(Los Angeles County Super. Ct. No. BA316526) APPEAL from a judgment of the Superior Court of Los Angeles County. Larry Paul Fidler, Judge. Affirmed in part; reversed and remanded in part.
The opinion of the court was delivered by: Armstrong, Acting P. J.
CERTIFIED FOR PUBLICATION
Appellant Valentin Carbajal was convicted, following a jury trial, of three counts of lewd acts on a child in violation of Penal Code*fn1 section 288, subdivision (a). The jury was unable to reach verdicts on 10 other counts, and the trial court declared a mistrial. A retrial followed, and appellant was convicted of one count of lewd acts, one count of forcible rape in violation of section 261, subdivision (a)(2), three counts of attempted forcible rape in violation of sections 664 and 261, subdivision (a)(2), and four counts of forcible oral copulation in violation of section 288a, subdivision (c)(2). The jury found true the allegation that appellant committed an offense specified in section 667.61 against more than one victim. The trial court sentenced appellant to a total of 83 years to life in state prison, which included two consecutive terms of 15 years to life imposed pursuant to section 667.61.
Appellant appeals from the judgment of conviction, contending that the true finding on the section 667.61 allegation must be reversed. We agree. We reverse the finding and remand for resentencing.
The underling facts can be briefly summarized, as they are not relevant to the issue on appeal. The victims in this case were Z. C. and Jessica R. The two girls are stepsisters. Appellant is Z.C.'s biological father. Appellant was married to Jessica's biological mother, Ruth. At the time of the offenses in this case appellant, Z.C., Jessica, and Ruth all lived together.
In the third amended information in this case, appellant was charged with 13 counts of sexual offenses against Z.C. and Jessica. Counts 10, 11 and 12 alleged that appellant committed lewd acts upon a child in violation of section 288, subdivision (a). The victim of those counts was Jessica. The victim in the other counts was Z.C. The information contained the following allegation: "It is further alleged, within the meaning of Penal Code sections 667.61(a), (b) and (e), as to defendant, VALENTIN CARBAJAL, as to counts(s) 1, 2, 6, 7, 8, 9, 10, 11, 12, and 13 that the following circumstances apply: The defendant in the present case committed an offense specified in Penal Code section 667.61, subdivision (c), against more than one victim."
The trial court instructed the jury about this allegation as follows: "If you find the defendant guilty of two or more sex offenses, as charged in Counts 1, 2, 6, 7, 8, 9, 10, 11, 12 & 13, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved."
After deliberating, the jury reached a guilty verdict on counts 10, 11 and 12, all involving Jessica as the victim. The jury could not reach verdicts on the other 10 counts, which involved Z.C. as the victim. The foreperson told the court that he/she did not believe that further deliberations would be of assistance. The court polled the jury and all the jurors agreed with the foreperson.
After a brief discussion with counsel, the trial court stated: "I will take the verdict and then I will declare a mistrial on the remaining counts." The court then directed the jury foreperson to hand "the verdict forms where you have been able to arrive at a verdict" to the bailiff.
After reading the verdict forms, the court stated: "This is certainly interesting. The jury has arrived at guilty verdicts on Counts 10 [alleging Jessica R. as the victim], 11 [alleging Jessica R. as the victim], and 12 [alleging Jessica R. as the victim]. The named victim is Jessica R. in each count. They have also found a true finding on the special allegation against more than one victim. I don't know if they can do that without a conviction. I would like to think about that. I don't know the answer to that."
After a brief consultation with counsel, the court spoke to the jury foreperson: "Juror Number 8, I have a question. Based upon your verdicts that I've taken a look at, as to counts 10, 11, and 12, you also signed a true finding on the special allegation, which calls for the offenses to be committed against more than one victim. Is that what you wanted to do?" Juror No. 8 replied: "No, sir. I thought it was one or more counts." The court stated: "No. It has to be against one or more victims. With that in mind, what I am going to do, I am going to hand this form back to you. I'm going to ask the jury to go back in, and if you did not mean to find that as true, because I've just explained it to you, to make sure that that reflects your verdict. Once you're done, you are done with that, come back out."
The jury returned to the jury room and, in less than five minutes, returned to the courtroom. The court, apparently surprised by the jury's quick return, made the following statement: "I think I can guess what they have done. They have gone in; they signed it 'not true finding.' The problem is that's not what they should have done." The court continued: "It will be double jeopardy. Otherwise, the truth is if they are hung, the court should not take any verdict on that count because it's inappropriate." The court concluded: "I think what it is, since they are hung, we probably should not enter a finding on that at this point."
The court then addressed the jury:
"Okay. Ladies and gentlemen, I have given this some thought. Since you are unable to arrive at a decision on some of the counts, it is my belief that you should not be making a finding on that allegation unless two different victims were named.
"Now, we know what the verdicts are. You signed them, and I have read them, and counsel is aware of it. It appears to me the appropriate thing to do is - as with the other charges, is to not enter a finding. Since you are unable to arrive at a verdict, you can't find that to be true unless your belief is unanimously - if unanimously you believe not just as to the counts that you return but the entire case that there is not more than one victim.
"I mean, technically, you could come to that finding without arriving at the other counts. I think legally they could, but you would have to make a finding unanimously that there is only one victim. If you are not able to do that - if you are not able to do that, then what you should do is simply not fill in that form.
"That's correct, if you believe unanimously that that finding is not true, it's not based on the three verdicts that you returned, it's based on the entire case because you are unable to arrive at a verdict on many of the counts. You understand what I am saying?
"That enhancement - I am not going to explain anymore.
"Let's assume for a moment you had arrived at verdicts, and the verdicts named more than one victim, that's all I could say, you then would have to make a determination whether this allegation was true or not true. The problem is by signing that verdict form, you still have counts where you have been unable to arrive at a verdict, and those verdict forms do name more than one victim.
"So I sort of, I don't want to tell you what to do. I am sort of giving you what I believe the law require - you have three options: You could find it to be true, which at this point you originally signed, but you have agreed it was a mistake based upon a misunderstanding. I think I may ...