Filed 3/17/16 P. v. Williams CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069088

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF1202977)

MELBROUGH WILLIAMS, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside,

Michael J. Rushton, Judge. Affirmed in part; reversed in part; remanded for

resentencing.

         Allison H. Ting, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.
                                              I.

                                     INTRODUCTION

       A jury found Melbrough Williams guilty of a series of sexual offenses committed

against two women. The jury also found true various One Strike law (Pen. Code,

§ 667.61)1 sentencing allegations. On appeal, Williams claims that the trial court erred

in failing to sanitize evidence pertaining to an incident involving uncharged sexual

offenses that the People introduced pursuant to Evidence Code section 1108.

Specifically, Williams contends that the trial court erred in denying his request to

preclude the People from presenting evidence that the victim of the uncharged offenses

was 14 years old. Williams also claims that in sentencing him on two of the counts, the

trial court erred in failing to apply the version of the One Strike law in effect at the time

Williams committed those offenses. We reject Williams's evidentiary claim, but agree

with his sentencing contention. We affirm Williams's convictions and remand for

resentencing.2

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Procedural background

       The People charged Williams with six counts of forcible rape (counts 1-2, 7-9, 11)

(§ 261, subd. (a)(2)), two counts of forcible oral copulation (counts 3, 12) (§ 288a, subd.

1      All subsequent statutory references are to the Penal Code, unless otherwise
specified.
2      We also direct the trial court to make various corrections to the abstract of
judgment after the court resentences Williams on remand.
                                               2
(c)(2)), one count of forcible penetration (count 4) (§ 289, subd. (a)(1)(A)), two counts of

robbery (counts 5, 10) (§ 211), and one count of kidnapping with intent to commit a

sexual offense (count 6) (§ 209, subd. (b)(1)).3 The People alleged that Williams

committed counts 1 through 4, 9, 11 and 12 during a burglary (§ 667.61, subd. (d)(4)) and

that Williams kidnapped the victim during the commission of counts 7 and 8 (§ 667.61,

subd. (d)(2)). The People further alleged in counts 1 through 4, 7 through 9, 11 and 12,

multiple victim allegations pursuant to the One Strike law (§ 667.61, subd. (e)(4), former

§ 667.61, subd. (e)(5)).4

       A jury found Williams guilty of counts 1, 2, and 4 through 8. The jury found true

the multiple victim allegations attached to counts 1, 2, 4, 7, and 8 as well as the

kidnapping allegations attached to counts 7 and 8. The jury found not true the burglary

allegations in counts 1, 2, and 4. The jury was unable to reach verdicts on count 3 and

counts 9 through 12.

       The court sentenced Williams to an aggregate term of 100 years to life in prison,

consisting of the upper term of 5 years on count 5; 25 years to life on counts 7 and 8; and

15 years to life on counts 1, 2 and 4; all to be served consecutively. On count 6, the court

imposed a sentence of 7 years to life in prison, but stayed execution of the sentence




3      The People alleged that Williams committed counts 1 through 5 against E.B. in
2012, counts 6 through 8 against S.M. in 2002, counts 9 and 10 against A.H. in 2011,
and counts 11 and 12 against A.F. in 2012.
4      In 2002, at the time Williams committed the offenses in counts 7 and 8, this
allegation was contained in former section 667.61, subdivision (e)(5).
                                              3
pursuant to section 654. At the People's request, the court dismissed count 3 and counts 9

through 12.

B.    Factual background

      1.      The People's evidence5

              a.    Williams's sexual assault of S.M.

      At around midnight on October 27, 2002, a car pulled over near where 19-year-old

 S.M. was walking along the street while working as a prostitute. The driver, a Hispanic

 male, told S.M. that he wanted a "date." Shortly thereafter, S.M. walked over to the car

 and got into the front passenger seat.

      After a couple of minutes, a second man, later identified as Williams, opened the

 passenger door, entered the car, grabbed S.M. by the neck, and shoved her into the back

 seat. S.M. tried to get out of the car, but the Hispanic man locked all of the doors.

 Williams pushed S.M. onto the floor of the back seat of the car and held her there.

 Williams also took S.M.'s cell phone.

      The Hispanic man began to drive the car. S.M. could not see where they were

 going, but she believed that they were on a freeway. S.M. began screaming, crying, and

 yelling. After approximately an hour, the car pulled into a garage of a residence.

