Filed 4/24/13 P. v. Motuga CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046239

         v.                                                            (Super. Ct. No. 09CF0420)

CHRIS MOTUGA,                                                          OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
                   Patricia J. Ulibarri, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Lise
S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Chris Motuga of all four counts of which he
was accused in the operative information: (1) continuous sexual abuse of a child under
                                              1
the age of 14 (Pen. Code, § 288.5, subd. (a)); (2) lewd act on a child under the age of 14
(§ 288, subd. (a)); (3) lewd act on a child who was 14 or 15 years old and at least 10
years younger than defendant (§ 288, subd. (c)(1)); and (4) assault with the intent to
commit oral copulation (§ 220). The jury also found multiple victim allegations to be
true pursuant to the “One Strike” law (§ 667.61, subds. (b), (e)(4); see Stats. 2006, ch.
337, § 33, pp. 2163-2165 [version of statute apparently utilized by court in citing
§ 667.61, subd. (e)(5) for multiple victim enhancement]), as count 1 pertained to victim
No. 1 and count 2 pertained to victim No. 2. The court sentenced defendant to a total
prison term of 34 years to life. Although we affirm the judgment of conviction, we
reverse the judgment with regard to defendant’s sentence and remand for resentencing.


                                          FACTS


              Defendant was the longtime boyfriend/husband of a woman named M.,
who is victim No. 1’s mother and victim No. 2’s aunt. With regard to the conduct at
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issue, we will separately describe the testimony of victim No. 1 and victim No. 2.
Defendant did not testify.




1
              All statutory references are to the Penal Code.
2
              The other prosecution witnesses testified, for the most part, about the out-
of-court statements of victim No. 1 and victim No. 2. Given the issues raised on appeal,
there is no need to explore in detail various consistencies and inconsistencies in the
victims’ statements, as the jury obviously believed the gist of the victims’ testimony.


                                             2
Victim No. 2
               Victim No. 2 was born in 1985. In the summer of 1999, at a family event,
defendant walked next to victim No. 2 and “grabbed [her] butt.” Victim No. 2
characterized the touching as a “pinch.” Defendant did not say anything or do anything
after the pinch. Victim No. 2 was still 13 years old at the time of this incident.
               Just before her 14th birthday, victim No. 2’s guardians took a vacation. M.
and defendant moved into the home in which victim No. 2 was living. Once defendant
moved into victim No. 2’s residence, defendant started touching victim No. 2 on multiple
          3
occasions. Using his hands, defendant touched victim No. 2’s breasts, vagina, and butt.
Victim No. 2 did not know how many times this happened, but she agreed it occurred
regularly. Victim No. 2’s clothes were on when the touching occurred. Defendant would
sometimes initiate the contact by asking victim No. 2 to retrieve an item from somewhere
in the residence, whereupon he would follow her and touch her.
               On one occasion, defendant asked victim No. 2 to retrieve an item from
defendant’s room. After she entered the room, defendant followed victim No. 2 inside
“and closed the door . . . and locked it and pushed [her] on to the bed and tried to get
[her] to have sex with him.” Defendant was on top of victim No. 2 and tried to take her
pants off. Defendant kissed victim No. 2. M. returned home at this point and defendant
stopped his conduct. Victim No. 2 did not tell M. about what had happened because M.
“said she was happy with him, she was finally happy and I didn’t want to ruin that for
her.”


3
              Victim No. 2’s trial testimony did not provide a precise date for the arrival
of defendant at her residence. In an interview with police conducted in July 2002, victim
No. 2 provided information to the officer suggesting the move-in date was November 29,
1999. In her July 2002 police interview, victim No. 2 stated that the first incident
occurred in mid-December 1999. In a separate interview with a social worker in August
2002, Victim No. 2 indicated there had been a single incident before November 2009 in
which defendant brushed her butt with his hand.

