People v. Zaldana

          APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA468653 Mark S. Arnold, Judge. Affirmed and remanded.

          Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

          BIGELOW, P. J.

         Following his conviction for six counts involving the molestation of his two daughters when they were both under the age of 14, defendant Bedavid Zaldana was sentenced to 75 years to life, consisting of five consecutive terms of 15 years to life and one 15-year-to-life term stayed. Five of the six counts fell within the “One Strike” law, Penal Code section 667.61, ^[1] because the jury found the additional aggravating circumstance that more than one victim was involved in each offense. (§ 667.61, subd. (e)(4).) On appeal, Zaldana argues this “multiple victim” finding can only justify two terms of 15 years to life, one for each victim. We reject his contention, joining the line of cases that have found the same argument lacked merit.

         We conclude, however, Zaldana's sentence was unauthorized under section 667.61. Subdivision (j)(2) mandates an indeterminate sentence of 25 years to life for an offense falling within the One Strike law when the victim is under the age of 14. The five One Strike counts against Zaldana fell within this provision, so the trial court was required to impose five terms of 25 years to life. We find Zaldana had constitutionally sufficient notice of this possible longer sentence from the information. Because the court had discretion to run three of those 25-year-to-life terms concurrently or consecutively, we remand for resentencing.

         BACKGROUND

         The two victims in this case were Zaldana's daughters, Su.Z. and Sa.Z. Zaldana abused his younger daughter Sa.Z. once when she was eight years old. They were watching T.V. when Zaldana touched her vagina beneath her dress and inserted one finger.

         He abused his older daughter Su.Z. multiple times when she was ages nine through 11. The first time it happened, they were watching T.V. when he rubbed her inner thigh. He touched her in a similar way more than 20 times, every time she visited him. He also touched her breast and rubbed her vagina over and under her clothing. Once, while she was sleeping, he put a hand over her mouth, touched her breast, and inserted his penis into her vagina approximately three inches. On another occasion, Su.Z. was changing clothes and Zaldana touched her bare breast. The last incident occurred when Su.Z. was 12. Zaldana closed her in a room and blocked the door with a shelf. When she tried to open a window, he pinned her to a wall and touched her breast. She kicked him and ran away.

         The girls disclosed the abuse to their mother and brother about three months after this last incident. Zaldana was arrested and charged with six counts: oral copulation or sexual penetration of Sa.Z. (§ 288.7, subd. (b), count 1); lewd act on Sa.Z. (§ 288, subd. (a), count 2); forcible lewd act on Su.Z. (§ 288, subd. (b)(1), counts 3 & 6); and lewd act on Su.Z. (§ 288, subd. (a), counts 4 & 5). For counts 2 through 6, the information alleged, “within the meaning of Penal Code section 667.61(b) and (e)(4), ” Zaldana “committed an offense specified in Section 667.61(c) against more than one victim.”

         Following trial, a jury found Zaldana guilty of all counts and found the multiple victim allegation true as to the five counts for violations of section 288, subdivisions (a) and (b). The court sentenced him to 75 years to life, consisting of 15 years to life for the violation of section 288.7 in count 1, 15 years to life for the violation of section 288, subdivision (b)(1) involving Sa.Z. in count 2 stayed pursuant to section 654, and four consecutive terms of 15 years to life for the violations of section 288, subdivisions (a) and (b) involving Su.Z. in counts 3 through 6. At sentencing, the trial court stated Zaldana “never deserves to be out in public again” and “wish[ed]” his sentence “could be longer.”

         DISCUSSION

         I. Five “One Strike” Terms Were Permitted Based on the Multiple Victim Aggravating Circumstance

         The One Strike law creates an alternative, harsher sentencing scheme of either 15 or 25 years to life for certain enumerated sex offenses accompanied by additional specified factual findings. (§ 667.61; see People v. Mancebo (2002) 27 Cal.4th 735, 738 (Mancebo).) Lewd conduct and forcible lewd conduct on a child under the age of 14 in violation of section 288, subdivisions (a) and (b) are included in the list of qualifying One Strike crimes. (§ 667.61, subd. (c)(4), (8).) Subdivision (e)(4) contains a multiple victim aggravating circumstance: “The defendant ...