      Williams ordered S.M. out of the car, told her to enter the house, took her upstairs

 to a bedroom, and directed her to take off her clothes and get into the bathtub. Williams



5      We do not discuss the evidence related to the counts involving A.H. and A.F., on
which the jury was unable to reach a verdict, because the evidence pertaining to those
counts is not material to our resolution of the issues on appeal.
                                             4
handed S.M. a razor and instructed her to take a bath and shave her pubic hair. After

she did so, Williams told S.M. to go into the bedroom and get on the bed. Williams

told S.M. that he would let her go the following day if she would have sex with him.

S.M. was crying and told Williams that she did not want to have sex with him. She

then begged him to put on a condom. Williams retrieved a condom and proceeded to

rape her.

     At some point during the time that the group was in the house, the Hispanic man

left and later returned with food from a fast food restaurant. After the rape, Williams

and S.M. went downstairs and ate the food with the Hispanic man. After eating,

Williams took S.M. back upstairs and raped her two more times.

     When Williams fell asleep just before daylight, S.M. got out of the bed, wrapped

herself in a towel, grabbed her purse, and sneaked out of the residence. She ran to a

house a short distance away, spoke to the residents, and used the phone at that residence

to call police.

             b.    Williams's sexual assault of E.B.

      On May 29, 2012, 24-year-old E.B. was working as a prostitute. That night,

Williams responded to her advertisement on a website offering escort services and

went to her motel room.

      Williams gave E.B. $120 for a half-hour of her services. E.B. put the money in

her purse, and put the purse in a dresser drawer. Williams took off his clothes and

E.B. took off everything but her underwear. E.B. put a condom on Williams's penis,

massaged him, and gave him a "hand job." Williams asked E.B. to have sex. E.B.

                                           5
told Williams that he would have to pay additional money in order to have sexual

intercourse. Williams became angry and asked for his money back. E.B. told him that

she did not give refunds. Williams began to get dressed.

     Just after getting dressed, Williams told E.B. that there was a condom under the

sink. As E.B. went to pick up the condom and throw it away, Williams shoved her

and pulled out a gun. Williams ordered E.B. to get into the bathtub. E.B. became so

terrified that she urinated on the floor. E.B. told Williams that he could do what he

wanted with her if he did not kill her, including having sex with her without a

condom.

     Williams told E.B. to go to the sink, face the mirror, and lift her leg up. E.B.

complied and Williams raped her. Williams then ordered E.B. to lie on the bed.

After E.B. did so, Williams raped her again. Williams next ordered E.B. to get on her

knees. For five or six minutes, Williams orally copulated E.B. and placed his fingers

in her vagina, before raping her again.

     After Williams ejaculated, he put his clothes on. Williams found the $120 he

had given E.B and took it. Williams told E.B. not to call anyone and said that he

would be back because he liked her a lot. Williams also told E.B. that she had better

warn her pimp to stay away from him or he would shoot the pimp in the head. After

making these statements, Williams left. E.B. reported the incident to the police.

     During the ensuing investigation, police determined that Williams was a

major contributor of DNA to sperm found on E.B.'s exterior genitalia.



                                           6
            c.     Williams's uncharged robbery of A.M.

      A few years before the trial, A.M. was working as a prostitute. One night,

Williams contacted A.M., came to her motel room, and paid her approximately $100

for sex. Williams returned the following day, placed some money on a counter, and

again had sex with A.M. After they had sex, Williams held a handgun to A.M.'s head

and asked her where she kept her money. A.M. told Williams where her purse was.

Williams stole A.M.'s phone, approximately $200, and the money that he had placed

on the counter for her services that day. Police later recovered A.M.'s phone in

Williams's car.

            d.     Williams's uncharged sexual assault of K.H. in 2011

    As discussed in detail in part III.A, post, the People presented evidence that

Williams committed a sexual assault on K.H. in 2011, during which he committed a

rape under color of authority (§ 261, subd. (a)(7)) and also committed lewd and

lascivious conduct on a 14 or 15 year old (§ 288, subd. (c)(1)).

     2.     The defense

    Williams testified in his own defense. He admitted hiring S.M. and E.B. for

sexual services and engaging in sexual activity with them, but denied raping either

woman. Williams also admitted hiring K.H. for sexual services, and having sex with

her, but denied raping her. Williams denied having ever met A.M.




                                           7
                                               III.

                                        DISCUSSION

A.     The trial court did not abuse its discretion in denying Williams's request to
       preclude the People from presenting evidence that K.H. was 14 years old at the
       time of the commission of the uncharged sexual offenses

       Williams claims that the trial court erred in failing to sanitize Evidence Code

section 1108 evidence pertaining to an incident involving uncharged sexual offenses that

Williams allegedly committed against K.H. Williams maintains that the trial court erred,

under Evidence Code section 352, in denying his request to preclude the People from

presenting evidence that K.H. was 14 years old at the time of the commission of the

uncharged crimes. We apply the abuse of discretion standard of review to Williams's

claim. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 991 ["A challenge to

admission of prior sexual misconduct under Evidence Code sections 1108 and 352 is

reviewed under the deferential abuse of discretion standard"].)

