Filed 12/16/15 P. v. DeAquino 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
EFRAIN D E AQUINO, Defendant and Appellant. G049671 (Super. Ct. No. 13CF1165)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed in part , vacated in part, and remanded with
directions. Allen G. Weinberg, 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 INTRODUCTION A jury convicted Efrain DeAquino, as charged, of on e count (count 1) of kidnapping for rape in violation of Penal Code section 209, subdivision (b) and one count (count 2) of forcible rape in violat i on of Penal Code section 261, subdivision (a)( 2). As

to count 2, the jury found true the allegation under Penal Code section 667.61,
subdivision s (b) and (e)(1) that DeAquino kidnapped the victim in the commission of a forcible rap e. Pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 , the trial court struck one of two prior strike convictions for crimes committed on June 11,
1998

. The court sentenced DeAquino to a prison term of 30 years to life on count 2 , with a concurrent term of life with the possibility of parole on count 1.

DeAquino argues the trial court committed reversible error by permitting the prosecution to present testimony of a prior sex offense he committed in 1993. We
conclude the trial co urt properly exercised its discretion under Evidence Code section 352 in permitting the testimony and , therefore , affirm the convictions. We also conclude t he trial court properly exercised its discretion in dismissing only one of two prior strikes and

re ject DeAquino’s argument that remand is necessary for resentencing in light of People v. Vargas (2014) 59 Cal.4th 635 ( Vargas ) . Remand is necessary, however, for the limited purpose of determining DeAquino’s ability to pay the probation report fee,
restit ution fine, and parole revocation restitution fine.

FACTS
I. The Charged Offense
At about 4:00 a.m. on December 10, 2000, H.R., then 19 years of age, left her home in Santa Ana to go to work cleaning an office building in the City of Orange.
She walked t o work because she did not have a ride. It was still dark when H.R. left, and3

she was alone. About 45 minutes to an hour later, a car pulled up next to H.R. and the driver, later identified as DeAquino, offered her a ride. After telling DeAquino where she was going, H.R. got into the car and sat in the front passenger seat

.

On the way toward H.R.’s work, DeAquino made a turn into the parking lot
of a fast

- food restaurant. H.R. became scared. The parking lot was dark and there were
no other cars in it. DeAquino parked the car facing a brick wall. He took off his pants and told H.R. to take off hers. H.R. said she could not take off her pants because they were too tight. She cried as DeAquino pulled her pants and underwear down to her
knees. DeAquin o climbed on top of H.R. and placed his penis in her mouth. He was holding a pocketknife and told H.R. , “either .

. . go along with it or to do it the hard way.” H.R. was afraid DeAquino would kill her and chose not to resist. He raped her and ejaculate d inside her vagina. A fterwards, DeAquino used his T

- shirt to clean H.R. ’s vagina, and H.R. wiped herself with her own T

- s hirt.

DeAquino drove out of the parking l ot and back onto the street. H.R. asked DeAquino to let her go. He refused and said he w as going to take her someplace else. H.R. begged DeAquino to let her go an d told him she had a little boy. DeAquino said he
had confused her for a prostitute ; H.R. told him she was not a prostitute. He said he
could not leave her because she could call the police. He had taken her identification with her name and address and warned her that if she did contact the police , “something was going to happen to my family.”

H .R. continued begging DeAquino to let her go. He finally changed his
mind , pulled t o the side of the street, and let her out of the car. H.R. w alked to work , where he r supervisor notice d she was “unkempt and crying” and appeared to be upset. When the supervisor asked H.R. what had happened to her, she said she had been sexually assault ed. The supervisor immediately contacted the police.

R egistered nurse Toyett a Beukes conducted a sexual assault examination of
H.R. During questioning by Beukes, H.R. said that she had been threatened, her vagina4

had been penetrated by a penis, the pe nis had ejaculated in her vagina, and she was in pain

. H.R. had been wearing two pairs of underpants , and Beukes noticed the inner pair had a red blood stain in the crotch area. The outer pair of underpants w as ripped. H.R. said DeAquino had ripped them. Beukes notice d that H.R. had a scratch mark and bruise to her right shoulder, and bruising to her right upper anterior thigh, the back of her legs, and around the crease of the back of both knees. Beukes conducted a genital examination
and observed trauma to H.R.’s vagina consistent with H.R.’s report of sexual assault.
Beukes collected swabs from inside and outside the vagina. Beukes concluded that H.R.’s injuries were suffered within 72 hours of the examination.

When interviewed by a police off icer, H.R. said that DeAquino forced her into his car. In January 2001, a police investigator contacted H.R. She told the investigator she had voluntarily got into DeAquino’s car to get a ride to work and admitted she had lied when she told police office rs he had forced her. H.R. did not tell the police investigator about seeing a knife in DeAquino’s car.

