Filed 6/30/15 P. v. Harris CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                            C075446

                   Plaintiff and Respondent,                                    (Super. Ct. Nos.
                                                                              10F03102, 10F05045)
         v.

PAUL ANTHONY HARRIS,

                   Defendant and Appellant.


         A jury convicted defendant Paul Anthony Harris in November 2013 of nine counts
of aggravated lewd conduct on three children under the age of 14, and found true the
specified circumstance of multiple victims under the one strike sentencing law. (Pen.
Code, §§ 288, subd. (b)(1), 667.61, former subd. (e)(5) [now subd. (e)(4)].)1 Sentenced
to nine consecutive one strike sentences of 15 years to life, defendant appeals. (§ 667.61,
subd. (b).) Defendant’s offenses occurred in the time frame of 2005 to 2006, and 2010.

         Defendant contends that People v. Soto (2011) 51 Cal.4th 229 (Soto)—which held
in part that victim consent cannot negate the duress element of aggravated lewd


1 Undesignated statutory references are to the Penal Code.



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conduct—constituted an unforeseeable expansion of statutory criminal liability that
cannot be applied retroactively to him as a matter of due process. We find defendant’s
contention raises an arguable point, but ultimately is not helpful to defendant as to his
sentence.

         Defendant also contends the trial court unconstitutionally imposed seven of the
one strike sentences without a jury finding that the offenses occurred on “separate
occasions.” We disagree with this contention.

         We shall make a minor modification to the judgment, and affirm as modified.

                                FACTUAL BACKGROUND
2005-2006 Incidents

         Defendant moved in with his girlfriend D.J. in October 2005. While living with
her, defendant molested D.J.’s nine-year-old daughter A.J. as many as 20 times. In the
first incident, A.J. woke up to find herself naked, and a naked defendant lying on top of
her. Defendant had sex with A.J. vaginally and orally, at times grabbing her head,
pulling it closer, forcing her to continue, and causing her to cry. He told her he would
kill her and her mother if she told anyone. These incidents comprised counts one through
three.

         The day after the first incident, defendant called A.J. and her friend M.E., a seven-
year-old boy, into defendant’s bedroom where he showed them a pornographic movie.
He then took them into A.J.’s room where he instructed A.J. and M.E. to have sex
mimicking the movie. Defendant also orally copulated M.E.’s penis and had M.E. do the
same to him. These acts constituted counts four through seven.2



2 M.E. consistently denied that any oral copulation took place between himself and
defendant. M.E. also testified that when defendant told him and A.J. to take off their
clothes, defendant—whom M.E. thought of as an uncle—did so matter-of-factly rather

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       Late in 2006, M.E. reported to an adult friend of A.J.’s mother that he (M.E.) had
witnessed defendant molesting A.J. The friend reported this to A.J.’s mother, but she did
not call the police because she was afraid Child Protective Services would take A.J.
away.3 A.J. first told her mother about these incidents in December of 2009.
2010 Incident

       In March of 2010, D. Doe (D.D.), a 12-year-old girl, was staying the night at the
house of her aunt, who was then dating defendant. D.D. woke up in the middle of the
night to find defendant holding her down, inserting his finger into her vagina, and
attempting to put his tongue in her mouth. After the incident, when D.D. threatened to
tell someone, defendant threatened to kill her and her mother if she did. Frightened, D.D.
did not report the incident to her mother, but several months later she confided in a
friend. The friend reported the incident to D.D.’s mother who subsequently notified the
police. These acts comprised counts eight and nine.

                                       DISCUSSION

  I. Soto, Arguably, Is an Unforeseen Judicial Enlargement of Criminal Liability
               but This Does Not Help Defendant on the Facts Here

       Due process prohibits the retroactive application of a judicial enlargement of
statutory criminal liability, if that enlargement is unexpected and indefensible in light of
the law at the time of the conduct at issue. In other words, holding a defendant criminally
liable for conduct that could not reasonably be anticipated to be prohibited violates due
process. (Bouie v. City of Columbia (1964) 378 U.S. 347, 352-354 [12 L.Ed.2d 894, 899-




than demandingly. According to A.J., however, M.E. was scared and crying when
defendant told M.E. to suck defendant’s penis, and also cried when defendant made M.E.
have sex with A.J.
3 According to D.J., she was told about inappropriate touching but not about intercourse.