       1.      Governing law

               a.     The statutory scheme

       Evidence Code section 1108 provides in relevant part:

            "(a) In a criminal action in which the defendant is accused of a
            sexual offense, evidence of the defendant's commission of another
            sexual offense or offenses is not made inadmissible by [Evidence
            Code] Section 1101,[6] if the evidence is not inadmissible pursuant
            to [Evidence Code] Section 352.


6       Evidence Code section 1101 provides in relevant part: "(a) Except as provided in
this section and in Section[ ] . . . 1108 . . . , evidence of a person's character or a trait of
                                                8
          "[¶] . . . [¶]

          "(d) As used in this section, the following definitions shall apply:

          "(1) 'Sexual offense' means a crime under the law of a state or of the
          United States that involved any of the following:

          "(A) Any conduct proscribed by Section . . . 261, . . . 288 . . . of the
          Penal Code."

       Section 261, subdivision (a)(7) defines the crime of rape under color of authority.7

Section 288, subdivision (c)(1) defines the crime of lewd and lascivious acts against a

child 14 or 15 years old.8



his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion."
7       Section 261 provides in relevant part:
          "(a) Rape is an act of sexual intercourse accomplished with a person
          not the spouse of the perpetrator, under any of the following
          circumstances:
          "[¶] . . . [¶]
          "(7) Where the act is accomplished against the victim's will by
          threatening to use the authority of a public official to incarcerate,
          arrest, or deport the victim or another, and the victim has a
          reasonable belief that the perpetrator is a public official."
8      Section 288 provides in relevant part:
          "(a) . . . [A]ny person who willfully and lewdly commits any lewd or
          lascivious act, including any of the acts constituting other crimes
          provided for in Part 1, 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 and shall be
          punished . . . .
          "[¶] . . . [¶]

                                              9
       Evidence Code section 352 provides:

          "The court in its discretion may exclude evidence if its probative
          value is substantially outweighed by the probability that its
          admission will (a) necessitate undue consumption of time or
          (b) create substantial danger of undue prejudice, of confusing the
          issues, or of misleading the jury."

              b.     Relevant case law

       In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court

described the factors that a trial court should consider in determining whether to exclude

evidence of an uncharged offense that is otherwise admissible pursuant to Evidence Code

section 1108, pursuant to Evidence Code section 352:

          "[T]rial judges must consider such factors as its nature, relevance,
          and possible remoteness, the degree of certainty of its commission
          and the likelihood of confusing, misleading, or distracting the jurors
          from their main inquiry, its similarity to the charged offense, its
          likely prejudicial impact on the jurors, the burden on the defendant
          in defending against the uncharged offense, and the availability of
          less prejudicial alternatives to its outright admission, such as
          admitting some but not all of the defendant's other sex offenses, or
          excluding irrelevant though inflammatory details surrounding the
          offense." (Falsetta, supra, at p. 917.)

       The Falsetta court explained that "the probative value of 'other crimes' evidence is

increased by the relative similarity between the charged and uncharged offenses, the

close proximity in time of the offenses, and the independent sources of evidence (the

victims) in each offense." (Falsetta, supra, 21 Cal.4th at p. 917.)


          "(c) [¶] (1) Any person who commits an act described in
          subdivision (a) with the intent described in that subdivision, and the
          victim is a child of 14 or 15 years, and that person is at least 10 years
          older than the child, is guilty of a public offense and shall be
          punished . . . ."
                                             10
       A trial court need not expressly refer to all of the Falsetta factors in considering

whether to exclude evidence pursuant to Evidence Code section 352. (People v. Villatoro

(2012) 54 Cal.4th 1152, 1168 [" '[W]e are willing to infer an implicit weighing by the

trial court on the basis of record indications well short of an express statement' "].)

       2.      Factual and procedural background

               a.     The People's motion to introduce Williams's commission of
                      uncharged sexual offenses against K.H. pursuant to Evidence Code
                      section 1108

       Prior to the trial, the People filed a motion in limine seeking permission to present

evidence of Williams's commission of a number of uncharged crimes against several

different women, including K.H. With respect to K.H., the People contended that

Williams had raped K.H. while she was 14 years old and working as a prostitute. The

People described the alleged incident as follows:

            "[Williams] called [K.H.] before coming to her hotel room and set
            up an appointment to receive prostitution services. When he arrived
            he spoke to her about how he knew that she was young and that he
            knew she was a prostitute. [Williams] then pretended to be a police
            officer. He pulled [out] some form of police identification. He also
            had a gun. After seeing both the police badge and the gun [K.H.]
            was told that if she did not have sex she would be arrested. If she
            had sex with him, she would be allowed to go free. [Williams] then
            vaginally raped [K.H.]. After raping her, [Williams] ordered her
            into the shower and watched to make sure that [she] cleaned
            adequately. [Williams] then left the hotel room."

