1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

PAUL ANTHONY HARRIS,

Defendant and Appellant.

C075446

(Super. Ct. Nos.

10F03102, 10F05045)

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. 
2

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 sevenyear-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 
3

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. 
4

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 
5

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.
6

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 
7

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.
8

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]. 
9

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. 
10

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.