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In re Vaquera

California Court of Appeals, Fourth District, Third Division

August 28, 2019

In re OSCAR MANUEL VAQUERA on Habeas Corpus.

          Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County No. 12NF0653, David A. Hoffer, Judge. Petition denied.

          Sharon Petrosino, Public Defender, Miles David Jessup and Matthew Darling, Deputy Public Defenders for Petitioner.

          Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Paige B. Hazard and James M. Toohey, Deputy Attorneys General for Respondent.

          OPINION

          MOORE, ACTING P. J.

         Penal Code section 667.61 (the “One Strike” law) provides that if a defendant is convicted of a designated sex offense, and there is a finding of one or more aggravating circumstances, then the court shall impose a sentence of either 15 or 25 years to life.[1] If a designated sex offense is committed against multiple victims, the default sentence is 15 years to life. (§ 667.61, subd. (b).) But if multiple victims are under 14 years of age, the sentence must then be 25 years to life. (§ 667.61, subd. (j)(2).)

         Here, the People filed an information alleging petitioner Oscar Manuel Vaquera committed a lewd or lascivious act against John Doe number one and John Doe number two, who were both children under 14 years of age. (§ 288, subd. (a).) These are designated offenses under the One Strike law. (§ 667.61, subd. (c)(8).) As to each count, the People alleged that Vaquera committed the crime “against more than one victim.” The jury convicted Vaquera of both counts and found true the multiple victim allegations. The court imposed a concurrent sentence of 25 years to life.

         There are pleading and proof requirements under the One Strike law. (§ 667.61, subd. (f).) Here, the information complied with the statute. But at issue in this habeas corpus proceeding is a due process question: whether the information gave Vaquera fair notice of the possibility of a 25-year-to-life sentence. The multiple victim allegations in the information referred to section 667.61, subdivision (b), which designates the 15-year-to-life default sentence, rather than subdivision (j)(2), which designates the 25-year-to-life exception when the victims are under 14 years of age.

         We find no due process violation. The facts alleged in the information, as well as the 25-year-to-life exception under section 667.61, subdivision (j)-which is specifically mentioned within section 667.61, subdivision (b)-gave Vaquera fair notice that he was subject to a sentence of 25 years to life.

         Thus, we deny Vaquera's petition for a writ of habeas corpus.

         I

         FACTS AND PROCEDURAL BACKGROUND

         In March 2012, during a child pornography investigation, police executed a search warrant at an Anaheim apartment. A family with two teenage boys lived in the apartment. Vaquera lived there as a friend of the family. The police discovered that Vaquera had repeatedly videotaped the boys while they were in the bathroom. The police interviewed Vaquera; he made several incriminating admissions.

         The Information

         In October 2012, the People filed an information. Count one alleged that Vaquera committed a lewd and lascivious act upon John Doe number one, “a child under the age of fourteen (14) years, ” sometime between October 18, 2007, and October 17, 2008. (§ 288, subd. (a).) Count two alleged that Vaquera committed a lewd and lascivious act upon John Doe number two, “a child under the age of fourteen (14) years, ” sometime between May 1, 2011, and March 1, 2012. (§ 288, subd. (a).) Counts three, four, and five alleged child pornography charges. (§ 311.4, subd. (d).)

         The information stated: “As to Count(s) 1, it is further alleged pursuant to Penal Code sections 667.61(b)/(e)(5), that in the commission of the above offense, [Vaquera] committed an offense specified in Penal Code section 667.61(c) against more than one victim.” The information stated: “As to Count(s) 2, it is further alleged pursuant to Penal Code sections 667.61(b)/(e)(4), that in the commission of the above offense, [Vaquera] committed an offense specified in Penal Code section 667.61(c) against more than one victim.” [2] The information further alleged that Vaquera engaged in substantial sexual contact with a child. (§ 1203.66, subd. (a)(8).)

         Trial Court Proceedings

         In June 2014, a jury found defendant guilty of the five charged crimes and found true the three sentencing allegations.

         In August 2014, the People filed a sentencing brief recommending that Vaquera receive a sentence of 30 years to life. The People argued that the two multiple victim allegations each provided for a mandatory sentence of 15 years to life. The People urged the court to run the terms on counts one and two consecutively.

         In September 2014, the People filed a second sentencing brief this time recommending that Vaquera receive a sentence of 40 years to life. The People argued that the multiple victim allegation as to count one provided for a mandatory sentence of 15 years to life. The People now argued that the multiple victim allegation as to count two provided for a mandatory sentence of 25 years to life. The People urged the court to run the terms on counts one and two consecutively.

         On September 26, 2014, the trial court sentenced Vaquera to a total prison term of 25 years to life. The court imposed a 25-year-to-life sentence as to count two. The court imposed a 15-year-to-life sentence as to count one, to run concurrent to count two. The court stayed (§ 654), or ran concurrent, the prison ...


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