede that “the evidence established [counts 9 and 10] were committed in ‘close temporal and spatial proximity.’” Defendant also insists count 11 occurred on the same “occasion” as counts 9 and 10. As we are remanding for resentencing, we need not delve into the correctness of the court’s particular “occasion” findings at this time.
Finally, it is unclear from the transcript whether the court actually understood it had discretion to run life sentences imposed under the pre-September 2006 One Strike law either consecutively or concurrently. The court correctly sentenced defendant under the One Strike law to 15 years to life in prison on count one. It is also clear the court should impose additional life sentences under the One Strike law (given jury findings that support the existence of three different victims). But the existence of multiple sentencing errors merits a new sentencing hearing for most of defendant’s convictions. We therefore reverse defendant’s sentence as to counts 2 through 14 and remand for resentencing in accordance with this opinion.
Section 654 — Counts 9 and 10 (Jane Doe #2)
Finally, defendant claims the court should have stayed execution of sentence pursuant to section 654 with regard to count 9 because the conduct involved in count 9 merely facilitated count 10. The court did not explicitly analyze this issue on the record. For both counts 9 and 10, the court sentenced defendant to a consecutive term of 15 years to life.
According to the operative information, count 9 consisted of defendant touching Jane Doe #2’s vagina. Count 10 consisted of defendant penetrating Jane Doe #2’s vagina.
Jane Doe #2 testified at trial, which provided the evidentiary basis for defendant’s convictions on counts 9 and 10. Jane Doe #2 was lured into defendant’s home. Jane Doe #2 testified that defendant “put like a little cream in my front part.” Defendant put the cream “[o]n the skin” of Jane Doe #2’s vagina. On the “same day, ” defendant put his penis (“front part” with which “[h]e pee[s]”) into Jane Doe #3’s vagina (her “front part”). Jane Doe #2 identified herself and defendant in a video that was introduced into evidence; the video does not depict the conduct alleged in counts 9 and 10. On cross-examination, Jane Doe #2 added that defendant applied the “cream” to a “Q-tip” before putting the cream on the “skin” of her “private part.” When asked what happened after that, Jane Doe #2 responded: “He put his front part in mine.” “He just put it in and took it back out.” Jane Doe #2 turned around and left the house. In a pretrial interview, Jane Doe #2 called the substance that was put on her vagina by defendant “‘Vitacilina’ in Spanish, which is Vaseline.”
The prosecutor described the separate counts in her closing argument: “Count 9 is a separate count for putting the cream on her bare vagina. Count 10 is when he penetrated her vagina... she was clear about the defendant’s penis going inside her vagina.... [¶] [T]he cream has already been put on and the fingers have gone in, the penis pushing on that is going to cause a slight penetration, which is all that is required.”
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The statute “‘literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the “same act or omission.” [Citation.] However, ... its protection has been extended to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.”’” (People v. Hicks (1993) 6 Cal.4th 784, 789.) “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
This is not a “single act” case. Defendant applied the cream, then inserted his penis into Jane Doe #2’s vagina. As the People’s brief correctly points out, either act could constitute lewd conduct in its own right (even if the other act had never been performed). The question is whether the two acts, apparently performed in quick succession (the evidence does not address exactly how much time passed), were incident to a single intent and objective. Whether defendant had multiple criminal objectives is a factual question and its resolution will be upheld on appeal if supported by substantial evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Defendant asserts the only permissible inference from the record is that the application of cream or lubricant to Jane Doe #2’s vagina was incident to defendant’s single objective of penetrating Jane Doe #2’s vagina with his penis.
For unexplained reasons, count 10 was charged as lewd conduct rather than rape. But this charging decision does not change the fact that two divisible criminal acts occurred.
Our Supreme Court has specifically warned against defining a criminal objective so broadly as to encompass a string of separate crimes, particularly in the sex offense context: “Defendant asserts that the trial court properly found that his sole intent and objective was to obtain sexual gratification, and that since the evidence supports this finding, the trial court’s ruling must be upheld. We disagree. Such an intent and objective is much too broad and amorphous to determine the applicability of section 654.... To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552, fn. omitted (Perez); see also People v. Harrison (1989) 48 Cal.3d 321, 334-338 [multiple sex crimes against single victim during one course of assaultive conduct each have the separate criminal objective for purposes of § 654 analysis of achieving additional sexual gratification].)
But some “sex offenses [are] committed as a means of committing” other crimes or are “incidental to the commission” of other sex offenses. (Perez, supra, 23 Cal.3d at pp. 553-554.) For instance, in People v. Greer (1947) 30 Cal.2d 589, the court rejected the argument that the removal of the victim’s underwear prior to a rape could be punished separately as lewd conduct. (Id. at p. 604, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6, and People v. Pearson (1986) 42 Cal.3d 351, 357-358.)
We have been unable to find a case directly deciding the issue before us. However, in People v. Madera (1991) 231 Cal.App.3d 845 (Madera), the court stated in dicta: “In our view, section 654 applies where the undefined sex act directly facilitates or is merely incidental to the commission of a defined lewd act. [Citation.] For example, section 654 would bar separate punishment for applying lubricant to the area to be copulated. In such a situation, the commission of the undefined act would have directly facilitated the commission of the defined act.” (Id. at p. 855, italics added [holding defendant’s fondling of victim prior to oral copulation and sodomy was separately punishable as lewd conduct].)
We find the Madera dicta to be persuasive as a general matter. But the nature of the “intent and objective” test dictates that the important question is not what is true as a general matter, but rather what was in defendant’s mind when he committed the act. It is conceivable, in light of the entire record, that defendant satisfied a distinct wrongful objective by his application of the “cream” or lubricant, and such act was not intended as mere preparation for the objective of penetrating Jane Doe #3. As we have remanded the case for resentencing on counts 2 through 14, we invite the court to make an explicit finding as to whether any sentence imposed on count 9 should be stayed pursuant to section 654.
DISPOSITION
The judgment of conviction is affirmed, but the judgment is reversed as to defendant’s sentence on counts 2 through 14. The sentence as to counts 2 through 14 is vacated and the case remanded for resentencing.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.