       The People stated that K.H. reported the incident to the police on the day of the

incident after they responded to her motel room, due to an anonymous call reporting a

minor being involved in prostitution. The People also noted that Williams's DNA was

found on a swab taken from K.H. during a sexual assault examination. The People

                                              11
claimed that evidence pertaining to the alleged incident was admissible pursuant to

Evidence Code section 1108.

              b.      The hearing on the motion

       During a pretrial hearing on the People's motion, defense counsel argued that the

court should exclude evidence of the incident involving K.H. pursuant to Evidence Code

section 352. Defense counsel argued that evidence pertaining to the incident was

extremely prejudicial because K.H. was a minor at the time. The prosecutor argued that

the evidence was "uniquely probative" in that K.H was "only the second person who will

be present in court where DNA links the defendant to the crime." The prosecutor also

argued that evidence of the incident was probative because in the course of committing

the offenses against K.H., Williams displayed a form of identification that she believed

demonstrated that he was a police officer.

       The trial court ruled that evidence pertaining to the incident involving K.H. would

be admissible at trial, reasoning in part:

           "[I]n the court's view, it is prejudicial, but it's prejudicial because
           there seems to be strong evidence that he had sex with a person who
           was held out to be a prostitute.

           "I have no reason to believe that he knew what her age was. I
           haven't seen her. I don't know how young or old she looks. And so
           the only thing that [defense counsel] is really pointing at is because
           she is a minor, and because she is a minor that changes the whole
           configuration of the case.

           "And although I do agree that it aggravates his behavior, I don't
           believe it does so in a way that is inappropriate under the law or that
           will create a danger of undue prejudice, confusing the issues, or
           misleading the jury. And I do not think that it will result in an undue
           consumption of time. It's hard to imagine what might fall within the

                                             12
          scope of [Evidence Code section] 1108 more specifically than
          something like this which is very similar sexual behavior involving
          another victim. And there is an age difference.

          "But that's I don't think enough to exclude it under [Evidence Code
          section] 352 given that it is highly probative. And I don't think that
          that probative value is substantially outweighed by the probability of
          this undue or unfair prejudice."

       Immediately after the trial court issued its ruling, defense counsel requested that

the court "sanitize [the evidence] by not allowing the age of the victim to come into

play." In support of this contention, defense counsel argued that K.H.'s age was "really

not relevant to the case but, rather, the conduct is relevant but not the age."

       The prosecutor argued that K.H.'s age was relevant because one of the ways in

which Williams's conduct with K.H. constituted a qualifying sexual offense was premised

on her age.9 The prosecutor also suggested that K.H.'s age was relevant because

Williams preyed on her naivety in falsely claiming to be a police officer in order to rape

her.

       The trial court clarified that one of the prosecutor's arguments for admitting

evidence pertaining to K.H.'s age was that that one of the qualifying sexual offenses

required proof of K.H.'s age. The court proceeded to deny defense counsel's request to

sanitize the uncharged offense evidence, reasoning:




9      Although not expressly mentioned by the prosecutor, it is clear that the prosecutor
was referring to section 288, subdivision (c), which defines the crime of lewd and
lascivious conduct against a 14 or 15 year old.
                                              13
          "I think that that is a compelling argument by the People.

          "In addition, it is the truth of what's happened. And in the Court's
          view, what [Evidence Code section] 1108 is telling us is that if a
          person has a sexual predilection to engage in deviant behavior, then
          we're going to let the jury hear about all of that deviant behavior so
          long as it doesn't contravene [Evidence Code section] 352.

          "And so there seems to be, when you add this into it, what [Evidence
          Code section] 1108 seems to be interested in, which is sort of an
          indiscriminate taste in inappropriate sexual activity because it
          doesn't say the same kind of sexual activity under 1108. . . . The
          [Evidence Code section] 1108 could be . . . [section] 288,
          [subdivision] (c).

          "So the Court does not find that argument compelling. And although
          I agree that I in theory would have the power or authority to do that,
          I am choosing not to take that step."

