IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Placer
January 25, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DONALD BRUCE VECHIK, DEFENDANT AND APPELLANT.
Super. Ct. No. 62-080001
The opinion of the court was delivered by: Nicholson,j.
P. v. Vechik 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Donald Bruce Vechik, age 59, of one count of forcible lewd acts with a child under age 14 (Pen. Code, § 288, subd. (b)(1); count one)*fn1 and three counts of lewd acts with a child under age 14 (§ 288, subd. (a); counts two, three & five). It acquitted him of a fourth count of the latter offense (count four). The jury found true allegations that defendant had a 1997 Kern County conviction of continuous sexual abuse (§§ 288.5, subd. (a), 667, subds. (b)-(i), 667.51, subds. (a) & (b)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to state prison for 72 years to life, as follows: on count one, an indeterminate term of 25 years to life (§ 667.61, subds. (c)(4), (d)(1)), doubled for the prior strike, plus five years consecutive for the prior sex crime conviction (§ 667.6, subds. (a), (e)(5) & (6)); on count three, the principal determinate midterm of six years, doubled for the prior strike; and on count five, a concurrent doubled six-year midterm plus five years consecutive for the prior conviction (§ 667.51, subds. (a) & (b)). Sentence on count two and its enhancement were stayed pursuant to section 654.*fn2
On appeal, defendant contends (1) evidence of his prior sexual misconduct involving his niece and daughter was erroneously admitted, (2) the testimony of a defense expert witness was erroneously limited, (3) his statement to police was admitted in violation of his Fifth Amendment rights, and (4) the court erroneously imposed two five-year enhancements pursuant to sections 667.51 and 667.6. We find no prejudicial error and affirm.
Victim R.S. was seven years old when she testified in May 2009. She lived in a motel room above a restaurant in Cisco Grove with her mother and her brother. R.S.'s father was incarcerated. Her maternal grandmother lived in a mobile home behind the restaurant. The grandmother worked with defendant at a rest stop on the highway. The grandmother was involved with alcohol and drugs. The mother had her own set of problems.
For about three months in 2008, defendant lived in a motel room next door to R.S. In his room, the two played games in which they fought and wrestled around while pretending to be animals. They read books together, and he gave her books as Christmas presents.
Inside defendant's room were eight videos for children and two books for children. Also inside the room were six children's drawings for children, a bag full of stuffed animals, and a compact disc of computer programs for children.
Defendant transported R.S. to and from school approximately 10 times. He told her teacher that he wanted to "be there" for R.S. when her grandmother was not available, and that "his door is always open" for R.S. Defendant explained to the teacher that he made himself available to R.S. after school.
On one occasion in 2008, while defendant and R.S. were in his room, he pulled down her pants and touched her vagina. He also touched her chest. She was scared when he touched her. He told her not to tell anyone about the touching.
R.S.'s teacher was informed, and later confirmed, that defendant was listed on the Megan's Law Web site. He was a registered sex offender who had spent six years in prison for molesting his daughter. The school principal telephoned the sheriff's department and requested that they do a welfare check on R.S. The teacher telephoned Child Protective Services (CPS).
After being advised that CPS would be investigating, the mother questioned R.S., who acknowledged that defendant had touched her with his hand. R.S. explained that, after telling her that each of his fingers was an animal, defendant "just started playing with" her private area. At the time of her conversation with R.S., the mother was unaware that defendant was a convicted sex offender. The mother told R.S. to tell the CPS worker the truth no matter what.
Thereafter, the mother reported her conversation with R.S. to the grandmother and to the grandmother's friend and colleague from work, Christine W. After word spread among the grandmother's co-workers, Christine obtained a pole and hit defendant (also a co-worker) three times.
In May 2008, R.S. was interviewed at a multidisciplinary interview center (MDIC). The jury saw a video of the interview.
Placer County Sheriff's Detective Ken Ferreira interviewed defendant in May 2008. The jury heard a recording of that interview.