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900]; People v. Crew (2003) 31 Cal.4th 822, 853; People v. Morante (1999) 20 Cal.4th
403, 431.)

       Here, defendant claims the trial court—in line with a 2011 judicial enlargement of
statutory criminal liability in Soto, supra, 51 Cal.4th 229—violated due process with a
particular jury instruction. That instruction concerned the aggravated lewd conduct
charges against defendant in all nine counts (i.e., lewd conduct with a child under 14 by
force, duress, menace, or fear of bodily injury—§ 288, subd. (b)(1) (hereafter section
288(b)(1) or aggravated lewd conduct). In line with Soto, but contrary to prior case law,
the instruction stated, “It is not a defense that the child may have consented to the act.”
(Judicial Council of Cal. Crim. Jury Instns. (Jan. 2006 rev.) CALCRIM No. 1111.)

       Before proceeding any further, we note that a child under 14 cannot legally
consent to sexual acts. (Soto, supra, 51 Cal.4th at pp. 233, 248, fn. 11 (maj. opn. of
Corrigan, J.); see id. at p. 255 (conc. & dis. opn. of Werdegar, J.).) The question of
consent implicated here by the challenged instruction is a narrower one: Can a child
under 14 consent to an act so as to negate the element of duress required for section
288(b)(1), aggravated lewd conduct?

       Soto, in 2011, in a 4-to-3 opinion, answered this narrower question, “no.” (Soto,
supra, 51 Cal.4th at p. 233.)

       Before Soto, however, almost all the case law, beginning with a split decision from
this court, People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), had reasoned that
consent is a defense to a charge of aggravated lewd conduct involving duress, menace, or
fear of bodily injury. That is because victim consent is inherently inconsistent with the
perpetrator’s use of duress, menace, or such fear. And this was so, notwithstanding that
the Legislature in 1981 had deleted the phrase “and against the will of the victim” from
the language of the aggravated lewd conduct statute (then § 288, subd. (b)) that had
stated, “by use of force, violence, duress, menace, or threat of great bodily harm, and

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against the will of the victim . . . .” (Soto, supra, 51 Cal.4th at pp. 233, 248 & fn. 12,
italics added (maj. opn. of Corrigan, J.); id. at pp. 249-252 & fn. 3 (conc. & dis. opn. of
Werdegar, J.); Cicero, supra, 157 Cal.App.3d at pp. 476-478, 481, 484-485.)

       As Cicero explained, if the concept of violation of will is removed from the words
“duress,” “menace,” and “threat,” these words are left without substance. (Cicero, supra,
157 Cal.App.3d at p. 477.) Drawing from the law on rape, Cicero concluded that the
Legislature’s 1981 deletion of “against the will of the victim” was apparently designed to
eliminate any requirement that the People prove resistance by the victim in a prosecution
for aggravated lewd conduct. (Cicero, at pp. 480-481.)

       The Soto majority, however, in 2011, was having none of the Cicero majority.
(Soto, supra, 51 Cal.4th at pp. 241-244.) The Soto majority based its conclusion that
victim consent is not a defense to aggravated lewd conduct on (1) the Legislature’s 1981
deletion of “against the will of the victim” from the aggravated lewd conduct statute
(former § 288(b) [now § 288(b)(1)]); (2) the view that this statute focuses on the
defendant’s wrongful conduct and not the victim’s response to it; and (3) the legal
incapacity of a child under 14 to consent to sexual relations. (Soto, at pp. 233, 241-244,
246, 248.) The Soto dissent of three, however, continued to agree with the Cicero
majority of two, on consent being a defense to aggravated lewd conduct involving duress,
menace, or fear of bodily injury (formerly, threat of bodily harm). (Soto, at pp. 249-256
(conc. & dis. opn. of Werdegar, J.).)

       Against this backdrop, Soto arguably constitutes an unforeseen judicial
enlargement of section 288(b)(1) aggravated lewd conduct liability with respect to duress,
menace, or fear of bodily injury. Consequently, it is arguable, as defendant contends, that
the trial court erred in instructing the jury—in the aggravated lewd conduct context of
duress—that consent is not a defense to such a charge.



