Filed 12/11/13 P. v. Brewer CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. ALEXANDER MANUEL BREWER, Defendant and Appellant. H039051 (Santa Clara County Super. Ct. No. CC962809)

A jury convicted defendant Alexander Manuel Brewer on one count of sexual penetration with a child 10 years of age or younger, and two c ounts of a lewd or lascivious act on a child. (Pen. Code , §§ 288.7, subd. (b), 288, subd. (a).) 1 The trial court sentenced defendant to a term of 15 years to life, consecutive to two concurrent threeyear terms. On appeal, defendant contends the tr ial court erred in denying his motion to dismiss for vindictive prosecution. We find defendant’s claim without merit, and we will affirm the judgment.

1 Subsequent undesignated statutory references are to the Penal Code.2 F ACTUAL AND P ROCEDURAL B ACKGROUND A. Pretrial Proceedings On December 4, 2009, the prosecutor ch arged defendant with two counts of a lewd or lascivious act on a child for molesting his two half sisters: nine-year-old M. Doe, and five-year-old C. Doe. (§ 288, subd. (a).) The complain t also alleged multiple victims under the “One Strike” law. (§ 667.61, subds. (b), (e).) In exchange for dismissal of the strike allegation and one count of a lewd act , defendant pleaded no contest to lewd or
lascivious act on a child and continuous sexual abuse of a child. In exchange, he received a stipulated term of 24 years. ( §§ 288, subd. (a), 288.5, subd. (a).) Before sentencing, the parties and the c ourt determined that the 24-year term was unlawful under the applicable statutes, a nd that the maximum term was 18 years. Defendant’s retained counsel moved to withdraw his plea. 2 The trial court granted the motion, set aside the plea, and reinstated the complaint. At the start of the second preliminary hearing on June 28, 2011, the prosecutor announced her intent to amend the complaint to add two counts: se xual penetration of a child, and a third lewd or la scivious act on a child. The prosecutor had previously provided defendant with the amended compla int. After the victims and their mother testified, the parties agreed to continue the preliminary hearing for the purpose of discussing settlement. When the hearing resumed on July 14, 2011, the prosecutor announced she had made an offer of 18 years in exchange for a pl ea to three counts of a lewd or lascivious
act on a child and one count of a lewd or lascivious act on a child by force. (§ 288, subds. (a) & (b).) Defendant personally re jected the offer on the record. At the

2 Defendant’s moving papers suggest the par ties agreed to the 18-year term before he moved to withdraw his plea. Defendant ra ises no claims of ineffective assistance of counsel; any such claims would have to be brought separately by writ and are not before this court in this appeal.3 conclusion of the hearing, the court held defe ndant to answer on all four counts in the amended complaint. The prosecution file d the information on July 21, 2011. On November 17, 2011, de fendant, arguing vindictive prosecution, moved for dismissal of the charge of sexual penetrati on of a child. The trial court denied the motion, and the case proc eeded to trial.
B. Trial and Sentencing M. Doe, defendant’s half sister, testified that she liv ed in the same house as defendant when she was nine, along with her younger siste r, C. M. testified that defendant touched her vagina an d buttocks with his hands and penis. The first time he did so was around Christmas 2008, at night. She testified th at defendant did this more
than ten times. M. testifie d defendant used his finger to penetrate her va gina on multiple occasions and that it caused her pain. C. Doe, eight years old at the time of tr ial, testified that defendant touched her “flower,” or vagina, with his hand while she wa s asleep at night. Sh e told her mother the next morning, but C. said she thought it was a dream.
Defendant testified in his defense. He admitted he to uched M.’s vagina on three
occasions while he was “buzzed” on alcohol. He denied penetrating her vagina with his finger or penis. He testified that he never molested C. On May 10, 2012, the jury found de fendant guilty on Count One (sexual penetration with a child [M.]) and Counts Two and Three (lewd or lascivious act on a child [M.]). The jury hung on Count Four (lewd or lasciv ious act on a child [C.]), and the
trial court declared a mistrial on that count. The trial court sentenced defendant to a term of 15 years to life for Count One, consecutive to two three-year terms for each of Counts Two and Three, to run conc urrently. The prosecution dismissed Count Four.