Defendant told the detective that he did not know the mother or grandmother very well. He would hug and hold R.S., help her with her homework, do craft projects with her, and play games with her. They would have mock fights and would wrestle.
Defendant explained that he touched R.S. while they were playing, and he got a little too close to her private area. He admitted touching her near her pubic area but denied touching her vagina. He denied pulling down her pants, and he denied touching her while her clothes were off.
Defendant stated that he accidentally touched R.S., and his inner voice or gut feeling told him that something was wrong. The touching went on for a good five to 10 minutes. Defendant said he could have grabbed R.S.'s breasts inadvertently while they were wrestling around.
Defendant said he loved R.S. He also said that if he had not stopped himself with R.S., he would have relapsed. He said "the possibility would be just like back with my other daughter." He had touched his daughter's privates, breasts, and buttocks, for the purpose of sexual gratification, during a period when his wife was depressed and slept most of the time.
Defendant agreed with the detective's suggestion that R.S. could have been traumatized by the touching. Defendant previously had written his daughter a letter of apology, and he agreed to write one to R.S.
In his apology letter to R.S., defendant wrote that he loves her as she loves him, and that he felt like a father figure to her. He wrote that during their wrestling and tickling, he had touched her in places that he should not have touched. He added that he had done the same thing to his own daughter, and he hoped that R.S. could forgive him.
In 1997, defendant had told a Kern County Sheriff's Deputy that he had molested his daughter. The molestation had begun when the daughter was five or six years old and ended when she was 12. In the most recent incident he had gotten into bed with the daughter, removed her boxer shorts, and inserted his finger in her vagina.
Defendant and the daughter recalled approximately 25 incidents of molestation. In approximately half of those incidents, he had rubbed his penis against her vagina. On the same number of occasions, he had fondled her vaginal area using his finger. He had rubbed his daughter's chest every time. He had never ejaculated. He had rubbed his daughter's buttocks and had placed her hand on his penis.
Defendant said that on one occasion, he had molested his 10- or 11-year-old niece at a motel.
Defendant contends the trial court erred when it admitted evidence of his prior sexual misconduct involving his daughter and niece pursuant to Evidence Code sections 1101, subdivision (b), and 1108. He argues: (1) Evidence Code section 1108 violates the due process clause of the United States Constitution, (2) Evidence Code section 1101 did not make the evidence admissible to prove his intent, and (3) his Evidence Code section 352 objection should have been sustained. None of these arguments has merit.
Defendant recognizes that his due process challenge to Evidence Code section 1108 was rejected by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 907, and that this court is bound to follow Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He raises the issue to preserve it for further review.
We next consider defendant's argument that section 1101, subdivision (b), did not make the prior molestations admissible because they were too dissimilar to prove his intent, motive, or knowledge. The argument has no merit.
Defendant acknowledged that he had no real relationship with R.S.'s mother or grandmother, yet he made R.S. the focal point of his life. He provided her some videos, toys, and computer programs for children; he took care of her, even when he was sick; he did homework with her; and he buttoned her up after she used the bathroom.
In short, defendant treated R.S. as if she were his daughter -- so much so that during his police interview, he referred to his biological daughter as his "other daughter." Thus, evidence on how he had treated the biological daughter was highly probative of his intent with R.S.
Contrary to defendant's contention, the fact the sexual conduct with the biological daughter had been far more extensive (e.g., digital penetration, his rubbing his penis on her vagina, and her touching his penis) did not mean that it was irrelevant to defendant's intent with R.S. The differences were readily explained by the fact that, unlike the single episodes involving R.S. and his niece, the molestations of the biological daughter had continued for many years. The sexual acts were sufficiently similar to support an inference that defendant probably harbored the same intent in each instance. (People v. Robbins (1988) 45 Cal.3d 867, 880; People v. Ewoldt (1994) 7 Cal.4th 380, 402.) No more was required.
