People v. Montes

1

THE PEOPLE, Plaintiff and Respondent, v. ERMILO GARCIA MONTES, Defendant and Appellant.

F078875

California Court of Appeals, Fifth District

July 30, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County Super Ct. No. BF173257A Charles R. Brehmer, Judge.

Christine Vento, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Nirav K. Desai, Deputy Attorneys, General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

Defendant Ermilo Garcia Montes stands convicted of three counts of lewd or lascivious acts committed against two victims under the age of 14 years: Penal Code section 288, subdivision (a) (section 288(a)), counts 1 and 2;^[1] section 288, subdivision (b)(1) (section 288(b)(1)), count 3.^[2] The jury also found true special allegations that these crimes were qualifying offenses under section 667.61, subdivision (c) (section 667.61(c)), of the One Strike law with a multiple-victim circumstance alleged as to each count under section 667.61 subdivision (e) (section 667.61(e)). Defendant was sentenced to three consecutive terms of 25 years to life under section 667.61, subdivision (j)(2) (section 667.61(j)(2)).

On appeal, defendant argued (1) the trial court failed to properly instruct on section 288(a) as a lesser included offense of count 3; (2) the court erred by failing to instruct the jury after the close of evidence under CALCRIM No. 220 on the prosecutor's burden of proof beyond a reasonable doubt; (3) the information did not provide defendant constitutionally sufficient notice of the 25-year-to-life sentence applicable to each of his convictions under the One Strike law because the charging document did not reference section 667.61(j)(2); and (4) that his inability-to-pay objection to the fines, penalties, and assessments imposed at sentencing was not properly considered, and the case should be remanded so that he may develop a record and present his inability-to-pay arguments under People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas) and section 290.3. We agreed with defendant as to his Duenas claim and remanded for a hearing on his ability to pay. In all other respects, the judgment was affirmed.

Defendant petitioned the California Supreme Court for review, which was granted on November 10, 2021. On May 15, 2024, our high court transferred the case back to this court with directions to vacate our decision and reconsider the cause in light of In re Vaquera (2024) 15 Cal.5th 706 (Vaquera). We provided the parties with an opportunity to file supplemental briefs, but neither party elected to do so. Having now reconsidered the matter under Vaquera, we conclude defendant's due process right to fair notice was prejudicially violated because defendant did not receive timely notice the prosecution was seeking the greater One Strike sentence under section 667.61(j)(2) with respect to each count. As before, we reject defendant's instructional challenges. Finally, we remand for resentencing so that defendant may present his inability-to-pay claims for the trial court's consideration.

FACTUAL SUMMARY^[3]

Jane 1 and Jane 2, both minors under the age of 14 years at the time of the offenses, accused defendant, their mother's live-in boyfriend, of touching them inappropriately. The girls' mother called the police on May 18, 2018, and Kern County Sheriff's Deputies responded around 11:00 p.m. Once at the house, deputies recorded separate interviews with defendant and the girls.

Both girls told the interviewing deputy that defendant had touched them on several occasions. Jane 1 indicated defendant had touched her "boobs" and her vaginal area, both on top of and underneath her clothing. Jane 2 reported he had touched her "upper chest" through her clothing on several occasions, beginning the previous year and ending a few weeks before the deputy questioned her.

Defendant told the interviewing deputy he was aware of what the girls were complaining about, but he denied touching them sexually or inappropriately. Defendant described how the girls had touched his penis on occasions when they slept in the same bed with their mother and defendant. Defendant admitted Jane 2 had given him a note, which asked him to stop touching them, but he did not understand the note because he had never touched them, and he ripped up the note because it "wasn't important."