Sperm from the vaginal swabs taken during H .R. ’s sexual assault
examination produced a male DNA profile that was entered into a database and compared to other DNA profiles. A match was not immediately found, so the database profiles were periodically compared. Over a decade later, in 2011, there was “a hi t ”

— the male DNA profile obtained from H.R. ’s vaginal swab matched DeAquino’s DNA.

Santa Ana p oli ce officers located H.R. and interviewed her in March 2012. When shown a photographic six

- pack lineup, H.R. identified DeAquino as the man who raped her in 2000. Two buc cal swabs were obtained from DeAquino. DNA extracted from the swabs was compared to DNA extracted from the swabs from H.R.’s sexual
assault examination. The DNA matched : There was less than a one in one trillion chance that DeAquino’s DNA was not on the vaginal swab taken during H.R.’s sexual
assault examination.5 II.
Prior Uncharged Sexual Offense C.T. testified that DeAquino raped her in December 1993, when she was 14 years of age. On the night of December 19, 1993, C.T. was at the home of a friend when three young men, aged perhaps 16 or 17, arrived. The men were interested in get ting some crystal methamphetamine. One of the men, later identified as DeAquino, offered to go get some methamphetamine if C.T. went with him. After some coaxing, C.T. agreed to go with DeAquino, and they set off on foot. They walked about a mile to an apartment complex, where DeAquino went inside to get some methamphetamine. When he returned, he told C.T. he knew of a “kickback place” where they could “ get high. ” They
walked to a boarded

- up, abandoned market not far from the apartment complex, made
th eir way in, and , using a piece of glass t o cut a line , snort ed the methamphetamine. The building was dark inside and lit only by moonlight coming through crevices.

DeAquino and C.T. began to “mak [ e ] out.” C.T. allowed DeAquino to “feel up” her shirt, but stopped him from putting his hand down her pants. He tried two
more times to put his hand down her pants, and, on the third try, C.T. allowed him to fondle her vagina. After a while, DeAquino took his hand out and told C.T. to have sex
with h im . C.T. said she was a virgin and refused. She wanted to go home. DeAquino said, “don’t make me hurt you” and, making a motion toward his pocket, told her , “I have a gun.” C.T. was crying and pleaded with DeAquino not to rape her. He unzipped his pants and told C.T. to remove hers. C.T. was scared and did as she was told. DeAquino raped C.T., had her turn over, and rape d her again. He shook her and told her to stop crying. When he was finished, DeAquin o told C.T. , “I didn’t rape you because I stayed. I’m still here. So it’s not rape.” DeAquino asked C.T. if she wanted to clean herself; she
said no. DeAquino and C.T. walked back to the home of C.T.’s friend. DeAquino wrapped his arm around her shoul der and told her several times that he had not raped her.6

C.T. tried to act “cool and casual” but she was “terrified of the whole situation.” When they arrived at the friend’s house, C.T. fled by climbing over a cement fence into a drainage ditch and cra wling through the drainage ditch until she got to the street. C.T. walked to a friend’s house . The friend and her mother took C.T. home.

C.T. told her mother what had happened. C.T. was taken to a hospital,
where she underwent a sexual assault examina tion. Soon thereafter, s he spoke with two police officers and was able to identify DeAquino from photographs they showed her.

DISCUSSION
I

. Evidence of Prior Sexual Offense DeAquino argues the trial court committed prejudicial error by permitting the p rosecution to present evidence of his rape of C.T. Following lengthy argument by counsel, and over objection by DeAquino’s counsel, the court granted the prosecution’s motion to permit C.T. to testify about a sexual offense DeAquino committed against her
in 1993. The court found the evidence would not require a trial within a trial, C.T. was subject to cross

- examination, the evidence would not be “unduly prejudicial , ” and the
evidence was being presented “exactly for the purpose for which [ Evidence Code

s ection] 1108 was passed.” The trial court did not err by allowing the testimony.

A. Law Regarding Evidence of Prior Sexual Offenses

Under Evidence Code section 1101, evidence of specified instances of conduct is generally inadmissible, except “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of
mistake or accident

. . .).” (Evid. Code, § 1101, subd. (b).) Evidence Code section 1108

creates an exception to section 1101. Sect ion 1108, subdivision (a) states: “ In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant ’ s7

commission of another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not in admissible pursuant to Section 352. ”

Under Evidence Code section 352, a trial court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) creat e substantial danger of undue prejudice, of confusing the issues, or of misleading jury.” We review the admissibility of
evidence of prior sex offenses under the abuse of discretion standard. ( People v. Wesson (2006) 138 Cal.App.4th 959, 969. ) “A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’” ( Id. , quoting People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) Factors to consider in determining whether to admit evidence of other sex offenses include the “ nature, relev ance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant ’ s other sex offenses, or excluding irrelevant though i nflammatory details surrounding the offense

. ” ( People v. Falsetta (1999) 21 Cal.4th 903, 917 .)