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, original italics.)
Defendant has not shown that admission of the prior acts was arbitrary, capricious, or patently absurd. He claims the evidence was prejudicial because it was (1) "far more inflammatory" than the present charges, and (2) was "dissimilar" to the present acts. (Citing People v. Ewoldt, supra, 7 Cal.4th at pp. 404-406, and People v. Harris (1998) 60 Cal.App.4th 727, 737.) "The governing test, however, evaluates the risk of 'undue' prejudice, that is, '"evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,"' not the prejudice 'that naturally flows from relevant, highly probative evidence.' [Citation.]" (People v. Padilla (1995) 11 Cal.4th 891, 925, italics omitted, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Against a backdrop of evidence that defendant had pulled down R.S.'s pants and touched her vagina, evidence that he had molested his biological daughter 25 times in six years did not tend "uniquely" to evoke an emotional bias against him. (See People v. Padilla, supra, 11 Cal.4th at p. 925.) To the extent defendant's far more extensive conduct with the daughter was damaging, it was because it was relevant and highly probative of his intent during all of his dealings with R.S. (Ibid.) There was no abuse of discretion.
Defendant contends the trial court erred when it restricted the expert testimony of defense psychiatrist Dr. Matthew Soulier. He claims Dr. Soulier should not have been precluded from offering his opinion as to whether good or bad techniques were used during the MDIC interview. This claim is not properly before us.
Defendant filed a motion to admit expert testimony on psychological factors affecting a child witness's suggestibility, memory, and abilities to perceive and to communicate. Relying on United States v. Rouse (8th Cir. 1977) 111 F.3d 561, the motion sought to present expert testimony concerning "the ways in which the reliability of children's allegations of physical or sexual abuse may be tainted by adult questioning practices that suggest false answers or even implant false memories." (Id. at p. 570.) The motion purported to eschew the presentation of testimony "that a practice of suggestibility had been employed by the interviewer," because such evidence had been excluded in Rouse. (See id. at pp. 570-571.) The motion argued: "The type of expert testimony found admissible in Rouse is exactly the type of testimony Defendant moves to be admitted here." (Underscoring in original, italics added.)
Attached to defendant's motion was a written summary of the expected testimony of Dr. Soulier. The summary stated: "Dr. Soulier has reviewed the police reports and the MDIC interview of [R.S.] by Fiona Tuttle. [¶] Overall, he believes that the MDIC interview was conducted properly. There are some issues that could have led to confusion or mischaracterization of the events [R.S.] experienced. It appears that [R.S.] came to the interview with preconceived expectations about what had been alleged and what she was supposed to say. For example, [R.S.] knew that Christine [W.] had confronted [defendant] and had assaulted him. The concern is that the situation had already been presented to [R.S.] as one in which the adults had gone to her defense for something that [defendant] had done wrong. [Defendant] had been portrayed as a villain and the other adults had been portrayed as her protectors. Putting the events in this sort of context can have a profound effect on a child's memories and the way they are expressed."
The summary continued: "It is also clear from the recording that Ms. Tuttle had already been presented with the story from the adults' perspective" and "already knew what she thought had happened, which can lead to interviewer bias and its effects. For example, when [R.S.] indicates on multiple occasions that she does not want to answer questions, or when she answers questions in ways that are inconsistent with the adults' story, Ms. Tuttle implies that the interview cannot be finished without that information. Ms. Tuttle also provides positive reinforcement when [R.S.'s] story does match her preconception. This was combined with an apparent need on Ms. Tuttle's part to rush through the interview, and the fact that many of the questions Ms. Tuttle asked were closed-ended. In this way, [R.S.] was not allowed sufficient time or an opportunity to explain her own understanding of the events she was describing."
