THE PEOPLE v. JESUS ARMANDO PICENO

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JESUS ARMANDO PICENO, Defendant and Appellant.

B214346

Decided: February 28, 2011

Lawrence R. Young & Associates and Lawrence R. Young for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Jesus Armando Piceno appeals from the judgment entered following his convictions by jury on count 1 - forcible lewd act upon a child (Pen.Code, § 288, subd. (b)(1)),1 count 4 - lewd act upon a child (§ 288, subd. (a)), and three counts of oral copulation and/or sexual penetration with a child under 10 years old (§ 288.7, subd. (b)).  The court sentenced appellant to prison for three consecutive terms of 15 years to life, plus four years.   We affirm appellant's convictions, but vacate his sentence and remand the matter for resentencing with directions.

FACTUAL SUMMARY

1. People's Evidence.

a. The Testimony of Armando G.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that Armando G. (Armando) was born on April 24, 1997.   Appellant was his uncle.   Appellant lived at the home of Armando's aunt, and Armando would visit to play with his cousins.

Armando testified the first time appellant did anything to Armando was in “the last months like in August of 2006.”   Armando also testified the first time occurred when he was in the middle of the fourth grade and after Christmas, i.e., in January 2007.   During the first incident, Armando went to appellant's room and asked for a toy.   Appellant held Armando down on appellant's bed and, while Armando struggled, appellant orally copulated him (count 10), then, apparently using a condom, sodomized him (count 1).   Appellant told Armando not to tell his mother.

The last incident occurred in March 2007 or at the end of that month.   During that incident, appellant picked Armando up, carried him to a room next to the living room, and, using a condom, sodomized him (count 4) on the side of the bed.   Another uncle of Armando stopped at the door of the room, but Armando did not know if that uncle knew what appellant was doing.   Appellant had done something like to this Armando many times, but Armando did not have a distinct memory about any particular time.

Although Armando indicated the last incident occurred in March 2007 or at the end of that month, he also testified he remembered an incident that occurred in appellant's room just before Easter in 2007.   During that incident, appellant held Armando down on appellant's bed and, using a condom and a gel, sodomized Armando.   Appellant used a gel every time he sodomized Armando.

During one incident, appellant, in his room, grabbed Armando's hand and forced him to touch appellant's penis.   This happened sometime after the previously mentioned oral copulation and sodomy that occurred in about January 2007.

On one occasion, appellant pushed Armando into appellant's room.   Appellant closed the door, took his pants off, put his hands on Armando's head, and tried to push Armando's head towards appellant's penis in order to have Armando orally copulate him.   Armando escaped.   Armando testified he did not tell anyone in July 2007 what had happened because when appellant told Armando not to tell anything to his mother, Armando thought appellant was going to threaten her.   Appellant showed Armando pornographic magazines on multiple occasions.   Appellant orally copulated Armando on more than seven additional dates.   Appellant sodomized Armando more than 10 times, each time on a different day.

In July 2007, Armando told his mother that appellant was raping him.   Armando did not use the word rape, but said appellant “would hurt [Armando] in like a sexual way.”   Armando's father called the police the next morning.   Appellant hurt Armando sexually more than twenty times on separate days.   During cross-examination, appellant asked Armando if he had testified that there were close to 10 times or perhaps more than 10 times that appellant touched Armando or touched Armando's penis.   Armando replied yes.

During redirect examination, Armando testified to the effect that he thought he testified at the preliminary hearing that a couple of days after Valentine's day (in 2007), appellant orally copulated (count 8) and sodomized Armando while showing him a pornographic magazine.   Armando also testified at the preliminary hearing that a few days after June 24 (in 2007), appellant sodomized him.   Armando testified at the trial that he remembered this incident.

b. Appellant's Statements.

About 5:15 p.m. on July 17, 2007, Los Angeles County Sheriff's Detective Amber Montenegro interviewed appellant in jail, and appellant gave the following statement.

Appellant was in jail because Armando told Armando's parents that appellant had touched him.   That was all appellant knew.   When appellant's family confronted appellant about it, he was shocked.   Armando was lying.

Montenegro told appellant that a medical report corroborated Armando.   Appellant later indicated as follows.   Appellant orally copulated Armando once.   On “the last time,” appellant put his finger in Armando's “butt” (count 7) 2 or something like that.   Appellant later indicated he orally copulated Armando twice.   After the second time, appellant was walking out and his brother was walking towards the living room.