Jane 1 and Jane 2 were interviewed by a social worker on May 23, 2018, in recorded sessions, and the girls gave generally consistent statements about how defendant had touched them inappropriately. Thereafter, defendant was charged with three counts of lewd or lascivious acts committed against a child under the age of 14 years pursuant to section 288. Count 1 related to Jane 2, and alleged a nonforcible lewd or lascivious act under section 288(a); count 2 related to Jane 1, and alleged a nonforcible lewd or lascivious act under section 288(a); count 3 related to Jane 1, and alleged a forcible lewd or lascivious act under section 288(b)(1). Special allegations under the One Strike law accompanied each count, alleging defendant had committed qualifying offenses under section 667.61(c) with multiple victims within the meaning of section 667.61(e).

At defendant's trial in January 2019, the recorded interviews of Jane 1 and Jane 2 conducted with the deputies and with the social worker were played for the jury, as was defendant's recorded interview with a deputy. Jane 1 and Jane 2 also testified. Jane 1 testified defendant had touched her boobs, squeezed them and licked them, and put his fingers into her vagina. In another incident, he showed her his "private parts," which he made her touch underneath his clothing. She saw his penis, and he made her squeeze it and made her mouth touch it by pushing her head down. Jane 1 demonstrated what he had done by putting her left hand on the back of her head and pushing it forward.

Jane 2 identified defendant as her stepdad and that he had lived with them. She testified defendant had touched her inappropriately about five times when she was 10 years old. He used to call her to his room so he could touch her. During at least one of those times, he touched her breasts over her clothing. She eventually found out defendant was touching Jane 1, too. Before Jane 2 told her mom, she and Jane 1 wrote a letter to defendant telling him to stop doing those things and to start respecting them. When the girls gave the letter to defendant, he just smiled and laughed and did not pay attention. He touched Jane 2 again after they wrote the letter to him. The girls later separately told their mother what was happening.

The prosecution called the interviewing deputies to testify as well as the lead investigating deputy. The girls' mother also testified about how and when the girls told her about defendant touching them, and why and how long she delayed before contacting the police. Defendant did not testify or present any evidence at trial.

The jury convicted defendant on all three counts and found true the multiplevictim circumstance allegations under the One Strike law. The court sentenced defendant to three consecutive 25-year-to-life terms under section 667.61(j)(2), and imposed various fines, fees and assessments. Defendant now appeals.

DISCUSSION

I. No Error in Instructing on Lesser Included Offense of Count 3

As to count 3, forcible lewd or lascivious act with a child under the age of 14 years (§ 288(b)(1)), defendant argues the trial court failed to properly instruct on the requested lesser included offense under section 288(a), which violated his federal constitutional rights.

The People dispute the court had any sua sponte duty to instruct on section 288(a) as a lesser included offense of count 3 because there was no evidence force had not been used to accomplish the lewd or lascivious act. But, even if the court had a sua sponte duty to instruct on this lesser offense, the People argue the court properly instructed on the lesser offense and defendant forfeited any contention to the contrary by failing to object or to seek an amplifying instruction.

A. Background

Count 3 alleged a forcible lewd or lascivious act under section 288(b)(1) as to Jane 1. Section 288(b)(1) is violated when a person commits an act described in section 288(a) by the "use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ._" (§ 288(b)(1).) Here, the prosecutor relied on a single use of force for count 3: defendant pushed the victim's head to his penis so that she would put her mouth on it.

1. Instruction Conference

The court discussed jury instructions with counsel after the close of evidence. The court observed that a nonforcible lewd or lascivious act offense under section 288(a) was a lesser included offense of count 3 (forcible lewd or lascivious acts), but the prosecutor argued there was no basis to instruct on the lesser included offense. Defense counsel requested lesser included offense instructions for count 3: nonforcible lewd or lascivious acts under section 288(a) and an attempted nonforcible lewd or lascivious act under section 288(a). The prosecutor argued there were no facts to suggest or support either of the lesser included offenses for count 3. The court indicated it would instruct on the lesser included offense of attempted lewd or lascivious act, and informed counsel the issue would be revisited later that afternoon.

At a conference later in the day, the court informed counsel pattern instruction CALCRIM No. 3517 would be given, which...