The summary continued: "Some of [R.S.'s] statements indicate outside influence on her description of the incident with [defendant]. For example, her use of the word 'tits' to describe breasts is unusual for a six-year[-]old child. At the same time, [R.S.] seemed to struggle with concepts of gender identity and the physical differences between boys and girls. This may indicate exposure to inappropriate television, movies, or adult conversation."
The summary concluded: "Dr. Soulier will be able to give general, educational testimony regarding the acquisition and retrieval of memories in children. He will also discuss techniques common to the interviewing of children and problems that can result in tainted testimony. Based on his research and experience, he will give examples of situations that can lead to false allegations of child abuse and sexual misconduct."
The trial court allowed Dr. Soulier to testify but limited his testimony as follows: "So I would allow that type of testimony, general factors that he's seen studies that have shown about [sic] children and their susceptibility to suggestion or pressure. [¶] But there's some areas that I think would go over and cross that line that I would not allow. I don't feel that he may give an opinion about whether in this case good or bad techniques were used. I think he can testify in general about what -- if there were studies about what's the best way to interview children, and then counsel are free to argue that. I think it would be improper for him to look at this interview and say whether it was a good or bad job, whether good techniques or bad techniques were used, and I think it is improper to make opinions about the facts of this particular case. I think that goes into the province of the jury and becomes speculative. [¶] . . . [¶] I won't allow any opinions to be made about this particular interview, period. I think it goes beyond his expertise. The jurors can see it, and you can argue it. And it doesn't go beyond the common experience of the average person."
As noted, defendant's motion purported to seek admission of expert testimony within the confines of United States v. Rouse, supra, 111 F.3d 561, which had upheld the exclusion of expert opinion that a suggestible practice or practices had been employed in the particular case. (Id. at p. 571.) However, Dr. Soulier's proffered testimony included assertions that R.S. had been subjected to three different suggestive influences: (1) the "situation had already been presented to [R.S.] as one in which the adults had gone to her defense for something that [defendant] had done wrong;" (2) the interviewer "ha[d] already been presented with the story from the adults' perspective" and "already knew what she thought had happened;" armed with this information the interviewer (a) implied that the interview could not end until R.S. divulged consistent information, (b) provided positive reinforcement when R.S.'s story does match her preconception; and (c) limited R.S. to closed-ended questions that precluded her from explaining her own understanding of the events; and (3) R.S. may have been exposed to inappropriate television, movies, or adult conversations.
Defendant's motion did not acknowledge that the foregoing evidence exceeded the scope of Rouse or argue for its admission notwithstanding Rouse.
Having persuaded the trial court to follow Rouse, and having thus obtained the admission of much of his expert's testimony, defendant argues for the first time on appeal that the trial court erred by failing to follow newer out-of-state decisions that "take a broader view and [are] less restrictive of the admissibility of this type of evidence" than was Rouse. (E.g., State v. Speers (Ariz.Ct.App. 2004) 98 P.3d 560, 562; State v. Wigg (Vt. 2005) 889 A.2d 233, 241; Clark v. State (Fla.Dist.Ct.App. 2007) 969 So.2d 573, 575.) Under these authorities, expert testimony evaluating the interview techniques used in a particular case is admissible on the theory that it involves an area of expertise beyond the ken of the average layman. (State v. Speers, supra, at pp. 566-567.)
Because defendant did not specifically raise this ground of admissibility, he is precluded from complaining on appeal. (Evid. Code, § 354, subd. (a); People v. Fauber (1992) 2 Cal.4th 792, 854; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640; People v. Frye (1985) 166 Cal.App.3d 941, 950-951.)
In any event, it is not reasonably probable that defendant could have fared any better had the disputed portion of Dr. Soulier's testimony been admitted. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
First, although Dr. Soulier's proffered testimony raised the possibility that R.S.'s memory had been influenced in unspecified ways by her perception of various adults and their responses to the molestation charges, the proffer did not attempt to determine the extent to which this may have occurred and the jury could only speculate as to the extent to which the testimony may have been tainted.
