People v. Lopez

76 Cal.App.5th 287

291 Cal.Rptr.3d 455

The PEOPLE, Plaintiff and Respondent,

v.Jose Antonio LOPEZ, Defendant and Appellant.

B317228

Court of Appeal, Second District, Division 7, California.

Filed March 14, 2022

Certified for Partial Publication.^*

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, and Lewis A. Martinez, Jennifer Oleska, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

Jose Antonio Lopez fled to Mexico after his two step-granddaughters accused him of sexually abusing them. Eight years later Lopez was arrested in California. A jury convicted Lopez on two counts of continuous sexual abuse of a child—one for each step-granddaughter—and the trial court sentenced him to two consecutive terms of 15 years to life.

Lopez contends that the delay in prosecution violated his rights to a speedy trial, that substantial evidence did not support either conviction, and that the court did not understand it had discretion to impose concurrent sentences on the two convictions. In the unpublished portion of the opinion, we conclude that the trial court did not violate Lopez's speedy trial rights and that substantial evidence supported his convictions. In the published portion, we conclude the trial court had discretion under Penal Code section 667.61, subdivisions (c) and (i),¹ to impose concurrent sentences. Therefore, we affirm the convictions on both counts of continuous sexual abuse of a child, vacate the sentences on those convictions, and direct the trial court to exercise its discretion whether to impose consecutive or concurrent sentences on those convictions.

FACTUAL AND PROCEDURAL BACKGROUND

A. Lopez Is Arrested Eight Years After His Step-granddaughters Accuse Him of Sexual Abuse

Karen R. is the mother of Daniela C. and Rebecca C. Lopez was Karen's stepfather and, thus, Daniela and Rebecca's step-grandfather. In February 2010 Karen reported to the Bakersfield Police Department that Lopez had sexually abused Daniela, who was eight years old at the time, and Rebecca, who was six. Officer Felipe Juarez interviewed Daniela and Rebecca, each of whom told the officer that Lopez had touched her vaginal area and buttocks.

On February 17, 2010 Karen made a "pretext call"—a call monitored by law enforcement and intended to elicit incriminating information—to Lopez, accusing him of abusing Daniela and Rebecca. Detectives Lance O'Nesky and Hector Caldas interviewed Lopez later that day and informed him of the nature of their investigation. Sometime between then and March 8, 2010, Lopez went to Mexico.

In April 2010 the People filed a complaint charging Lopez with two counts of continuous sexual abuse of a child under the age of 14, in violation of Penal Code section 288.5, subdivision (a) : count 1 for sexual abuse of Daniela and count 2 for sexual abuse of Rebecca. The superior court issued a warrant for Lopez's arrest.

Lopez was not arrested until August 6, 2018. On August 28, 2018 the People filed an information charging Lopez with the same two counts of continuous sexual abuse of a child. For each count, the People alleged Lopez committed an offense specified in section 667.61, subdivision (c) —which includes continuous sexual abuse of a child ( § 667.61, subd. (c)(9) )—against more than one victim (see id ., subd. (e)(4)).² Whether a true finding on that allegation required the court to impose consecutive terms is one of the issues in this appeal.

B. Lopez Files a Motion To Dismiss, Which the Trial Court Denies^**

C. The Family Testifies at Trial^***

D. The Jury Convicts Lopez, and the Trial Court Sentences Him

The jury convicted Lopez on both counts of continuous sexual abuse of a child and, for each count, found true the allegation Lopez committed an offense specified in section 667.61, subdivision (c), against more than one victim, within the meaning of section 667.61, subdivision (e)(4). The trial court sentenced Lopez to consecutive prison terms of 15 years to life. Lopez timely appealed.