Appellant further indicated the following.   All of “it” happened during a three-month period when appellant was 17 years old.   There were four incidents.   The first time, Armando was on appellant's bed.   Appellant tried to pull him down, did not mean to touch him, but “it happened.”   The second time, after appellant was wrestling with Armando and others, the others left.   Armando sat on appellant and appellant touched Armando's “butt.”   Appellant “wasn't thinking right.”   The third time, appellant orally copulated Armando.   Appellant thought it was wrong and stopped.   The fourth time, Armando punched appellant in the back.   Appellant pushed Armando, spanked him, and felt weird again.   Appellant started touching him and, as it was happening, Armando forced appellant away.   Appellant was not thinking straight.   Appellant orally copulated Armando and put appellant's finger in Armando's “butt” on that occasion.   Appellant felt bad because he never told Armando that appellant was sorry.

2. Defense Evidence.

In defense, appellant, who was 21 years old at the time of the trial, denied ever touching Armando inappropriately, and various defense witnesses supported his denial.   Appellant made statements to Montenegro because appellant thought that Armando would be believed simply because Armando was a child, with the result appellant would go to prison.   Appellant initially denied to Montenegro that anything had happened, but later told Montenegro what she wanted to hear.

Appellant falsely told Montenegro that appellant had orally copulated Armando because appellant thought Montenegro would view appellant as cooperative.   Appellant thought that lying to Montenegro by telling her that appellant was molesting a child would help appellant get a better deal.   Appellant made up the alleged fact that “it happened” when he was 17 years old.   Appellant told Montenegro that appellant “stuck [appellant's] finger in [Armando's] butt” because appellant thought this would help appellant.

According to appellant, Armando's mother confronted him about what had happened.   She was shocked, upset, and crying.   Armando's mother told appellant that Armando said appellant had molested him more than a couple of times and, about five times, had engaged in oral sex with Armando and had done everything else.3

CONTENTIONS

Appellant claims (1) there is insufficient corroboration triggering application of the statute of limitations set forth in section 803, subdivision (f), (2) there is insufficient evidence supporting appellant's convictions, (3) appellant's confession to Montenegro was involuntary, (4) certain statements appellant made to Montenegro should have been excluded, and (5) appellant's sentence was excessive.

DISCUSSION

1. Section 803, Subdivision (f) Is Inapplicable and, In Any Event, There Is Sufficient Corroboration.

Section 803, subdivision (f) 4 sets forth an alternative one-year statute of limitations (measured from the date of a report of a sexual assault to law enforcement) for certain sexual offenses committed against a minor, provided, inter alia, (1) the limitation period of one of certain other otherwise applicable statutes of limitation has not yet expired and (2) there is independent evidence corroborating the victim's allegation.   Appellant claims there is insufficient corroboration.   We reject his claim.

As for count 1 (§ 288, subd. (b)(1)) and count 4 (§ 288, subd. (a)), section 803, subdivision (f), by its terms, does not apply unless “The limitation period specified in Section ․ 801.1 ․ has expired.”   As to each of counts 1 and 4, the limitation period of section 801.1, subdivision (a) (see fn. 4, ante ), applied with the result the prosecution of those two counts could commence any time before Armando's 28th birthday.   Armando was born on April 24, 1997;  therefore, prosecution of those counts could commence any time before 2025.   The limitation period of section 801.1, subdivision (a) has not yet expired;  therefore, section 803 is inapplicable to counts 1 and 4.

As for counts 7, 8, and 10 (each involving a violation of section 288.7, subdivision (b)), no statute of limitations applies to those counts, since a violation of section 288.7, subdivision (b) is punishable by imprisonment in the state prison for 15 years to life (§ 288.7, subd. (b));  therefore, a prosecution for that offense may commence at any time (§ 799;  see fn. 4, ante ).   Moreover, section 803, subdivision (f)(1) does not by its terms apply to a victim of a crime described in section 288.7.