Second, even if the MDIC interviewer's advance knowledge of the incident had shaped R.S.'s responses to her, and the interviewer's alleged rush through the interview had curtailed R.S.'s ability to explain events to her, any claim of prejudice is speculative because R.S. appeared at trial and knowledgeable defense counsel cross-examined her to his evident satisfaction. There is no suggestion that the seven-year-old victim was so locked in to her responses from the MDIC interview that she was unwilling to give defense counsel a different answer where she believed the facts warranted.
Finally, even if R.S.'s vocabulary and her "struggle" with gender identity and physical differences between girls and boys had stemmed from inappropriate television, movies, or adult conversation, the proffer did not indicate the degree to which those sources had tainted her testimony and the jury could only speculate as to whether, or to what extent, that may have occurred. On this record, the trial court's application of Rouse, in lieu of more recent out-of-state authority, could not have been prejudicial.
Defendant contends his statement to police was improperly admitted because he was subjected to custodial interrogation but had not been advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda)). We are not persuaded.
At an Evidence Code section 402 hearing, the following evidence was adduced:
Placer County Sheriff's Detective Ken Ferreira contacted defendant on May 8, 2008. Ferreira and his partner, Detective Steve Slattery, met defendant in the parking lot of a hotel in Truckee. The detectives were dressed in casual clothing with their guns concealed and they arrived in an unmarked car. Ferreira identified himself to defendant as a sheriff's employee. Defendant said he knew why the detectives were there.
Defendant invited the detectives into his hotel room. Before entering, Detective Ferreira told defendant that he was not under arrest. Inside the hotel room, defendant and Ferreira sat in chairs. Detective Slattery leaned or sat on a counter by a television. No one blocked the door. Ferreira reminded defendant that he was not under arrest and told him that he was free to leave. Defendant appeared to understand these comments and appeared to be comfortable during the casual conversation with the detectives. Ferreira estimated that the interview lasted 30 to 45 minutes.*fn3
Defendant discussed his touching of the victim. While Detective Ferreira was present, defendant wrote an apology letter to the victim. At one point, Detective Slattery left the room. After the letter was written, defendant discussed the possibility of his going to Florida, where his mother evidently resided, because he "couldn't stay in the same environment" after having been "accosted by a co-worker."
At the end of the interview, both detectives left the hotel room. They went to the parking lot, discussed what they had learned in the interview, and made the decision to arrest defendant. Once that decision was made, Detective Ferreira believed that defendant was not free to leave.
The trial court ruled it was "pretty evident" that defendant was not in custody during the questioning. The court noted that defendant had invited the officers up to, and inside, the hotel room. The officers were in plain clothes, not in uniform. The hotel room was not a police station or an otherwise coercive environment. The conversation was casual and there was no evidence that the interview was threatening or that defendant was intimidated. The court ruled that the interview and the apology letter were completed before the officers decided to arrest defendant. Defendant's motion to suppress the statement and the apology letter were denied.
Miranda warnings are required when a suspect is subjected to "custodial interrogation," which is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444, fn. omitted; Oregon v. Mathiason (1977) 429 U.S. 492, 494 [50 L.Ed.2d 714, 719].)
"Miranda warnings are required 'as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest."' [Citation.] This determination presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial court's factual findings, but independently determine whether the interrogation was custodial. [Citation.]" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)
Where no formal arrest has occurred, courts examine all circumstances surrounding the interrogation in determining whether there was custody for Miranda purposes. (Thompson v. Keohane (1995) 516 U.S. 99, 112 [133 L.Ed.2d 383, 394].) The issue is whether a reasonable person in defendant's position would have felt he or she was in custody. (People v. Stansbury (1995) 9 Cal.4th 824, 830.)