       During a subsequent pretrial hearing, the trial court heard additional argument

from both parties concerning whether to preclude the People from introducing evidence

of K.H.'s age at trial. During this argument, the court asked the prosecutor whether he

was "saying this is admissible under [Evidence Code section] 1108 not just because . . . it

was a rape, as the victim alleges, but because even if it were consensual, it would be a

violation of [section] 288 [subdivision] (c)?" The prosecutor responded in the

affirmative. The court also asked the prosecutor, "Is your argument, in part, going to be

that he capitalized and took advantage of her young age in order to secure having sex

with her?" The prosecutor again responded in the affirmative. The court then reaffirmed

its prior ruling that the People would be permitted to present evidence of the incident

involving K.H., including evidence of K.H.'s age at the time of the uncharged offenses

committed against her.


                                            14
                 c.   Evidence pertaining to Williams's commission of uncharged
                      sexual offenses against K.H.

       K.H. testified that in December 2011, she was 14 years old, working as a

prostitute, and living in a motel.10 K.H. posted advertisements on the Internet, soliciting

clients for her prostitution services. In the advertisements, K.H. listed her age as 20 years

old.

       On December 31, 2011, Williams responded to one of K.H.'s advertisements and

came to her motel room. Williams asked K.H. how old she was. K.H. lied and said she

was 18 years old. K.H. explained that she lied, "So I could make the money. He

wouldn't think he was sleeping with a minor."

       After K.H. told Williams that she was 18, Williams pulled out a badge, flashed a

small gun, and told K.H. that he was an undercover police officer. Williams said that

there were other police officers in the parking lot.

       K.H. was scared. She told Williams that she was 17 years old, started crying, and

said that Williams should arrest her. Williams responded, "I'm not going to arrest you.

I'm going to 'F[uck]' you." K.H. said, "No," and again told Williams to arrest her.

Williams then raped K.H. After the rape, Williams watched K.H. take a shower and then

left the room.

       Shortly thereafter, police officers came to the motel room and asked K.H. why she

was there. K.H. told the officers that they should already know. The officers explained




10     K.H. testified that she was 17 at the time of the trial.
                                              15
that they were the only officers at the scene. K.H. described the incident with Williams

to the officers. The officers determined that there was no officer in the county who

matched the description that K.H. gave them.

       Forensic analysis revealed Williams's DNA in semen found on a vaginal swab

taken from K.H. during a sexual assault examination.

       3.     Application

       Williams claims that the trial court abused its discretion in admitting evidence of

K.H.'s age because he was not charged with sexual crimes against children in the present

case and thus, there was little probative value in permitting the people to present evidence

that his conduct "consisted of a lewd act on a 14-year-old-child." Williams further argues

that the possibility of prejudice stemming from the admission of the evidence of K.H.'s

age outweighed any potential probative value of the evidence.

       Although the trial court might have chosen to preclude the People from presenting

evidence of K.H.'s age under Evidence Code section 352, we cannot say that it was an

abuse of discretion for the trial court to decline to do so. To begin with, as the People

contended in the trial court and argue again on appeal, K.H.'s age had at least some

probative value in demonstrating that Williams took advantage of K.H.'s youth in the

manner by which he deceived her before raping her. Further, evidence of K.H.'s age was

a required element in establishing that Williams committed the uncharged offense of



                                             16
lewd or lascivious act on a 14 or 15 year old (§ 288, subd. (c)(1)), a qualifying sexual

offense under Evidence Code section 1108.11

       Further, the trial court did not abuse its discretion in admitting evidence that

Williams committed a violation of section 288, subdivision (c) (lewd or lascivious act on

a 14 or 15 year old). While the probative value of Williams's commission of a violation

of a sexual offense on a child may not have been high in light of the fact that the charged

offenses involved forcible sexual assaults against adults, the trial court could have

reasonably concluded that the evidence had some probative value. (See People v.

Escudero (2010) 183 Cal.App.4th 302, 311 ["the prior offense evidence had substantial

probative value despite the differences in the ages of the females"]; People v. Soto (1998)

64 Cal.App.4th 966, 984 [" ' "[m]any sex offenders are not 'specialists', and commit a

variety of offenses which differ in specific character" ' "].) In addition, the offense

against K.H. was not remote and, given the DNA evidence, the evidence was

overwhelming that Williams committed a violation of section 288, subdivision (c)(1).

       The possibility of undue prejudice stemming from the jury hearing evidence of

K.H.'s age was mitigated to some degree by the fact that the jury was presented with

evidence that K.H.'s ad indicated that she was 20 years old and evidence that K.H. told

Williams that she was 18. In addition, because the jury was not instructed that Williams's


11     The jury was instructed that in order to prove that Williams committed the
uncharged offense of lewd and lascivious act on a child 14 or 15 years of age (§ 288,
subd. (c)(1)), the People were required to prove, among other elements, that the victim
was "14 or 15 years old at the time of the act." With respect to this uncharged offense,
the jury was also instructed, "It is not a defense that the child may have consented to the
act."
                                              17
knowledge of K.H.'s age was an element of any of the uncharged sexual offenses,12 it is

unlikely that the jury focused on whether Williams knew that K.H. was just 14 years old.

