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Filed 6/ 30 /15 P. v. Harris CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 s trike 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 def endant’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 oc curred 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 li ving 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 gra bbing 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 hi m

. 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 rather3

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 inciden t, 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 com prised counts eight and nine.

DISCUSSION

I. Soto, Arguably, I s an Unforeseen Judicial En largement of Criminal Liability

b ut Th is Does Not Help Defendant on the Facts Here Due process prohibit s 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

-

th an 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 co ntrary to prior case law, the instruction stated, “It is not a defense that the child may ha ve 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 u nder 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, “ n o. ” ( 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 dure ss, 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 aggrav ated lewd conduct statute (then § 288 , subd. (b)) that had stated, “by use of force, violence, duress, menace, or threat of great bodily harm, and5

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 “again st 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 v iew 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, howe ver, 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 s aid 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 tol d 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 h imself 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 four7

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 sentenci ng 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 fou r through seven (between Oct. 200 5 and A ug. 2006), a section 288(a) conviction was an offense subject to the one strike law, “ unless the defendant qualifies for prob ation under subdivision (c) of S ection 1203.066 [ ( i.e., defendant is the natural parent of the child [ or equivalent ] ; probat ion 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 gran t 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.
A t 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 disclos ed 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
i mplement 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 p refaced 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 t han 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 Findin g of “Separate Occasions” I s N ot 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 factu al 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 offe nse 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

- Blake ly , when the jury found him guilty in counts one through seven of an offense subject to the one strike law ( § 288(a) [ non aggravated 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, a s we concluded in Retanan , “Subdivision (g) [of section 667.61 ( which provides the basis of defendant’s conte ntion 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 f inding 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

re flect 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.