DISCUSSION

A. The Trial Court Did Not Violate Lopez's Speedy Trial Rights^†

B. Substantial Evidence Supported Lopez's Convictions for Continuous Sexual Abuse of Daniela and Rebecca^††

C. Remand Is Appropriate for the Trial Court To Exercise Its Discretion Whether To Impose Consecutive or Concurrent Sentences

Lopez argues the trial court failed to recognize it had discretion to impose concurrent sentences on his two convictions. The court sentenced Lopez under the one strike law in section 667.61, which " ‘mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime [citation] and has also found certain factual allegations to be true.’ " ( People v. Carbajal (2013) 56 Cal.4th 521, 534, 155 Cal.Rptr.3d 335, 298 P.3d 835.) Section 667.61, subdivision (c), lists the crimes to which the one strike law generally applies. Continuous sexual abuse of a child in violation of section 288.5 is listed in section 667.61, subdivision (c)(9), as one of those crimes. The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61, subdivision (c). That provision is section 667.61, subdivision (i), which states: "For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), ... the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims ... as defined in subdivision (d) of Section 667.6." Lopez contends that, because section 667.61, subdivision (c), states the court must impose consecutive sentences for offenses listed in subdivision (c)(1) to (7), and continuous sexual abuse of a child is specified in subdivision (c)(9), the trial court had discretion to impose concurrent sentences on his convictions.

Lopez's interpretation of section 667.61 is correct. " ‘The expression of some things in a statute necessarily means the exclusion of other things not expressed.’ " ( Le Francois v. Goel (2005) 35 Cal.4th 1094, 1105, 29 Cal.Rptr.3d 249, 112 P.3d 636 ; accord, People v. Gollardo (2017) 17 Cal.App.5th 547, 557, 225 Cal.Rptr.3d 666.) Because section 667.61, subdivision (i), requires a trial court to impose consecutive sentences for certain offenses in section 667.61, subdivision (c) —namely, those listed in subdivision (c)(1) to (7)—it does not require the court to impose consecutive sentences for other offenses in the statute—namely, subdivision (c)(8) and (9). (See People v. Zaldana (2019) 43 Cal.App.5th 527, 536, 256 Cal.Rptr.3d 725 [because " section 288, subdivision (a) does not fall within [subdivision (c)(1)-(7)]—it is listed in section 667.61, subdivision (c)(8) — ... the court retains discretion to impose concurrent or consecutive 25-year-to-life terms for the three violations of section 288, subdivision (a)"], review granted Mar. 18, 2020, S259731.) Section 667.61, subdivision (i), "by implication leaves the decision to impose consecutive or concurrent terms" for the nonspecified offenses in section 667.61, subdivision (c), "to the sentencing court's discretion under section 669." ( People v. Valdez (2011) 193 Cal.App.4th 1515, 1524, 124 Cal.Rptr.3d 376 ; see People v. Bradford (1976) 17 Cal.3d 8, 20, 130 Cal.Rptr. 129, 549 P.2d 1225 [under section 669 "a trial court has discretion to determine whether several sentences are to run concurrently or consecutively"]; People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479-1480, 200 Cal.Rptr.3d 536 [where a statute "does not contain an express provision depriving the trial court of the discretion afforded to it in section 669," the trial court has "discretion to choose between concurrent and consecutive sentences"].) It's hard to imagine a clearer expression of legislative intent that the consecutive sentencing provision of section 667.61, subdivision (i), does not apply to all nine offenses listed in section 667.61, subdivision (c), than stating it only applies to seven of them. (See People v. Cook (2015) 60 Cal.4th 922, 935, 183 Cal.Rptr.3d 502, 342 P.3d 404 ["statutory language is the best indicator of the Legislature's intent"].)

The People ignore section 667.61, subdivision (i), entirely. Instead, they cite section 667.6, subdivision (d)(1), which provides: "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims ...." Section 667.6, subdivision (e), includes continuous sexual abuse of a child in violation of section 288.5. (See § 667.6, subd. (e)(6).) Therefore, according to the People, section 667.6 requires the court to impose consecutive sentences on multiple convictions for continuous sexual abuse of a child (presumably, regardless of what section 667.61 says).

The People's proposed interpretation of sections 667.6 and 667.61, however, renders section 667.61, subdivision (i), superfluous. When interpreting a statute, "we do not consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ... in order to determine the scope and purpose of the provision’ " at issue, and we "must harmonize ‘the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.’ " ( People v. Mendoza (2000) 23 Cal.4th 896, 907-908, 98 Cal.Rptr.2d 431, 4 P.3d 265 ; see People v. Hernandez (2021) 60 Cal.App.5th 94, 105, 274 Cal.Rptr.3d 188.) In so doing, "interpretations which render any part of a statute superfluous are to be avoided." ( Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1207, 48 Cal.Rptr.3d 108, 141 P.3d 225 ; ...