Filed 7/14/15 P. v. Carreon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. HECTOR MANUEL CARREON, Defendant and Appellant. D065896

(Super. Ct. No. SCD245606)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Judgment affirmed; remanded for resentencing. Laura P. Gordon, 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, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.2

The trial court found defendant Hector Carreon guilty of 16 counts of lewd acts on a child, in violation of Penal Code 1 section 288, subdivision (a), based on conduct occurring in 2001 or 2002 in which he sexually assaulted two named victims on three separate occasi ons . The court sentenced Carreon to 15 years to life on each count, to run consecutively to each other, for a total term of 240 years to life, and ordered the sentence to run concurrently with a sentence imposed in a federal case that arose, in part, from
Carreon ' s possession of a videotape depicting his three assaults on the victims. On appeal, Carreon argues only one 15

- year - to

- life term per victim per occasion was permissible under th e pre - 2006 version of the o ne s trike l aw (former § 667.61), and
there fore the maximum permissible term was 45 years to life. 2 He also asserts California ' s statutory and constitutional double jeopardy protections barred prosecution and sentencing in the state proceeding because he was already punished for the sexual assault s in the federal proceeding. He finally claims remand for resentencing is necessary because the trial court failed to consider his probation eligibility.

1 All further statutory references are to the Penal Code unless otherwise specified

. 2 Carreon ' s opening brief also asserted a 240

- year - to

- life sentence violated the ban on cruel and unusual punishment. However, because the People have conceded (and we ag ree) he could not be sentenced to 240 years to life, Carreon withdraws that claim because he acknowledges three consecutive 15

- year - to

- life terms would not violate the ban on cruel and unusual punishment.3 I FACTUAL AND PROCEDURAL BACKGROUND
A. Facts In June 2012, the United States government executed a search warrant on
Carreon ' s home after authorities became aware his home internet connection was involved with child pornography. Agents executed a search warrant on Carreon ' s home and arrested him . During the search, they found a video tape , depicting Carreon molesting his gr eat

- niece (A.), apparently filmed sometime in June 2012. Three days later, Carreon ' s wife found additional materials, including a videotape containing three clips depicting " three different scenes , " which she turned over to federal agents. In the first clip, which lasted approximately 51 minutes and was filmed in the family home in approximately 2002 ) , Carreon molested a niece (V.) and committed multiple lewd acts against her . These acts formed the basis for the charges contained in

counts 1 through 7 . In the second clip, lasting approximately 20 minutes and also filmed in the family home in approximately 2001 or 2002, Carreon molested another niece (B.) and committed multiple lewd acts against her. In the third clip, lasting app roximately 12 minutes and also filmed in the family home in approximately 2001 or 2002, Carreon again molested B. by committing multiple lewd acts against her. The lewd acts by Carreon against B. depicted in the second and third clips formed the basis for the charges contained in counts 8 through 16 . The trial court, as trier of fact, watched the video tape and found Carreon guilty of all 16 counts and all specially alleged facts.4

B

. The Sentence The court sentenced Carreon to 15 years to life on each of the 16 counts, to run consecutively to each other, for a total term of 240 years to life. It also ordered the sentence to run concurrently with a sentence imposed in a federal case ( U. S

. v. Carreon (S.D. Cal .) No. 12CR3419

- JAH) that apparently arose, in p art, from Carreon ' s possession of child pornography.
II ANALYSIS
A. The Trial Court Erroneously Imposed 16 Consecutive Terms Carreon asserts, and the People agree , that under the version of the o ne s trike law in effect at the time of the crimes, our Supreme Court ' s decision in People v. Jones (2001) 25 Cal.4th 98 makes clear the trial court was limited to imposing a single life term for each separate attack, regardless of the number of discrete crimes committed against the victim during that separate attack, because the evidence showed all of the charged offenses occurred " during an uninterrupted time frame and in a single location. " ( Id . at
p. 107 [ " s ex offenses [ occur ] on a ' single occasion ' if they were committed in close temporal and spatial proxi mity " ; held: only single life sentence, rather than three consecutive life sentences, for a sequence of sexual assaults by defendant against one victim occurr ing during uninterrupted time frame and in s ingle location ].) W e vacate the

sentence and remand t he matter for resentencing. On remand, the trial court is authorized to impose one life term under former section 667.61 for any single occasion, and o n remand the trial court must determine which count s shall be sentenced pursuant to former5

section 667.6 1, and sentencing on other count s shall be imposed as authorized under any other law, including the then

- existing s ection 667.6 , if applicable. 3 (Stats. 1998, ch. 936, § 9, p. 6876.) (See People v. Simmons (2012) 210 Cal.App.4th 778, 797

- 798.)
B. Sentencing for the Assaults I s Not Barred by California Law Carreon asserts California ' s d ouble j eopardy protections barred the present prosecution and sentence because he was punished in the federal action for the same conduct that was the subject of the present prosecution. Double Jeopardy Principles