       Finally, as the record discussed above demonstrates, the trial court carefully

considered the question of the admissibility of evidence of K.H.'s age. Under these

circumstances, we conclude that the trial court did not abuse its discretion in determining

that the probative value of evidence of K.H.'s age was not "substantially outweighed"

(Evid. Code, § 352) by the probability that the admission of such evidence would create a

substantial danger of undue prejudice under Evidence Code section 352.13

B.     In imposing consecutive One Strike law sentences on counts 7 and 8, the trial
       court erred in failing to apply the version of that law in effect in 2002, at the time
       Williams committed those counts; the matter must be remanded for resentencing

       Williams contends that in imposing One Strike law sentences of 25 years to life on

counts 7 and 8, the trial court erred in failing to apply the version of section 667.61,

subdivision (g) that was in effect in 2002 (former § 667.61, subd. (g)), when he

committed the charged offenses. Williams further contends that the trial court could not

12      Further, in describing the meaning of the requirement that the defendant have
"willfully" touched a part of the child's body, the instruction outlining the elements of
section 288, subdivision (c)(1) informed the jury that, "[i]t is not required that [the
defendant] intend to break the law, hurt someone else, or gain any advantage."
13      Williams claims that the trial court's alleged error in denying his request to
preclude the People from presenting evidence of K.H.'s age had the effect of violating his
constitutional rights to due process and a fair trial. Williams contends that "adding a
federal constitutional dimension to an evidentiary objection is permitted on appeal."
(Citing People v. Brady (2010) 50 Cal.4th 547, 557, fn. 4.) Our conclusion that the trial
court did not abuse its discretion in determining that the proffered evidence was relevant
and admissible, necessarily leads to our rejection of Williams's constitutional claim. (See
Ibid. [" 'rejection, on the merits, of a claim that the trial court erred on the issue actually
before that court necessarily leads to rejection of the newly applied constitutional "gloss"
as well' "].)
                                              18
have imposed One Strike law sentences on both counts 7 and 8 under former § 667.61,

subdivision (g) because the offenses were committed on a "single occasion" (former

§ 667.61, subd. (g)) as that term was interpreted in People v. Jones (2001) 25 Cal.4th 98,

107 (Jones).

       Williams also claims that the trial court erred in stating that it was required to

impose mandatory consecutive sentence on counts 7 and 8, because the law in effect in

2002 (former § 667.61) permitted the court to impose either concurrent or consecutive

sentences on these counts. Williams requests that we remand the matter to the trial court

to permit that court to exercise its discretion with respect to whether to impose concurrent

or consecutive sentences on these counts.

       The People concede that the trial court "mistakenly applied the current law" in

sentencing Williams on counts 7 and 8. However, the People argue that because "the

evidence presented at trial supports the conclusion that counts 7 and 8 were committed on

'separate occasions' as that term is defined in Jones," the trial court's imposition of One

Strike law sentences on both counts 7 and 8 should be affirmed.

       The People also concede that, as a result of the trial court's error in applying

current law in sentencing Williams on counts 7 and 8, the court "mistakenly believed that

it was required to impose these counts consecutively. . . ." However, the People contend

that remanding the case to permit the court to exercise its discretion as to whether to

impose concurrent or consecutive sentences on these counts would be an "idle act,"

because, they maintain, it is clear that the court would exercise its discretion to impose

consecutive sentences.

                                              19
       We agree with the People's concessions and conclude that the trial court's

statements at sentencing unequivocally indicate that the court erroneously applied current

sentencing law rather than former section 667.61 in sentencing Williams on counts 7 and

8. We conclude that the matter must be remanded for a new sentencing hearing at which

the trial court shall determine whether counts 7 and 8 were committed on a "single

occasion" (former § 667.61, subd. (g)), and whether to impose concurrent or consecutive

sentences on these counts. After making these determinations, the trial court shall

resentence Williams on all counts in a manner consistent with the court's determinations

on these issues.