                                               5
        If we assume, then, for the sake of argument that the trial court erroneously
instructed on consent as to the duress element, the error is of constitutional dimension.
The error is a due process violation involving a judicial enlargement of statutory criminal
liability applied retroactively. Accordingly, the standard of harmless error is whether it
can be said beyond a reasonable doubt that the error did not contribute to the verdict.
(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
Counts One through Three

        With respect to the counts involving A.J. (on her own, counts one through three)
and D.D. (counts eight and nine), we think it can be said beyond a reasonable doubt that
the error did not contribute to the verdict.

        As for A.J., she testified, without dispute, that defendant grabbed her, forced her,
caused her to cry, and told her he would kill her and her mother if she told anyone of the
acts.

        D.D.’s undisputed testimony echoed A.J.’s, in that defendant held her down and
threatened to kill her and her mother if she told anyone, leaving D.D. very frightened.
Counts Four through Seven

        We cannot say, however, beyond a reasonable doubt, that the assumed
instructional error regarding consent, did not contribute to the verdicts on counts four
through seven, which involved A.J. and M.E., and M.E. alone. M.E. denied that any oral
copulation took place between himself and defendant, and M.E. stated that defendant did
not force A.J. and M.E. to have sex. A.J. disputed M.E.’s account. And the friend of
A.J.’s mother testified that M.E. told him that M.E. had witnessed defendant trying to
penetrate A.J. and had heard defendant say he would kill M.E., A.J., and their parents if
they told (M.E. himself did not testify to witnessing any sexual touching between A.J.
and defendant, and M.E. did not testify about any conversation with the friend of A.J.’s
mother). Consequently, the assumed instructional error means the verdicts on counts four

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through seven for section 288(b)(1) aggravated lewd conduct cannot stand. What can
stand, however, and what even defendant does not dispute, is that counts four through
seven can be reduced to convictions for section 288, subdivision (a), nonaggravated lewd
conduct (hereafter section 288(a) or nonaggravated lewd conduct) based on the evidence
presented here.

       That leaves the question of sentencing regarding these four reduced section 288(a)
convictions (counts four through seven). Defendant was sentenced to four consecutive
one strike terms of 15 years to life for these counts, based on the one strike specified
circumstance of multiple victims. (§ 667.61, subd. (e)(4) [former subd. (e)(5)].)

       Under the current version of the one strike law, a simple violation of section
288(a) (nonaggravated lewd conduct) is an offense subject to the one strike enhanced
term of 15 years to life (with the specified circumstance here of multiple victims).
(§ 661.67, subds. (b), (c)(8), (e)(4).) However, under the one strike law in effect at the
time defendant committed counts four through seven (between Oct. 2005 and Aug.
2006), a section 288(a) conviction was an offense subject to the one strike law, “unless
the defendant qualifies for probation under subdivision (c) of Section 1203.066 [(i.e.,
defendant is the natural parent of the child [or equivalent]; probation is in the best
interests of the child; rehabilitation is feasible; defendant is removed unless the best
interests of the child dictate otherwise; and no threat of physical harm—if all these
conditions are met, the trial court has the discretion to grant probation)].” (§ 667.61,
former subd. (c)(7) [now subd. (c)(8)], italics added; see § 1203.066, former subd. (c).)

       Thus, under the one strike law in effect at the time of counts four through seven, a
simple conviction for section 288(a) (nonaggravated lewd conduct) was not sufficient to
trigger one strike eligibility; there also had to be a finding that the defendant did not
qualify for section 1203.066, former subdivision (c) probation.



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Probation

       Here, the trial judge effectively found that defendant did not qualify for probation.
At sentencing, the trial judge announced that even if defendant were eligible for
probation under section 1203.066, the judge would not grant it because the acts disclosed
a very high degree of cruelty, viciousness and callousness by someone in a position of
trust, indicating a serious danger to society. (Cal. Rules of Court, rule 4.421.)