“[T] he probative value of ‘ other crimes ’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each
offense. [Citation.] .

. . [T] he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury ’ s attention would not b e diverted by having to make a separate8

determination whether defendant committed the other offenses. ” ( People v. Falsetta , supra , 21 Cal.4th at p. 917.)

B. The Trial Court Did Not Abuse Its Discretion Under Evidence Code Section 352

.

The probative valu e of the prior crime evidence in this case was strong. DeAquino’s rape s of H.R. and of C.T. bore s ignificant similarities. In both cases, DeAquino initiated social contact with the victim, who was a young woman and a stranger. In both cases, DeAquino ga ined the woman’s trust, led the woman to a dark, secluded place, and demanded sexual intercourse. When the victim refused, DeAquino used the threat of violence with a weapon (a knife or a gun) to force the woman to comply with his demands. In both cases, DeAquino raped the victim by vaginal
intercourse

. Two similarities between the charged and uncharged offense s stand out and made the prior crime evidence particularly probative. First, in both cases, DeAquino was concerned about cleaning the victim after raping her. He cleaned H.R.’s vagina and had her wipe herself with her T

- shirt. After raping C.T., DeAquino asked her if she wanted to clean herself. Second, in both cases, DeAquino tried to deny his actions constituted rape. He told H.R. he thought she was a prostitute and told C.T. “I didn’t rape you because I stayed. I’m still here.” Those two characteristics serve to differentiate DeAquino’s sex offenses from other cases of rape.

C.T.’s testimony, like most evidence of prior sex offenses, potentially had a prejudicial effect on the jurors . The jury was never informed whether DeAquin o was charged or convicted of any offense involving C.T. In the a ppellant’s o pening b rief, DeAquino mentions that the offense was “adjudicated as a statutory rape , ” but he does not argu e that disposition in any way made the prior crime evidence inadmissib le.

Nonetheless, the degree of certainty that DeAquino committed the offense against C.T. was high. C.T. testified, in some detail, at trial and was honest and9

forthcoming about her own drug use on the night DeAquino raped her. Further, t here
was littl e or no likelihood that C.T.’s tes t imony would or did confus e , mislead , or distract the jurors

. The probative value of C.T.’s testimony was not outweighed, much less substantially outweighed , by the probability its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. In addition, the trial court instructed the jury with CALCRIM No. 1191 on how to consider and evaluate evidence presented under Evidence Code section 1108. We presume jurors are int elligent and capable of understanding and applying the trial court ’ s instructions. ( People v. Gonzales (2011) 51 Cal.4th 894, 940.) In sum, the trial court did not abuse its
discretion under Evidence Code section 352 by allowing the prosecution to presen t evidence of DeAquino’s sex offense against C.T.
II. Prior Strike Conviction s DeAquino admitted hav ing two prior strike convictions

. He made a motion asking the trial court to exercise it s discretion under Penal Code section 1385,
subdivision (a) to strike at least one , if not both, of the prior strike convictions on the ground “both arise from the same single act, defendant’s possession of the concealed firearm.” The prosecution agree d that the prior strike convictions arose out of DeAquino’s po ssession “of only one gun. ”

After hearing lengthy argument on the matter, the trial court struck one of the two prior strike convictions. The court explained that because the same act resulted
in the two convictions , t he appropriate thing to do was to s trike one prior strike
conviction and double DeAquino’s term of imprisonment. The court proceeded to

sentence DeAquino to a term of 15 years to life in prison, doubled due to the one remaining strike, for a total sentence of 30 years to life. (See Pen. C ode, § 667.61,
subd. (b).)10 Five months after DeAquino was sentenced, the California Supreme Court
issued Vargas , supra , 59 Cal.4th at pages 637, 640, 649 , in which the court held that a trial court must dismiss one of two prior strike convictions based on a single act when failure to do so would be inconsistent with the spirit of the T hree S trikes law. DeAquino argues remand for resentencing is appropriate because, had the trial court known it had no choice but to dismiss one of his prior strike c onvictions , it is reasonably probabl e the court would have struck both of his prior strike convictions.

We conclude the trial court would not have struck both of DeAquino’s prior strike convictions under any circumstance. The trial court read the probat ion report and the prosecution’s sentencing brief, both of which explained in detail DeAquino’s life of crime. DeAquino’s criminal history began in 1989, when he was 13 years old and, by the
time he w as 35 years old , he had been arrested for or convicted of nearly 40 crimes. Before reaching its decision on DeAquino’s request to dismiss the prior strike convictions, the court heard argument on People v. Burgos (2004) 117 Cal.App.4th 1209,
1214 ( Burgos ) , in which the Court of Appeal held that “failure to st rike one of the two prior s convictions that arose from a single act constitutes an abuse of discretion. ” The Burgos court reasoned: “[W]here the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors.” ( Id . at p. 1215.) The prosecutor acknowledged that the trial court could dismiss both prior strike convictions and even conceded that under Burgos , it
would be an abuse of discretion for the tri al court not to dismiss one of th em

.