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               Victim No. 2 testified about another incident: “It was like the same thing
— told me to go look for something. I went down the hallway and then I got there and he
was kissing me and trying to get me to go down there to give him oral sex.” Victim No.
2 did not perform oral sex.
               M. and defendant moved out of victim No. 2’s residence in the spring of
2000. After defendant had moved out, he continued to touch victim No. 2 at family
events.
               Defendant told victim No. 2 that she “better not tell anybody.” Victim No.
2 did not tell an adult, but she told two of her female cousins about what happened. In
July 2002, victim No. 2’s biological father asked her if defendant had “done these things”
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to her. Victim No. 2 told her biological father it was true, and her father confronted and
beat up defendant.
               Victim No. 2 talked to the police soon after she had talked to her biological
father in 2002, when victim No. 2 was 17 years old. Victim No. 2 also spoke with the
police in 2009.
               Defendant never had sexual intercourse or oral sex with victim No. 2.
Neither defendant nor victim No. 2 ever masturbated the other.


Victim No. 1
               Victim No. 1 was born in 1993 and was 17 years old at the time of trial.
During victim No. 1’s childhood, defendant was physically violent toward M. and M.’s
children. When victim No. 1 reached the age of 12, defendant began touching victim No.
1 inappropriately. Defendant touched victim No. 1’s breasts, vagina, and butt.
Defendant used his hands; victim No. 1 had her clothes on. The touching stopped when


4
               Victim No. 2’s sister had told their father about what Victim No. 2 had told
her on a prior occasion.

                                              4
victim No. 1 reached the age of 14 or 15. While it continued, defendant touched victim
No. 1 every day or every other day.
              Victim No. 1 recalled the circumstances of the first time defendant touched
her in a sexual manner: “Well, we were moving. We got kicked out of my apartment.
That’s when we were moving into the motel and so we had to pack all our stuff. That’s
when he started. He would grab me and he would just like pull me onto him and hold me
close to him real tight or he would grab my butt and squeeze it and stuff like that.”
              When they lived at a motel, “he would touch me, like my breast a lot, or he
would rub up against me, if I was sitting on the bed with him[]. Or, when I was sick one
time, he slipped his hand down my pants.” Defendant convinced victim No. 1 to let him
massage her stomach because she was sick, but defendant subsequently put his hands
inside her pants by her vagina.
              Another time, victim No. 1 was walking toward the door when defendant
“grabbed me from behind and pulled me on the bed and then he was rubbing against me.”
Defendant was on top of victim No. 1, who was on her back on the bed. “He had his
arms wrapped around me and his legs were wrapped around me . . . .” Defendant was
rubbing his crotch against victim No. 1’s body. On another occasion when defendant was
driving a car with victim No. 1 in the passenger seat, defendant parked the car and began
kissing victim No. 1 on the mouth.
              Victim No. 1 eventually told her mother, M., about what had happened.
She did not tell anyone right away because no one believed victim No. 2 when she made
her allegations against defendant. Defendant never had sexual intercourse or oral sex
with victim No. 1.




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                                       DISCUSSION


Sufficiency of the Evidence With Regard to Count 4
              Defendant first asserts there was insufficient evidence presented at trial to
support his conviction on count 4, assault with the intent to commit oral sex (§ 220).
Subsequently amended on several occasions, the applicable version of section 220 states
that “[e]very person who assaults another with intent to commit . . . oral copulation . . . is
punishable by imprisonment in the state prison for two, four, or six years.” (Stats. 1979,
ch. 944, § 3, p. 3253.)
              Count 4 refers to the incident in which defendant isolated victim No. 2 in
their shared residence in late 1999 or early 2000, then (as related by victim No. 2 at trial)
kissed her and tried to “get [her] to go down there to give him oral sex.” The police
officer who interviewed victim No. 2 in 2002 testified that victim No. 2 told him about a
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specific incident in which defendant “attempted to have her give him oral sex.” There is
clearly substantial evidence supporting the finding that an incident occurred. But, as set
forth in CALCRIM No. 890, the elements of the offense include the application or
attempted application of force, as well as an applicable mental state, i.e., “[w]hen the
defendant acted, he intended to commit oral copulation.” There is no further elaboration
in the record as to why it was apparent to victim No. 2 that defendant was
attempting/intending to force her to orally copulate him. Defendant argues on appeal that
the evidence is insufficient to allow a finding of guilt on this count.



