Filed 12/11/13 P. v. Brewer CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039051
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC962809)

         v.

ALEXANDER MANUEL BREWER,

         Defendant and Appellant.



         A jury convicted defendant Alexander Manuel Brewer on one count of sexual
penetration with a child 10 years of age or younger, and two counts of a lewd or
lascivious act on a child. (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)1 The trial court
sentenced defendant to a term of 15 years to life, consecutive to two concurrent three-
year terms.
         On appeal, defendant contends the trial court erred in denying his motion to
dismiss for vindictive prosecution. We find defendant’s claim without merit, and we will
affirm the judgment.




         1
             Subsequent undesignated statutory references are to the Penal Code.
                         FACTUAL AND PROCEDURAL BACKGROUND
       A. Pretrial Proceedings
       On December 4, 2009, the prosecutor charged defendant with two counts of a
lewd or lascivious act on a child for molesting his two half sisters: nine-year-old M. Doe,
and five-year-old C. Doe. (§ 288, subd. (a).) The complaint also alleged multiple victims
under the “One Strike” law. (§ 667.61, subds. (b), (e).) In exchange for dismissal of the
strike allegation and one count of a lewd act, defendant pleaded no contest to lewd or
lascivious act on a child and continuous sexual abuse of a child. In exchange, he received
a stipulated term of 24 years. (§§ 288, subd. (a), 288.5, subd. (a).)
       Before sentencing, the parties and the court determined that the 24-year term was
unlawful under the applicable statutes, and that the maximum term was 18 years.
Defendant’s retained counsel moved to withdraw his plea.2 The trial court granted the
motion, set aside the plea, and reinstated the complaint.
       At the start of the second preliminary hearing on June 28, 2011, the prosecutor
announced her intent to amend the complaint to add two counts: sexual penetration of a
child, and a third lewd or lascivious act on a child. The prosecutor had previously
provided defendant with the amended complaint. After the victims and their mother
testified, the parties agreed to continue the preliminary hearing for the purpose of
discussing settlement.
       When the hearing resumed on July 14, 2011, the prosecutor announced she had
made an offer of 18 years in exchange for a plea to three counts of a lewd or lascivious
act on a child and one count of a lewd or lascivious act on a child by force. (§ 288,
subds. (a) & (b).) Defendant personally rejected the offer on the record. At the


       2
         Defendant’s moving papers suggest the parties agreed to the 18-year term before
he moved to withdraw his plea. Defendant raises no claims of ineffective assistance of
counsel; any such claims would have to be brought separately by writ and are not before
this court in this appeal.
                                              2
conclusion of the hearing, the court held defendant to answer on all four counts in the
amended complaint. The prosecution filed the information on July 21, 2011.
       On November 17, 2011, defendant, arguing vindictive prosecution, moved for
dismissal of the charge of sexual penetration of a child. The trial court denied the
motion, and the case proceeded to trial.
       B. Trial and Sentencing
       M. Doe, defendant’s half sister, testified that she lived in the same house as
defendant when she was nine, along with her younger sister, C. M. testified that
defendant touched her vagina and buttocks with his hands and penis. The first time he
did so was around Christmas 2008, at night. She testified that defendant did this more
than ten times. M. testified defendant used his finger to penetrate her vagina on multiple
occasions and that it caused her pain.
       C. Doe, eight years old at the time of trial, testified that defendant touched her
“flower,” or vagina, with his hand while she was asleep at night. She told her mother the
next morning, but C. said she thought it was a dream.
       Defendant testified in his defense. He admitted he touched M.’s vagina on three
occasions while he was “buzzed” on alcohol. He denied penetrating her vagina with his
finger or penis. He testified that he never molested C.
       On May 10, 2012, the jury found defendant guilty on Count One (sexual
penetration with a child [M.]) and Counts Two and Three (lewd or lascivious act on a
child [M.]). The jury hung on Count Four (lewd or lascivious act on a child [C.]), and the
trial court declared a mistrial on that count. The trial court sentenced defendant to a term
of 15 years to life for Count One, consecutive to two three-year terms for each of Counts
Two and Three, to run concurrently. The prosecution dismissed Count Four.