Finally, even if section 803, subdivision (f) applied to all of the counts of which appellant was convicted, thereby requiring the previously mentioned corroboration, the evidence provided it.   The corroboration did not have to corroborate each allegation in the information or particularly corroborate any specific offense;  all that was required was that the victim's allegation be corroborated.  (People v. Ruiloba (2005) 131 Cal.App.4th 674, 683 (Ruiloba ).)   All of the offenses occurred in 2007 when Armando was either nine years old (counts 1, 4, 8, & 10) or 10 years old (count 7).   Armando testified, inter alia, that appellant orally copulated him.   Appellant admitted to Montenegro that appellant had committed four acts of oral copulation, and one act of digital anal penetration, upon Armando, who was 10 years old at the time of appellant's admissions.   Appellant's admissions of felonious sexual acts upon Armando in such circumstances corroborated all of Armando's allegations.  (Id. at p. 688.)   Appellant testified Armando's mother provided to him what was essentially a fresh complaint concerning appellant's

misconduct. (See People v. Manning (2008) 165 Cal.App.4th 870, 880.)   The above plus Irma's rebuttal testimony provided adequate corroboration.5

2. Sufficient Evidence Supported Appellant's Convictions.

Appellant claims there is insufficient evidence supporting his convictions.   He argues in essence that there was no evidence correlating a specific sexual act to a specific count in the information.6  However, we have set forth the pertinent facts in our Factual Summary, correlating evidence of a specific sexual act with a specific count.   Appellant's claim fails.

3. Appellant's Statements to Montenegro Were Not Obtained In Violation of Miranda.

a. Any Preadvisement Statement By Appellant that He Was An Illegal Alien Was Admissible.

The transcript of Montenegro's July 17, 2007 interview of appellant in jail reflects that, at the beginning of the interview, and prior to a Miranda 7 advisement, Montenegro introduced herself and obtained preliminary information concerning appellant's name, address, birth date, phone number, and employment.   Montenegro also asked appellant questions relating to his citizenship.8

Appellant argues the Miranda advisement was untimely.   Citing to page 174 of the clerk's transcript, which reflects a portion of the interview, appellant asserts that prior to any Miranda advisement and in violation of Miranda, Montenegro, when posing preliminary questions to appellant, elicited from him the incriminating fact that appellant was an illegal alien.

Appellant's argument is unavailing.   He failed to object to the admission of said alleged fact on Miranda grounds;  therefore, he waived the issue on appeal.  (People v. Holt (1997) 15 Cal.4th 619, 666-667.)   As to the merits, the burden is on appellant to demonstrate error from the record;  error will not be presumed.  (In re Kathy P. (1979) 25 Cal.3d 91, 102;  People v. Garcia (1987) 195 Cal.App.3d 191, 198.)   We have quoted at footnote 8, ante, the pertinent portion of the clerk's transcript cited by appellant.   Assuming it reflects appellant was born in Mexico and did not have a work visa, the cited page does not demonstrate he was an illegal alien, since it is common knowledge a naturalized citizen is not an illegal alien.   For all the cited page reflects, appellant could have been a naturalized citizen.

Moreover, nothing appellant cites indicates that, before Montenegro asked what appellant concedes were preliminary questions, Montenegro had reason to know the fact, if true, that appellant was an illegal alien or what appellant's response to Montenegro's questions would be.   The issue of whether appellant was an illegal alien was not directly related to any element of any crime of which appellant was convicted.   Any answer by appellant that he was an illegal alien was not preceded by interrogation for purposes of Miranda.  (Cf. People v. Bradford (1997) 14 Cal.4th 1005, 1034-1035;  see In re Jorge G. (2004) 117 Cal.App.4th 931, 950.)   Finally, there was overwhelming evidence of appellant's guilt as to the crimes of which he was convicted.   Even if evidence was admitted in violation of Miranda that appellant was an illegal alien, such evidence was harmless beyond a reasonable doubt.  (Cf. People v. Sims (1993) 5 Cal.4th 405, 447.)

b. Appellant Validly Waived His Miranda Rights.

After preliminary questions, Montenegro gave appellant a Miranda advisement.9  During the interview, Montenegro mentioned appellant had no criminal history.   Appellant's pertinent statements during the interview are reflected in our Factual Summary.

