California Court of Appeals, Second District, Eighth Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Cal.Rptr.3d 727] APPEAL from a judgment of the Superior Court
of Los Angeles County. Mark S. Arnold, Judge. Affirmed and
remanded. (Los Angeles County Super. Ct. No. BA468653)
Place, Los Angeles, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Lance E. Winters, Assistant
Attorney General, Michael R. Johnsen and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
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, 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.
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.
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.
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.
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 [256 Cal.Rptr.3d
728] 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 ...