In this case, the interview occurred inside defendant's hotel room into which he had invited the officers. Detective Ferreira twice told defendant that he was not under arrest and once told him that he was free to leave. The door was not blocked. The detectives were dressed in casual clothes and did not display their weapons. No decision to arrest defendant was made until the interview was concluded and the detectives left the hotel room. Defendant's reliance on Orozco v. Texas (1969) 394 U.S. 324 [22 L.Ed.2d 311], in which one officer testified that, "[f]rom the moment he gave his name," the suspect "was not free to go where he pleased but was 'under arrest,'" is misplaced. (Id. at p. 325.)
Moreover, defendant did not appear to believe that he was going to be arrested, because he discussed his plans to go to Florida. "Although 'the . . . determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by . . . the person being questioned' [citation], defendant's comments reinforce our view that a reasonable person in his position would have felt free to leave." (People v. Leonard (2007) 40 Cal.4th 1370, 1401.)
We cannot say as a matter of law that any reasonable person in defendant's position would have felt that he or she was in custody, even though neither officer said or implied as much or acted in accordance therewith, and even though defendant personally entertained no such belief even after having written an apology letter. No Miranda advisement was required, and defendant's unadvised statements were properly admitted into evidence.
Defendant contends the trial court erred by imposing both a five-year enhancement attributable to count one (§ 667.6, subds. (a), (e)(5) & (6)) and a five-year enhancement attributable to count five (§ 667.51, subds. (a) & (b)). He argues the imposition of two enhancements is (1) contrary to People v. Jones (1993) 5 Cal.4th 1142 and People v. Flournoy (1994) 26 Cal.App.4th 1695, and (2) violates Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. Neither point has merit.*fn4
Section 667.6 states in relevant part: "(a) Any person who is convicted of an offense specified in subdivision (e) and who has been convicted previously of any of those offenses shall receive a five-year enhancement for each of those prior convictions. [¶] . . . [¶] (e) This section shall apply to the following offenses: [¶] . . . [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5."
"Section 667.6 was enacted by the Legislature in 1979 in order to increase, in certain circumstances, the punishment for persons convicted of serious sex offenses. [Citation.]" (People v. Flournoy, supra, 26 Cal.App.4th at p. 1698.)
Count one is a violation of section 288, subdivision (b); counts two, three, and five are violations of section 288, subdivision (a). Defendant's prior conviction is a violation of section 288.5. By its terms, section 667.6 mandated a five-year enhancement for count one and was inapplicable to counts two, three, and five.
Section 667.51 states in relevant part: "(a) Any person who is convicted of violating Section 288 or 288.5 shall receive a five-year enhancement for a prior conviction of an offense specified in subdivision (b). [¶] (b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or 289 . . . ."
By its terms, section 667.51 is applicable to all four of defendant's present convictions. The trial court imposed it only with reference to count five.
"[S]section 667.51 was enacted as part of 1981 legislation which addressed the serious problem of sexual abuse of children. Chapter 1064 increased the determinate sentence for a lewd act with a child under fourteen to three, six, or eight years (§ 288, subds. (a) & (b)) and added new section 1203.066 denying probation and suspended sentences to certain violators of section 288. New section 667.51, in addition to imposing a five-year enhancement, provided a fifteen-year-to-life sentence where the person had served two or more prior terms for sex offenses, and denied early parole. At the same time the Legislature repealed the statutes establishing a commitment and treatment program for mentally disordered sex offenders [citation], added to the Penal Code section 1364 providing that a person convicted of a section 288 crime shall not be entitled to a hearing to determine mental disorder [citation], and amended section 800 of the Penal Code to increase the statute of limitations for a section 288 offense. [Citation.] Thus the legislative history clearly indicates an intent that certain sex crimes, particularly those involving children, are to be punished more severely than they were under the former statutory scheme." (People v. Vargas (1985) 175 Cal.App.3d 271, 276-277.)