5
              Testimony by a different officer at the preliminary hearing was more
explicit. This officer interviewed both victims in 2009. In her 2009 interview, victim
No. 2 “recalled an incident where [defendant] took his pants down, exposed his penis,
and told her he wanted her to perform oral copulation.” “As he did so, he grabbed her
and held her and [told her], ‘you’re going to suck my dick.’” These details were not
introduced into evidence at trial.

                                              6
              A reviewing court should not “‘“ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.” [Citation omitted.]
Instead, the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” (People v. Johnson (1980) 26
Cal.3d 557, 576.) Substantial evidence is evidence that is “reasonable, credible, and of
solid value . . . .” (Id. at p. 578.) Reasonable inferences may be made from substantial
evidence. But inferences “‘“may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.”’” (People v. Raley (1992)
2 Cal.4th 870, 891.)
              To constitute substantial evidence of a particular sex crime, testimony
“must describe the kind of act or acts committed with sufficient specificity, both to assure
that unlawful conduct indeed has occurred and to differentiate between the various types
of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy).”
(People v. Jones (1990) 51 Cal.3d 294, 316; see also People v. Raley, supra, 2 Cal.4th at
pp. 890-891 [although there was clear evidence of a forcible sexual attack of some
unspecified kind on a murder victim, her denial in the ambulance that she had been raped
and statement about “‘fool[ing] around’” was not sufficient to prove specific crime of
forcible oral copulation].)
              There is substantial evidence supporting the conviction on count 4. By
stating that defendant tried to “get [her] to go down there to give him oral sex,” Victim
No. 2 provided sufficient evidence for the jury to conclude that defendant was (along
with kissing victim No. 2) in some way trying to force victim No. 2 to put her mouth on
defendant’s sexual organ (§ 288a). This is not a case in which the only evidence is the
victim’s “subjective evaluation” of the defendant’s intent in an ambiguous scenario. (See
People v. Greene (1973) 34 Cal.App.3d 622, 651.) A reasonable jury could infer victim
No. 2 was characterizing defendant’s actions, not speculating as to his intent.

                                              7
Prosecutorial Misconduct in Closing Argument
              Defendant also claims the prosecutor committed misconduct during closing
argument by mischaracterizing the evidence relating to count 4. The prosecutor stated in
relevant part: “So what did we hear about? The defendant grabbed [victim No. 2], which
would be your force, your rude or offensive touching, he got her on her knees, he took
her head and he tried to get her to orally copulate him. Again, that could be more force.
That’s all we’re talking about. [¶] She described this to the Santa Ana police back in
2002 when she was interviewed. She talked about this incident with [the officer], and she
talked to you again about it in 2011.” Obviously, some of the specific details described
by the prosecutor were not introduced into evidence (e.g., “got her on her knees” and
“took her head”). But the rest of the description is supported by the evidence (e.g.,
defendant “tried to get her to orally copulate him,” victim No. 2 talked about the incident
to police and at trial). It is also a fair inference from the evidence to state that defendant
“grabbed” victim No. 2, in that the evidence indicates defendant isolated victim No. 2 in
the residence, kissed her, and tried to get her to perform oral sex.
              “‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairness as to make the conviction a denial of due process.”’”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.”’”’” (People v. Smithey (1999) 20 Cal.4th 936, 960.) When a claim of
prosecutorial misconduct focuses on comments made by the prosecutor to the jury, “‘the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’” (People v. Ochoa (1998) 19
Cal.4th 353, 427.)