" Both the United States and California Constitutions provide that a person may not twice be placed in jeopardy for the same offense

. " ( People v. Scott (1997) 15 Cal.4th 1188, 1201.) Although p rosecution for the same act by different sovereigns is not barred by the Fifth Amendment to the United States Constitution guarantee against double jeopardy, states may provid e greater double jeopardy protection than is afforded by the federal Constitution . ( People v. Lazarevich (2001) 95 Cal.App.4th 416, 421.) In California, the relevant protections are contained in sections 793 and 656. ( Lazarevich , at p. 421 .) Section 793 provides that " [w]hen an act charged as a public offense is within the jurisdiction of the United States, or of another s tate or territory of the United States , as well as of this s tate, a conviction or acquittal thereof in that other jurisdiction is a bar to the prosecution or indictment in this s tate. " Section 656 similarly provides that

3 As previously noted (see fn. 2, ante ), our disp osition renders moot Carreon ' s subsidiary claim that a 240

- year - to

- life sentence violates the ban on cruel and unusual punishment. Additionally, our determination that the matter requires remand for resentencing also renders moot Carreon ' s claim that rema nd is necessary based on the court ' s failure to articulate why it did not consider Carreon ' s eligibility for probation.6

" [w]henever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another s tate or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense. " " The difference between sections 793 and 656 ' is of no legal significance; neither statute provides greater protection than the other. ' " ( Lazarevich , at p. 421, quoting People v. Walk er ( 1981) 123 Cal.App.3d 981, 985, fn. 1 .) To determine whether a defendant has been placed once in jeopardy in another jurisdiction, the court must consider the physical elements of each crime. ( People v. Lazarevich , supra, 95 Cal.App.4th at p. 421 .) " Construing the words ' " act or omission " ' as they are used in section 656 , the Supreme Court in People v. Belcher (1974) 11 Cal.3d 91, 99

. . . explained that ' a defendant may not be convicted after a prior acquittal or conviction in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution [citation]; however, a conviction in this state is not barred where the offense committed is not the same act but involves an element not pr esent in the prior prosecution. ' " ( People v. Davis (2011) 202 Cal.App.4th 429, 437 ( Davis ) .) Ordinarily, it is the defendant ' s burden to establish the facts demonstrating he or she has been placed in double jeopardy by reason of a prior conviction or ac quittal. ( People v. Burkhart (1936) 5 Cal.2d 641, 643; People v. Morales (2003) 112 Cal.App.4th 1176, 1187; People v. Mason (1962) 200 Cal.App.2d 282, 285.) On appeal, " [w] hen the double jeopardy question requires the trial court to resolve disputed fact s, the appellate7

court reviews the case under the substantial evidence standard. [Citation.] But, when the facts are uncontradicted and different inferences cannot be drawn, the question of former jeopardy is one of law for the court to decide. [Citatio n.] Moreover, determination of whether double jeopardy applies in a case involving separate prosecutions of the same or similar conduct in different jurisdictions requires the court to compare and construe the applicable criminal statutes from both jurisd ictions. [Citation s .] The construction of a statute is also a question of law. [Citation.] On appeal, we review questions of law de

novo. " ( Davis, supra , 20 2 Cal.App.4th at p. 438.) Analysis The record indicates Carreon ' s federal convictions were not predicated on the same acts constituting the offense s charged in the present case , 4 and he does not contend to the contrary. This ordinarily would be fatal to a double jeopardy claim, because " ' a conviction in this state is not barred where the offense committed is not the same act but involves an element not present in the prior prosecution. ' " ( Davis , supra, 202 Cal.App.4th at p. 437.) Carreon instead predicates his claim of a double jeopardy violation on his contention that, because the sen tence imposed by the federal court was enhanced based in

4 Carreon ' s showing falls short of satisfying his burden of establishing the facts demonstrating he has been placed in double jeopardy by reason of the federal conviction

. Instead, the record at most shows he was convicted in the federal action of six counts, five of which were alleged to have occurred between 2010 and 2012, and the sixth alleged to have occurred in 2004. In contrast, t he physical acts underlying the present convictions were apparently based on conduct in approximately 2002 to 2003 as to victim V. , and between 2001 and 2002 as to victim B. Carreon has failed to satisfy his burden of showing the factual basis for the fed eral convictions involved the same physical acts as the acts underlying the present convictions.8

part on the molestations he committed in 2001 and 2002, he was punished by the federal court for the same conduct that underlay the present action. We are not persuaded by his argument, for two reas ons. First, it is Carreon ' s burden to establish the facts demonstrating the alleged double jeopardy violation ( People v. Burkhart , supra, 5 Cal.2d

at p. 643; People v. Morales , supra, 112 Cal.App.4th at p. 1187), and he has not done so
here. Although the transcript from the sentencing hearing in federal court 5 does indicate the sentencing judge " increased the base offense level " because of Carreon ' s " sexual contact with the victim , " the transcript does not identify which victim the court was adverting to, or when such sexual contact occurred, and therefore Carreon has not demonstrated the sentencing judge increased the base offense level based on the same sexual contact with the same victims as was involved in the criminal charges brought in the present ca se. 6 More importantly, even if his federal sentence was elevated by considerati on of the same facts forming the basis for his convictions here, Carreon cites no authority suggesting that selection of a sentence for a distinct crime based on such facts wou ld trigger either federal or California double jeopardy protections. The United States