Thus , when sentencing DeAquino , the trial court had been requested to dismiss both of the two prior strike convictions and knew, based on Burgos , t hat failure to dismiss at least one of them would necessarily constitute an abuse of discretion. The trial court was aware too of DeAquino’s lengthy criminal history and that courts in the past had been “cutting him the breaks.” After devoting much thoug ht to the matter, the trial court decided the “right thing to do” was to dismiss only one of the two prior strike11

convictions and t o leave one prior strike conviction intact , which would result in doubling DeAquino’s sentence

. Remanding t his case for rese ntencing in light of Vargas would not result in the trial court striking both prior strike conviction s because it is certain the court
intended for DeAquino’s sentence to be based upon having one prior strike.

DeAquino suggests the trial court dismissed the prior strike conviction to grant him “leniency,” and, had the court known Vargas required the dismissal of one prior strike conviction, the court would have extended such leniency by dismissing the second prior strike conviction . The trial court did n ot mention leniency but state d it was dismissing one of the two prior strike convictions because both arose out of the same act of firearm possession, which made dismissal virtually required at the time under Burgos

. If the trial court had intended to gra nt DeAquino some leniency, it could have dismissed both prior strike convictions at the time of sentencing.
III. Probation Report Fee, Restitution Fine, and Parole Revocation Restitution Fine As part of sentencing, the trial court ordered DeAquino to pay $2,762.67 for preparation of the probation report (Pen. Code, § 1203.1b) , a restitution fine of $10,000 ( id. , § 1202.45, subd. (b)), and a parole revocation restitution fine of $10,000 ( id. , § 1202.45). Before ordering DeAquino to make those payment s , th e court commented: “The court has previously ordered the defendant to prepare a financial disclosure and warned the defendant that failure to do so could be a basis for the finding that the maximum fines should be imposed, probation denied if applicable, and imposition of the upper term could be imposed. He has chosen not to complete these documents. The court has reviewed the file and can find no prior financial declarations
from the defendant on file.”

According to t he probation report , DeAquino had c omplied with the court’s order by submitt ing an a dul t f inancial s tatement reflecting no assets and $20,000 in12

liabilities. The probation report states: “The Probation Department has conducted a
financial evaluation and has determined he does not have the ability to pay and, therefore, recommends the Court waive the costs of probation.” The probation report also
recommended that DeAquino be ordered to pay a restitution fine of $2,000.

DeAquino’s trial counsel did not object to the fee and fines imposed. In People v. Trujillo (2015) 60 Cal.4th 850, 853

- 854, the California Supreme Court held
that a defendant forfeits an appellate challenge to a fee imposed under Penal Code
section 1203.1b by failing to object in the trial court. DeAquino argues his trial counsel was ineffective for not objecting to the probation report fee and the restitution and parole
revocation restitution fines and by not drawing the court’s attention to the probation report that notes DeAquino had submitted a financial disclosure stat ement. He argues the probation report fee must be stricken and the matter must be remanded for the trial court to impose the restitution fine and the parole revocation restitution fine based on his ability to pay. The Attorney General agrees that DeAquino’s trial counsel was ineffective
and that “[t]his matter should be remanded to the trial court in order for the court to determine [DeAquino ] ’s ability to pay, and impose fines accordingly.” We exercise our discretion to consider DeAquino’s challen ge to the probation report fee, restitution fine, and parole revocation restitution fine to avert the claim of ineffective assistance of counsel. ( People v. Crittend e n (1994) 9 Cal.4th 83, 146.)

A trial court is not permitted to impose a probation repor t fee unless it finds the defendant has the ability to pay. (Pen. Code, § 1203.1b, subd. (a).) The defendant’s ability to pay is a factor the trial court must consider i n setting the amount of the restitution fine and parole revocation restitution fine i n an amount greater than the statutory minimum. ( Id. , § 1202.4, subds. (c) & (d).) In this case, the trial court did not consider DeAquino’s ability to pay because it mistakenly believed DeAquino had not provided a financial disclosure statement. We the refore vacate the probation report fee,13

restitution fine, and parole revocation restitution fine and remand to the trial court to reconsider that fee and those fine s in light of DeAquino’s ability to pay.

DISPOSITION The probation report fee, restitution fine, and parole revocation restitution
fine are vacated . In all other respects , the judgment is affirmed. The matter is remanded to the trial court for the limited purpose of considering the imposition of the probation report fee, restitution fine, and parole revocation restitution fine in light of DeAquino’s ability to pay.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.