                                               8
              “‘Statements of supposed facts not in evidence, either because never
offered, or offered and excluded or stricken, or admitted for a limited purpose outside the
scope of the comment, are a highly prejudicial form of misconduct, and a frequent basis
for reversal. The effect of such remarks is to lead the jury to believe that the district
attorney, a sworn officer of the court, has information which the defendant insists on
withholding; or that they may consider matters which could not properly be introduced in
evidence.’” (People v. Johnson (1981) 121 Cal.App.3d 94, 103.)
              “‘As a general rule, a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion — and on the same ground — the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.’” (People v. McDowell (2012) 54 Cal.4th 395, 436.) An
admonition would not have been futile in the circumstances of this case, as the court
could have reminded the jury that the attorney’s statements were not evidence. (Ibid. [no
objection necessary to review issue on appeal where objection would have been futile or
admonition would not have cured the harm].) Defendant did not object to the
prosecutor’s characterization of the evidence and therefore forfeited his right to appeal
this issue. (People v. Turner (2004) 34 Cal.4th 406, 422.) But defendant also argues his
counsel provided ineffective assistance by not objecting to the prosecutor’s statements,
                                                             6
and by this route seeks to evade his forfeiture of the issue.

6
               “To prevail on a claim of ineffective assistance, ‘First, a defendant must
show his or her counsel’s performance was “deficient” because counsel’s “representation
fell below an objective standard of reasonableness [¶] . . . under prevailing professional
norms.” [Citations.] Second, he or she must then show prejudice flowing from counsel’s
act or omission. [Citations.] We will find prejudice when a defendant demonstrates a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” [Citations.] “Finally, it must also be
shown that the [act or] omission was not attributable to a tactical decision which a
reasonably competent, experienced criminal defense attorney would make.”’” (People v.
Lopez (2005) 129 Cal.App.4th 1508, 1523.)

                                              9
              Even assuming the prosecutor’s statements were improper and defendant’s
failure to object fell below an objective standard of reasonableness, defendant did not
suffer prejudice. As is typical, the jury was specifically instructed pursuant to
CALCRIM No. 222 that “[n]othing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys discuss the case, but their remarks are
not evidence.” During its deliberations, the jury specifically requested and received a
“read back” of victim No. 2’s testimony with regard to count 4. The jury demonstrated
that it was focused on victim No. 2’s testimony to answer the question of whether count 4
was proven beyond a reasonable doubt, not the prosecutor’s description of the evidence.


Utilization of CALCRIM No. 1191
              Defendant posits the court committed prejudicial error by instructing the
jury with a modified version of CALCRIM No. 1191. As provided to the jury, this
instruction stated in relevant part, “The People presented evidence that the defendant
committed the [four charged crimes]. These crimes are defined for you in these
instructions. [¶] If you decide that the defendant committed one or more of these
offenses beyond a reasonable doubt, you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit sexual offenses, and
based on that decision, also conclude that the defendant was likely to commit and did
commit any of the other charged offenses. [¶] If you conclude that the defendant
committed one or more of these offenses, that conclusion is only one factor to consider,
along with all the other evidence. It is not sufficient by itself to prove that the defendant
is guilty of any of the other charged offenses. The People must still prove each charge
and allegation beyond a reasonable doubt.”
              In his opening brief, defendant contended “that the practice of allowing the
jury to use charged offenses to conclude that appellant is likely to have committed other
charged offenses violates due process, impedes the existence of an impartial jury, and

                                             10
results in a trial neither fundamentally fair nor reliable.” But, as defendant concedes in
his reply brief, our Supreme Court subsequently rejected his argument in an
indistinguishable case. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1169 [no error
in providing similar instruction to that used in instant case].) Defendant acknowledges
“that this Court must follow Villatoro [citation] and that the instruction in Villatoro was
substantially similar to the instruction in the current case.” We therefore reject
defendant’s assertion of instructional error.


Cumulative Error
              Defendant next asserts the cumulative effect of the court’s errors and the
prosecutor’s misconduct resulted in an unfair trial. But only one instance of misconduct
arguably occurred, and therefore no prejudice could accumulate. (See People v. Phillips
(2000) 22 Cal.4th 226, 244.)