D ISCUSSION4 Defendant contends the pr osecutor engaged in vindi ctive prosecution when it amended the complaint to add Count One (sexual penetration with a child) following his successful plea withdrawal. The Attorney General contends th e record is inadequate to support review of this claim because the reco rd contains no transcript of the hearing and
no record of the trial court’s denial of the motion. Alternatively, the Attorney General argues defendant has failed to establish any vindictive motive or presumption of
vindictiveness.
A. Forfeiture of the Claim As an initial matter, we consider whethe r defendant has adequa tely preserved his
claim for review. The Atto rney General contends the record shows no denial of
defendant’s motion to dismiss fo r vindictive prosecution. We disagree. Defendant filed
a written motion on November 17, 2011, and the prosecu tion replied in writing on December 2, 2011. The parties’ papers noticed a hearing set for Dece mber 9, 2011, to be held in Department 31. The record shows minutes of a hearing held on that date in Department 31 on a motion to dismiss, whic h the court denied. Although the clerk identified the motion as coming under sectio n 995, the record shows no other motion to dismiss. These minutes therefore appear to document the hearing on and dismissal of
defendant’s motion to dismiss fo r vindictive prosecution. The Attorney General also contends we must reject defendant’s claim because the record holds no transcript of the hearing. Defendant bases his appellate claim—as he did his motion below—solely on the procedural hist ory, the facts set forth at the preliminary hearing, and the law. However, the Attorney General is correct that, absent a transcript, we cannot know what finding s the trial court made, factual or otherwise. (See Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4t h 446, 452 [critic izing failure of defendant to provide transcript of hearing in writ proceeding].) Defendant’s claim fails on that ground alone. Nonetheless, even co nsidering the merits of defendant’s arguments on the record here, we reject his claim for the reasons below.5 B. Merits of the Claim On this record, defendant’ s claim fails because he cann ot establish a presumption of vindictiveness, and he presents no evidence to support it. 3
Defendant’s reliance on the case law in su pport of a presumption of vindictiveness is misplaced. In Twiggs v. Superior Court (1983) 34 Cal.3d 360, and In re Bower (1985) 38 Cal.3d 865, the California S upreme Court considered claims of vindictive prosecution where the prosecutor increased the severity of charges follo wing a defendant’s assertion of his right to retrial following a mistrial. In that situation, the high court held, a defendant can establish a presumption of vind ictiveness, whereupon the burden shifts to the prosecution to rebut the presumption. ( Twiggs v. Superior Court, supra, at p. 371.) Here, by contrast, the prosecutor added th e charge of sexual penetration with a
child before defendant went to trial. De fendant argues nonetheless that In re Bower supports his claim that, as a matter of law, the prosec ution should be barred from increasing the severity of his charges following his exercise of his right to withdraw his plea. Defendant cites no case supporting this proposition. To the contrary, the cases defendant cites are explicitly conf ined to the addition of charges after jeopardy attaches. The timing of the prosecutor’s action is important because “[ a] prosecutor should remain
free before trial to exercise the broad discre tion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision shou ld not freeze future
conduct. As we made clear in Bodenkircher , the initial charges filed by a prosecutor may

3 Based on the trial court’s denial of the motion, together with defendant’s failure to obtain a transcript of the hearing, we w ill infer that the court made no findings that supported his motion. We note that Californi a courts have not set forth a standard of review for an appeal from a denial of a mo tion to dismiss for vindictive prosecution. (See People v. Ayala (2000) 23 Cal.4th 225, 299 [re jecting defendant’s claim of vindictive prosecution “under any standard of review”].) This court has applied a substantial evidence standard of review to factual findings supporting a denial of a motion to dismiss for vindictive prosecution. ( People v. Puentes (2010) 190 Cal.App.4th 1480, 1487.) However, the record here cont ains no factual findings pertaining to the motion.6 not reflect the extent to which an individual is legitimately subject to prosecution. [Fn. omitted.]” ( United States v. Goodwin (1982) 457 U.S. 368, 382.) This court’s holding in People v. Hudson (1989) 210 Cal.App.3d 784, is squarely on point. There, the defenda nt pleaded guilty to misdemea nor charges and subsequently moved to withdraw her plea, whereu pon the case was set for trial. ( Id. at p. 785.) The prosecutor then amended the co mplaint to add felony charge s. Hudson argued the added charges constituted vindictive pr osecution following her exercise of her right to withdraw her plea. This court held “it was insufficien t to warrant the application of a presumption that the more serious charges were filed in retaliation for respondent ’s exercise of her constitutional rights. As in the cases involving pretrial situations, for this court to hold otherwise would significantly abridge prosecu torial charging discretion in a fashion inconsistent with statutory authority.” ( Id. at p. 788.) Defendant here is likewise not entitled to a presumption of vindictiveness based solely upon a showing that the prosecutor increased the sever ity of the charges following the withdrawal of his plea but prior to trial.
Nor has defendant made a ny showing of vindictiveness based on the facts in the record. Defendant’s sole argumen t in this regard is that one of the victims, testifying at the second preliminary hearing on June 28 , 2011, recanted her prior statement that defendant had sexually penetrated her. The prosecution then introduced the victim’s prior statement that defendant had penetrated her. Defendant asserts that the evidence supporting the charge of sexual penetra tion was actually weaker after the second preliminary hearing, and that vindictiveness is therefore the only explanation for the subsequent addition of that ch arge to the complaint. This argument does not comport with the timing of events as shown by the record. The prosecutor announced he r intent to amend the complaint—and provided defense counsel with a copy of the complaint— before the victim’s testimony at the second preliminary hearing. Furthermore, before the hearing resumed on July 14, 2011, the7 prosecutor offered a plea bargain of 18 years— substantially less severe than defendant’s initial settlement—in exchange for a disposition that did not include a plea to the charge of sexual penetration. Defenda nt personally rejected the offer, despite being fully aware of the charges to which he would be held to answer at that time.
Defendant’s claim of vindictiveness is not supported by the prosecutor’s actions here, and he is not entitled to such a pres umption. We find his claim without merit.I. D ISPOSITION The judgment is affirmed.

_______ ____________ ____________ Márquez, J.

WE CONCUR:

_____________ __________________ _____________ Bamattre-Manoukian, Acting P. J.

_____________ _________________ Grover, J.