       1.     Governing law

              a.     Relevant portions of the law at the time of the commission of
                     the offenses charged in counts 7 and 8

                     i.     Sentencing for the commission of multiple sexual
                            offenses under former section 667.61, subdivision (g)

       Former section 667.61, subdivision (g) provided that a One Strike sentence of 25

years to life "shall be imposed on the defendant once for any offense or offenses

committed against a single victim during a single occasion." In Jones, supra, 25 Cal.4th

98, the California Supreme Court considered the meaning of the term "single occasion" in

former section 667.61, subdivision (g). The Jones court concluded that "multiple sex

offenses occurred on a 'single occasion' within the meaning of . . . section 667.61,

subdivision (g), if there was a close temporal and spatial proximity between offenses."

(Jones, supra, at pp. 100-101.)



                                             20
        The Jones court specifically rejected the contention that the term "single occasion"

in former section 667.61, subdivision (g) should be interpreted in a manner similar "to the

definition of . . . 'separate occasions' under Penal Code section 667.6, subdivision (d),"

which provides for full, separate, and consecutive sentences for certain sex offenses " 'if

the crimes involve separate victims or involve the same victim on separate occasions.' "

(Jones, supra, 25 Cal.4th at p. 104, quoting § 667.6, subd. (d).) The Jones court rejected

the section 667.6, subdivision (d) standard, and concluded that multiple sex offenses

occur on a "single occasion" under former section 667.61, subdivision (g) if there is a

close temporal and spatial proximity between the offenses. (Jones, supra, at pp. 100-

101.)

        In 2006, the Legislature superseded Jones by expressly adopting the standard for

imposing multiple One Strike sentences that the court rejected in that case. (See Stats.

2006, ch. 337, § 33.) Specifically, the Legislature mandated the imposition of One Strike

law sentences "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." (Italics added.)

                      ii.    Consecutive sentencing under former section 667.61

        Unlike section 667.61, subdivision (i),14 former section 667.61 did not require a

trial court to impose mandatory consecutive One Strike law sentences in cases in which a




14     Section 667.61, subdivision (i) provides in relevant part, "[T]he court shall impose
a consecutive sentence for each offense that results in a conviction under this section if
                                             21
defendant committed multiple One Strike law offenses against a victim on separate

occasions. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262 [noting that

former section 667.61 "does not mandate" that sentences imposed under former section

667.61, subd. (g) be served consecutively].)

       2.     Application

              a.     The record is clear that the trial court erroneously failed to apply
                     former section 667.61, subdivision (g) in imposing One Strike
                     sentences on both counts 7 and 8

       At sentencing, in determining whether to impose One Strike sentences on both

counts 7 and 8, the trial court made no reference to former section 667.61, subdivision (g)

or the standard for determining whether multiple sex offenses occurred on a "single

occasion" for purposes of that statute, as established in Jones. Instead, the court referred

to section 667.61, subdivision (i), stating, "And considering the language of Penal Code

[s]ection 667.6, [subdivision] (d) and the description of the same victim on separate

occasions, I do find that the crimes for which the defendant was convicted . . . involve the

same victim on separate occasions within the meaning of Penal Code [s]ection 667.6,

[subdivision] (d) . . . ." The court proceeded to impose One Strike law sentences of 25

years to life on both counts 7 and 8.

       In 2002, at the time of Williams's commission of counts 7 and 8, the Legislature

had not adopted section 667.61, subdivision (i) and its incorporation of the "reasonable




the crimes involve separate victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6."
                                             22
opportunity to reflect" standard (§ 667.6, subd. (d)). Further, the Supreme Court had

expressly rejected that standard in Jones. We therefore agree with the People that the

trial court's "references to section 667.61, subdivision (i)," and the court's determination

that Williams had a "reasonable opportunity to reflect on his actions," make clear that the

trial court "mistakenly applied the current law when it sentenced [Williams] . . . ."

                b.    The record is clear that the trial court erroneously concluded
                      that it was required to impose mandatory consecutive sentences
                      on counts 7 and 8

       At sentencing, after reviewing current section 667.61, subdivision (i), the trial

court stated:

            "So what is very clear is that where the two separate victims are
            involved the Court is mandated to impose consecutive sentences,
            and where the circumstances involving a single victim fall within
            [section] 667.6[, subdivision] (d), I am also required to do the same."

       The court thereafter ruled that the One Strike law sentences of 25 years to life on

both counts 7 and 8 would be consecutive.

       The law in effect at the time of Williams's commission of counts 7 and 8, former

section 667.61, did not mandate the imposition of consecutive sentences.15 We therefore

agree with the People that the trial court erroneously concluded that it was required to

impose mandatory consecutive sentences on counts 7 and 8.