5 W e have granted Carreon ' s request to take judicial notice of the reporter ' s transcript of the sentencing hearing in the federal action.
6 Th ere is some evidence of a video tape involving sexual conduct with a different great

- niece (A.), and that there was sexual misconduct with A. occurring in 2012. Because the federal record does not identify who the " victim " mentioned by the sentencing judge was that su ffered from the sexual contact, it is unclear that Carreon ' s federal sentence was in fact " elevated " based on the same sexual contact that was the basis for the state convictions.9

Supreme Court explained in U. S

. v. Watts (1997) 519 U.S. 148 that a sentencing court , when calculating a sentence under the United States Sentencing Guidelines Manual, could properly consider the facts underlying a charge on which the jury returned a verdict of not guilty without violating the federal d ouble jeopardy clause, reasoning those

" sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. " ( Watts, at p. 154.) The Watts court relied on its prior decision in Witte v. U

. S

. (1995) 515 U.S. 389, which appears indistinguishable from the facts presented here. In Witte , the defendant suffered a prior conviction and was subjected to an enhanced sentence in that first proceeding based on certain facts. The defendant was subseque ntly indicted for crimes based on those same facts, and the defendant moved to dismiss, arguing he had already been punished for the newly charged offenses because the drugs involved in th ose transactions had been considered as relevant conduct at sentenci ng for the prior offense. ( Id. at pp. 393

- 395.) The Witte court, noting its prior decisions had " specifically

. . . rejected the claim that double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has bee n considered at sentencing for a separate crime " ( Witte , at p. 398 , citing Williams v. Oklahoma (1959) 358 U.S. 576 ), adhered to its approach and ruled that " [b] ecause consideration of relevant conduct in determining a defendant ' s sentence within the legis latively authorized punishment range does not constitute punishment for that conduct, the instant prosecution does not violate the Double Jeopardy Clause ' s prohibition against the imposition of multiple punishments for10

the same offense. " ( Id . at p. 406.) Accordingly, and as explained by Watts , " a sentencing court could, consistent with the Double Jeopardy Clause, consider uncharged [criminal acts] in imposing a sentence on [a separate charge] that was within the statutory range, without precluding the def endant ' s subsequent prosecution for the [ uncharged criminal acts]. " ( U.S. v. Watts , supra, 519 U.S. at pp. 154

- 155.) The analysis in Witte and Watts is fatal to Carreon ' s double jeopardy argument under the federal C onstitution. Carreon nevertheless argues that, because states may provide greater double jeopardy protections than are afforded under the federal C onstitution ( People v. Homick (2012) 55 Cal.4th 816, 839), the California proscription s against double jeopardy bar this
p rosecution. However, he cites no pertinent California cases supporting his claim, and the analogous authorities appear to foreclose this argument. In People v. Johnson (2015) 60 Cal.4th 966, the defendant asserted the state could not introduce (d uring th e penalty phase of a capital prosecution ) evidence he was guilty on a prior murder charge dismissed
pursua nt to defendant ' s negotiated no

- contest plea to voluntary manslaughter because it would violate the proscription against double jeopardy . Rejecting t hat claim, Johnson observed " ' [t] he presentation of evidence of past criminal conduct at a sentencing hearing does not place the defendant in jeopardy with respect to the past offenses. He is not on trial for the past offense, is not subject to convictio n or punishment for the past offense, and may not claim either speedy trial or double jeopardy protection against introduction of such evidence. ' [Quoting People v. Visciotti (1992) 2 Cal.4th 1, 71.] " ( People v. Johnson , supra, 60 Cal.4th at p. 995.) Th e Johnson court also cited with approval its prior opinion in People v. Melton (1988) 44 Cal.3d 713, in which it observed that " one is11

not placed ' twice in jeopardy for the same offense ' when the details of misconduct which has already resulted in conviction and punishment, or in dismissal pursuant to a plea bargain or for witness unavailability, are presented in a later proceeding on the separate issue of the appropriate penalty for a su bsequent offense. " ( Melton , at p. 756, fn. 17.)
Because these cases make clear t he presentation of evidence of past criminal conduct at a sentencing hearing or other proceeding for purposes of determining whether an elevated sentence may be imposed for a current crime does not place the defendant in jeopardy with respect to the past offenses under California ' s double jeopardy protections,

t he federal court ' s consideration of Carreon ' s criminal conduct toward V. and B. at the federal sentencing hearing (an d imposition of an enhanced sentence based thereon) did not bar the present prosecution under California ' s double jeopardy protections

. DISPOSITION The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with this opinion.

McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.

McINTYRE, J.