                                           DISCUSSION



                                              3
       Defendant contends the prosecutor engaged in vindictive prosecution when it
amended the complaint to add Count One (sexual penetration with a child) following his
successful plea withdrawal. The Attorney General contends the record is inadequate to
support review of this claim because the record contains no transcript of the hearing and
no record of the trial court’s denial of the motion. Alternatively, the Attorney General
argues defendant has failed to establish any vindictive motive or presumption of
vindictiveness.
       A. Forfeiture of the Claim
       As an initial matter, we consider whether defendant has adequately preserved his
claim for review. The Attorney General contends the record shows no denial of
defendant’s motion to dismiss for vindictive prosecution. We disagree. Defendant filed
a written motion on November 17, 2011, and the prosecution replied in writing on
December 2, 2011. The parties’ papers noticed a hearing set for December 9, 2011, to be
held in Department 31. The record shows minutes of a hearing held on that date in
Department 31 on a motion to dismiss, which the court denied. Although the clerk
identified the motion as coming under section 995, the record shows no other motion to
dismiss. These minutes therefore appear to document the hearing on and dismissal of
defendant’s motion to dismiss for vindictive prosecution.
       The Attorney General also contends we must reject defendant’s claim because the
record holds no transcript of the hearing. Defendant bases his appellate claim—as he did
his motion below—solely on the procedural history, the facts set forth at the preliminary
hearing, and the law. However, the Attorney General is correct that, absent a transcript,
we cannot know what findings the trial court made, factual or otherwise. (See Sea Horse
Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 452 [criticizing failure of
defendant to provide transcript of hearing in writ proceeding].) Defendant’s claim fails
on that ground alone. Nonetheless, even considering the merits of defendant’s arguments
on the record here, we reject his claim for the reasons below.
                                             4
       B. Merits of the Claim
       On this record, defendant’s claim fails because he cannot establish a presumption
of vindictiveness, and he presents no evidence to support it. 3
       Defendant’s reliance on the case law in support of a presumption of vindictiveness
is misplaced. In Twiggs v. Superior Court (1983) 34 Cal.3d 360, and In re Bower (1985)
38 Cal.3d 865, the California Supreme Court considered claims of vindictive prosecution
where the prosecutor increased the severity of charges following a defendant’s assertion
of his right to retrial following a mistrial. In that situation, the high court held, a
defendant can establish a presumption of vindictiveness, whereupon the burden shifts to
the prosecution to rebut the presumption. (Twiggs v. Superior Court, supra, at p. 371.)
       Here, by contrast, the prosecutor added the charge of sexual penetration with a
child before defendant went to trial. Defendant argues nonetheless that In re Bower
supports his claim that, as a matter of law, the prosecution should be barred from
increasing the severity of his charges following his exercise of his right to withdraw his
plea. Defendant cites no case supporting this proposition. To the contrary, the cases
defendant cites are explicitly confined to the addition of charges after jeopardy attaches.
The timing of the prosecutor’s action is important because “[a] prosecutor should remain
free before trial to exercise the broad discretion entrusted to him to determine the extent
of the societal interest in prosecution. An initial decision should not freeze future
conduct. As we made clear in Bodenkircher, the initial charges filed by a prosecutor may

       3
         Based on the trial court’s denial of the motion, together with defendant’s failure
to obtain a transcript of the hearing, we will infer that the court made no findings that
supported his motion. We note that California courts have not set forth a standard of
review for an appeal from a denial of a motion to dismiss for vindictive prosecution.
(See People v. Ayala (2000) 23 Cal.4th 225, 299 [rejecting defendant’s claim of
vindictive prosecution “under any standard of review”].) This court has applied a
substantial evidence standard of review to factual findings supporting a denial of a
motion to dismiss for vindictive prosecution. (People v. Puentes (2010) 190 Cal.App.4th
1480, 1487.) However, the record here contains no factual findings pertaining to the
motion.
                                               5
not reflect the extent to which an individual is legitimately subject to prosecution. [Fn.
omitted.]” (United States v. Goodwin (1982) 457 U.S. 368, 382.)
        This court’s holding in People v. Hudson (1989) 210 Cal.App.3d 784, is squarely
on point. There, the defendant pleaded guilty to misdemeanor charges and subsequently
moved to withdraw her plea, whereupon the case was set for trial. (Id. at p. 785.) The
prosecutor then amended the complaint to add felony charges. Hudson argued the added
charges constituted vindictive prosecution following her exercise of her right to withdraw
her plea. This court held “it was insufficient to warrant the application of a presumption
that the more serious charges were filed in retaliation for respondent’s exercise of her
constitutional rights. As in the cases involving pretrial situations, for this court to hold
otherwise would significantly abridge prosecutorial charging discretion in a fashion
inconsistent with statutory authority.” (Id. at p. 788.) Defendant here is likewise not
entitled to a presumption of vindictiveness based solely upon a showing that the
prosecutor increased the severity of the charges following the withdrawal of his plea but
prior to trial.
        Nor has defendant made any showing of vindictiveness based on the facts in the
record. Defendant’s sole argument in this regard is that one of the victims, testifying at
the second preliminary hearing on June 28, 2011, recanted her prior statement that
defendant had sexually penetrated her. The prosecution then introduced the victim’s
prior statement that defendant had penetrated her. Defendant asserts that the evidence
supporting the charge of sexual penetration was actually weaker after the second
preliminary hearing, and that vindictiveness is therefore the only explanation for the
subsequent addition of that charge to the complaint.
        This argument does not comport with the timing of events as shown by the record.
The prosecutor announced her intent to amend the complaint—and provided defense
counsel with a copy of the complaint—before the victim’s testimony at the second
preliminary hearing. Furthermore, before the hearing resumed on July 14, 2011, the
                                               6
prosecutor offered a plea bargain of 18 years—substantially less severe than defendant’s
initial settlement—in exchange for a disposition that did not include a plea to the charge
of sexual penetration. Defendant personally rejected the offer, despite being fully aware
of the charges to which he would be held to answer at that time.
       Defendant’s claim of vindictiveness is not supported by the prosecutor’s actions
here, and he is not entitled to such a presumption. We find his claim without merit.




                                             7
                              I. DISPOSITION
The judgment is affirmed.




                            _______________________________
                            Márquez, J.




WE CONCUR:




____________________________________________
 Bamattre-Manoukian, Acting P. J.




______________________________
 Grover, J.