       3.       On remand, the trial court shall determine whether counts 7 and 8
                were committed on a "single occasion" under former section 667.61,


15     The consecutive sentencing mandate was also adopted in 2006. (See Stats. 2006,
ch. 337, § 33.)
                                              23
              subdivision (g)

       In his brief on appeal, Williams contends that if the trial court had properly

applied the " 'single occasion' rule of then-existing section 667.61, subdivision (g)," the

trial court could have imposed only a single One Strike law sentence for counts 7 and 8

because the rapes forming the basis of those counts occurred "in close temporal and

spatial proximity." The People, in contrast, argue that the evidence presented at trial

establishes that counts 7 and 8 were committed on "separate occasions" under Jones. We

conclude the trial court must resolve this factual matter on remand because the evidence

does not establish, as a matter of law, either party's position. By way of summary, the

evidence suggests that the rapes on which counts 7 and 8 were based were separated by a

period of time during which Williams and the victim left the upstairs bedroom and went

downstairs, where they ate and spoke with a third person. However, it appears that both

rapes occurred in the upstairs portion of the house, and the victim apparently remained

under Williams's control in the same residence throughout the entire incident.

       In evaluating whether the rapes described above occurred on a " 'single occasion'

within the meaning of . . . section 667.61, subdivision (g)" under Jones, such that only a

single One Strike sentence could be imposed, the trial court is directed to the following

cases in which courts have undertaken a similar analysis: Jones, supra, 25 Cal.4th at pp.

100-101 [sexual offense occurred on a single occasion where defendant repeatedly




                                             24
sexually assaulted victim in back seat of a car over a period of approximately an hour and

a half ]; People v. Fuller (2006) 135 Cal.App.4th 1336, 1343 [concluding that three rapes

occurred on a single occasion under Jones where the rapes occurred "within about an

hour" while defendant and victim remained in same apartment and "[d]efendant kept

[victim] under his continuous and uninterrupted control during the entire time of the

incident"]; People v. Chan (2005) 128 Cal.App.4th 408, 424 ["The forcible lewd conduct

offenses in this case were committed on separate days over a six-month 10-day time

period—hence, they were not committed in 'close temporal and spatial proximity' within

the meaning of [former] section 667.61, subdivision (g)"]; People v. Stewart (2004) 119

Cal.App.4th 163, 167, 174-175 [concluding defendant could receive only a single life

term under former section 667.61, subdivision (g) where defendant asked child victim to

take off her clothes, rubbed lotion on her arms, legs, and chest, licked her vagina for

about five seconds before victim pushed defendant's head away, and continued to orally

copulate victim for two or three minutes despite being told three times to stop].

       Accordingly, on remand, the trial court shall determine whether counts 7 and 8

were committed on a "single occasion" under former section 667.61, subdivision (g) such

that Williams may not receive a One Strike law sentence on each count. If the court

concludes that the offenses were committed on a "single occasion" under former section

667.61, subdivision (g), the Court shall impose a single One Strike law sentence on one

of the two counts and impose a term "authorized elsewhere in the Penal Code" on the

other count. (People v. Stewart, supra, 119 Cal.App.4th at p. 175.)

                                             25
26
       4.       On remand, the trial court shall determine whether the new sentences
                imposed on counts 7 and 8 shall be concurrent or consecutive

       The People contend that it is clear from the trial court's statements at sentencing

concerning the aggravated nature of Williams's crimes that the court would have imposed

consecutive sentences on counts 7 and 8, even if it had been aware of its discretion to

impose either consecutive or concurrent sentences on these counts. We need not

speculate with respect to whether the court would have imposed consecutive sentences on

counts 7 and 8 because we are remanding the case for resentencing, for the reasons stated

in part III.B.3, ante. Accordingly, on remand, we direct the trial court to exercise its

discretion to determine whether the sentences imposed on counts 7 and 8 on resentencing

shall be served concurrently or consecutively.

C.     The errors in the abstract of judgment must be corrected

       Williams contends that the abstract of judgment erroneously states that count 5

was committed " 'in concert' " and that he was convicted of count 6 by "plea." The

People concede the errors. We agree with the concessions. In addition to these errors,

the abstract of judgment incorrectly states that the crimes charged in counts 6, 7, and 8

were committed in 2012. It is undisputed that these crimes were committed in 2002.

       On remand, the trial court shall prepare a new abstract of judgment correcting

these errors.




                                             27
                                            IV.

                                      DISPOSITION

       The convictions are affirmed. The judgment is reversed and the matter is

remanded for resentencing in accordance with part III.B, ante. Upon resentencing, the

trial court is directed to prepare a new abstract of judgment outlining the new sentences

imposed and correcting the errors identified in part III.C, ante, and to forward the new

abstract of judgment to the Department of Corrections and Rehabilitation.



                                                                      AARON, J.
WE CONCUR:

McCONNELL, P. J.

PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                            28