Imposition of Consecutive Life Terms
              Applying an unspecified version of section 667.61 (the so-called One Strike
law), the court imposed two consecutive sentences of 15 years to life with regard to
counts 1 and 2. Defendant posits the court did not realize it had discretion to run these
terms concurrently. The Attorney General agrees the terms could have been run
concurrently, but claims the record does not establish that the court misunderstood the
law.
              “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

                                                11
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.)
              On count 1, the jury convicted defendant of the continuous sexual abuse of
victim No. 1 when she was under age 14 (§ 288.5, subd. (a)). On count 2, the jury
convicted defendant of lewd conduct against victim No. 2 when she was under age 14
(§ 288, subd. (a)). Defendant does not contest that these convictions were subject to the
One Strike law (See, e.g., § 667.61, subds. (c)(8)-(9) [current version of One Strike law
includes these offenses]; Stats. 2006, ch. 337, § 33, pp. 2163-2165 [same]). And the jury
found the defendant had “been convicted in the present case . . . of committing an offense
specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(4)
[current version]; Stats. 2006, ch. 337, § 33, pp. 2163-2165 [same language used in subd.
(e)(5)].)
              The One Strike law has been amended on numerous occasions since its
inception. On appeal, defendant contends the version of the One Strike law in effect in
the summer of 1999 (when count 2 occurred) is applicable to count 2 in this case. (Stats.
1998, ch. 936, § 9, pp. 5429-5431.) Unlike more recent versions, this former version of
section 667.61 is silent with regard to whether the court should run imposed life
sentences consecutively or concurrently. Thus, once the court determines the appropriate
number of life sentences to impose under pre-September 2006 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



                                            12
separate occasions and separate victims, section 667.61 does not mandate that those terms
must be served consecutively”].)
              In contrast, the post-September 20, 2006 versions (including the current
version of the statute) 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); see also Stats. 2006,
ch. 337, § 33, pp. 2163-2165.) Thus, under more recent versions of the statute,
consecutive life sentences are mandatory for each qualifying conviction. But recently
amended versions of section 667.61, subdivision (i), do not include in their lists of
qualifying offenses violations of section 288, subdivision (a), (lewd act on a child under
14, count 2) or 288.5, subdivision (a) (continuous sexual abuse of a child under 14,
count 1). Thus, regardless of which version of the One Strike law applied, the court was
required to exercise its discretion in deciding whether to sentence defendant to a
consecutive or concurrent life term on count 2.
              At the sentencing hearing, the court imposed two 15 years to life sentences
and stated “that in doing so, it is noting that count 1 and count 2 dealt with two different
victims and in the court’s opinion . . . those cannot be run concurrent to the other.”
(Italics added.) The sentencing brief prepared by the prosecutor likewise stated that
“these sentences must be served consecutively, not concurrently . . . .” Counsel for
defendant did not provide the court with the analysis set forth above, i.e., the court had
discretion to run the sentences concurrently under the language of the statute.
              The record suggests the court did not understand it had discretion to run the
two life sentences concurrently. Had the court realized it had discretion to run the
sentences concurrently, it may well have decided it was appropriate to do so in light of
the circumstances of the case. To wit, count 2 was based on a single pinch of victim No.
2’s butt, yet it qualified defendant for mandatory life sentences under the One Strike law

                                             13
on counts 1 and 2. Had defendant not committed this act, he would have been sentenced
pursuant to the determinate sentencing scheme rather than the One Strike law. The other
conduct against victim No. 2 occurred after victim No. 2 turned 14 and therefore did not
qualify for sentencing under the One Strike law. Moreover, count 1 was only eligible for
sentencing under the One Strike law because of the multiple victims finding made with
regard to counts 1 and 2.


                                     DISPOSITION


              The judgment of conviction is affirmed, but the judgment is reversed as to
defendant’s sentence. The case is remanded for resentencing in accordance with this
opinion.



                                                IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




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