       Citing the Apprendi-Blakely line of United States Supreme Court decisions that
implement the constitutional right to a jury trial, defendant contends the finding of
probation qualification must be made by a jury, not a judge.4 We disagree, for reasons
we expressed in People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez).

       As we prefaced in Benitez: Under the Apprendi-Blakely line, “any fact other than
‘recidivism’ that increases the punishment for an offense beyond the ‘statutory
maximum’ (the maximum a trial court may impose on facts necessarily reflected in the
jury verdict for the offense) must be the subject of a jury finding.” (Benitez, supra,
127 Cal.App.4th at p. 1277.) Here, the jury found the “statutory maximum” punishment
facts, as to counts four through seven, when it found, at a minimum, that defendant
committed the one strike eligible offenses of section 288(a) nonaggravated lewd conduct
as to those counts, and when it found the accompanying one strike specified circumstance
of multiple victims. (§ 667.61, former subd. (e)(5) [now (e)(4)].) And, as we concluded
in Benitez, “Finding a defendant ineligible for probation is not a form of punishment,
because probation itself is an act of clemency on the part of the trial court. [Citation.]
Because a defendant’s eligibility for probation results in a reduction rather than an
increase in the sentence prescribed for his offenses, it is not subject to the rule of
[Apprendi-]Blakely.” (Benitez, at p. 1278.)


4 Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington
(2004) 542 U.S. 296 [159 L.Ed.2d 403].


                                               8
       Accordingly, we shall modify the judgment to specify that defendant’s convictions
on counts four through seven are for violations of section 288(a) rather than for section
288(b)(1). Defendant’s consecutive one strike sentence of 15 years to life for each of
these four counts remains intact.

    II. A Jury Finding of “Separate Occasions” Is Not Constitutionally Required
             for One Strike Sentencing on Counts One Through Seven

       Defendant contends the trial judge, in imposing one strike sentences of 15 years to
life on counts one through seven, unconstitutionally found these offenses were committed
on “separate occasions.” Defendant maintains, once again, that the Apprendi-Blakely line
of United States Supreme Court decisions requires the jury to make this factual finding.5
We disagree.

       At the time defendant committed counts one through seven, the one strike
sentencing law of section 667.61, subdivision (g), stated as pertinent: “The [one strike]
term . . . shall be imposed on the defendant once for any offense or offenses committed
against a single victim during a single occasion. If there are multiple victims during a
single occasion, the [one strike] term . . . shall be imposed on the defendant once for each
separate victim. . . .” (Stats. 1998, ch. 936, § 9, p. 6876.)

       We effectively rejected defendant’s contention in People v. Retanan (2007)
154 Cal.App.4th 1219 (Retanan).

       In line with Retanan’s reasoning, the “statutory maximum” punishment facts were
established here, as required by Apprendi-Blakely, when the jury found him guilty in
counts one through seven of an offense subject to the one strike law (§ 288(a)
[nonaggravated lewd conduct] or § 288(b)(1) [aggravated lewd conduct]) and found true
the one strike specified circumstance of multiple victims (§ 667.61, subds. (b), (c), (e)).


5 See footnote 4, ante.



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       And, as we concluded in Retanan, “Subdivision (g) [of section 667.61 (which
provides the basis of defendant’s contention regarding the finding of ‘separate
occasions’)], if it applied, would only act to reduce liability if defendant’s culpability was
less than the statutory penalty for his crimes. Mitigating the maximum statutory
punishment does not fall within the rule of Blakely and Apprendi. The . . . finding [by the
trial judge in Retanan] that the subdivision (g) exception does not apply because the
offenses are separate does not increase defendant’s maximum sentence.” (Retanan,
supra, 154 Cal.App.4th at p. 1230, italics added.) Consequently, the Retanan trial
judge’s finding of “separate occasions” under the one strike sentencing scheme was
constitutionally proper. The same can be said for the trial judge here.

                                       DISPOSITION

       The judgment is modified to specify that defendant was convicted, in counts four
through seven, under section 288(a) rather than section 288(b)(1). As modified, the
judgment is affirmed. The trial court is directed to amend the abstract of judgment to
reflect this modification and to send a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.


                                                         BUTZ                  , J.

We concur:


      RAYE                   , P. J.


      RENNER                 , J.




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