Defendant relies on People v. Jones, supra, 5 Cal.4th 1142, which held that the trial court erred in imposing separate enhancements pursuant to sections 667, subdivision (a), and 667.5, subdivision (b), based upon the same prior conviction. Jones relied in part on section 667, former subdivision (b) (now subdivision (a)(2)), which states: "This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this subdivision to apply." Jones construed this provision to mean that "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones, supra, at p. 1150.)
People v. Flournoy, supra, 26 Cal.App.4th 1695, on which defendant also relies, involved a section 667.6 enhancement and a section 667, subdivision (a), enhancement. Following Jones, Flournoy invalidated the former because section 1385, subdivision (b), barred invalidating the latter. (Id. at pp. 1699-1702.)
Jones and Flournoy are distinguishable because no provision comparable to section 667, subdivision (a)(2), is operative in this case. (People v. Coronado (1995) 12 Cal.4th 145, 155 ["nothing in Jones suggests that section 667's limitation on cumulative enhancements may apply where, as here, no enhancement under section 667 has been imposed"].)
Jones supported its conclusion by observing, "If a prior felony is 'violent' enough to qualify for an enhancement under section 667.5, it will a fortiori be noxious enough to qualify as 'serious' under subdivision (a) of section 667, and will almost always have resulted in a prison term. The result is that five-year enhancements will become eight-year enhancements in all but a very few cases. [Citations.] If the drafters of Proposition 8 meant to confer eight-year enhancements on those who previously committed serious felonies, rather than five-year enhancements, they could have done so by repealing section 667.5 and providing for the longer enhancement in section 667." (People v. Jones, supra, 5 Cal.4th at p. 1150.)
Jones's observation would have been pertinent had the trial court imposed both enhancements based upon count one. Because a present section 288, subdivision (b), conviction supports both enhancements, the result would have been that the five-year enhancement would become a 10-year enhancement. (People v. Jones, supra, 5 Cal.4th at p. 1150.)
The trial court avoided that result by attributing the section 667.51 enhancement only to count five. Because section 667.51 and 667.6 are status enhancements, the court properly imposed each enhancement just once. (People v. Coronado, supra, 12 Cal.4th at p. 156.)
Defendant contends the trial court's "attributing the [section] 667.51 enhancement to a particular count is an improper factual determination" under Cunningham v. California, supra, 549 U.S. at page 275 . . . . He relies on the trial court's comment at the hearing on correction of sentence that "the prior of [section] 667.6 deals specifically with the allegation in Count One where someone has a prior where a defendant has been convicted of a [section] 288(b) [offense], but the  section 667.51 prior would be more applicable to Count Five, for instance, where he touched her breast." We are not persuaded.
"It is important to recognize that, under the line of high court decisions beginning with Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]], and culminating in Cunningham, supra, 549 U.S. 270 . . . , the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is 'legally essential to the punishment' [citation], that is, to 'any fact that exposes a defendant to a greater potential sentence' than is authorized by the jury's verdict alone [citation]. 'The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede).' [Citation.]" (People v. Black (2007) 41 Cal.4th 799, 812 (Black II), italics omitted.)
Defendant's Cunningham argument fails because the trial court's gratuitous comments about the facts of count five were not legally essential to the increased punishment. (See Black II, supra, 41 Cal.4th at p. 812.) The facts the jury determined in the course of convicting defendant on counts two, three, and five, and in finding the section 667.51 allegation true, were sufficient to support the enhancement. The trial court made the legal determination that count one should not be used to support the section 667.51 enhancement. No further factual determination, such as whether defendant had touched the victim's breast, was required.
Thus, the trial court's oral discussion of the section 667.51 enhancement in connection with count five, which it sentenced concurrently, as opposed to count three, which it sentenced consecutively, did not cause any prejudice. The abstract of judgment correctly lists the time imposed for the enhancement, and it properly does not attribute it to count five, as opposed to count three. Thus, it is undisputed that the five-year term is to be served consecutive to count three.
The judgment is affirmed.
BLEASE, Acting P.J.