At a pretrial motion to suppress appellant's statements on the ground they were involuntary because they were obtained by promises of leniency, Montenegro testified as follows.   Throughout the interview and especially at its beginning, appellant was very quiet and Montenegro was talking.   Appellant was doing a lot of nodding in response to Montenegro's “questions an[d] statements,” but was not verbally speaking.   Appellant definitely appeared to understand what Montenegro was saying.   The court, which had read the transcript of the interview while listening to the tape thereof, denied the motion.

Appellant argues he did not waive his Miranda rights because he did not audibly respond to Montenegro's advisements that anything appellant said might be used against him in a court of law, and that appellant had a right to the presence of an attorney during questioning.   We disagree.

The prosecution bears the burden of demonstrating the validity of the defendant's waiver by a preponderance of the evidence.   In addition, although there is a threshold presumption against finding a waiver of Miranda rights, ultimately the question becomes whether the Miranda waiver was voluntary, knowing, and intelligent under the totality of the circumstances surrounding the interrogation.  (People v. Williams (2010) 49 Cal.4th 405, 425.)

The Miranda advisement here occurred after preliminary questions.   Montenegro testified appellant was very quiet during the beginning of the interview.   Montenegro was talking, appellant was frequently nodding in response to Montenegro's questions and statements and, while appellant was not orally speaking, he definitely appeared to understand what Montenegro was saying.   The exchange between Montenegro and appellant during the Miranda advisement as reflected in the clerk's transcript is consistent with Montenegro's testimony.   In particular, the exchange is consistent with appellant nodding his head in the affirmative in response to Montenegro's advisements that anything appellant said might be used against him in a court of law, and that appellant had a right to the presence of an attorney during questioning.   Appellant's Miranda waiver was voluntary, knowing, and intelligent under the totality of the circumstances.

c. Appellant's Statement Was Voluntary.

As mentioned, the trial court denied appellant's suppression motion.   The court, after a thorough discussion of the interview and appellant's statements to Montenegro, concluded, inter alia, that appellant's statements were voluntary.10  Appellant argues his statements should have been excluded “because they were made only after the suggestion of a promise of a lighter sentence if he confessed and was remorseful[.]” 11  We disagree.

First, it is the duty of a party to support the arguments in the party's briefs by appropriate reference to the record, which includes providing exact page citations.   Because this court has no duty to search the record for evidence, an appellate court may disregard any factual contention not supported by a proper citation to the record.  (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)

Moreover, a statement is involuntary when, among other circumstances, it was extracted by any sort of threats or obtained by any direct or implied promises, however slight.   Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the totality of the circumstances.   (People v. Jablonski (2006) 37 Cal.4th 774, 813-814.)   In reviewing the trial court's determinations of voluntariness, we apply an independent standard of review, accepting the trial court's factual findings provided they are supported by substantial evidence.  (Id. at p. 814.)

There is no dispute the 34-page transcript, which was admitted in evidence, accurately reflects Montenegro's taped interview of appellant, which said tape was admitted in evidence.   We have reviewed that transcript.   There is nothing improper in pointing out that a jury probably will be more favorably impressed by a confession and a show of remorse than by demonstrably false denials.   No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.   (People v. Carrington (2009) 47 Cal.4th 145, 174.)

“Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth.  (Ibid.;  People v. Hill (1967) 66 Cal.2d 536, 549 [‘When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper ․‘];  ․ see also Amaya-Ruiz v. Stewart (9th Cir.1997) 121 F.3d 486, 494 [finding no coercion in statements that ‘ “the ․ [c]ourt system will not forgive your lies,” ‘ and an exhortation to the suspect to tell the truth if he wants to receive ‘ “forgiveness” ‘].)” (People v. Williams, supra, 49 Cal.4th at p. 444.)   Moreover, the transcript does not reflect any impermissible express or implied promises of leniency.12  Having read the transcript of the interview, we agree with the trial court's inferences therefrom supporting its conclusion that appellant's statements were voluntary.   Appellant's argument fails, and he was not denied his right to a fair trial.

4. No Reversible Error Occurred in Admitting the Transcript In Evidence.

During Montenegro's interview of appellant, Montenegro made comments indicating appellant was in jail at the time of the interview.   Appellant also indicated as follows in response to preliminary questions.   Appellant sometimes did construction work like remodeling houses, but he did not work for a company.   Appellant had been doing construction work for “mostly a year and a half” after high school.   Appellant did framing and concrete work, and the pay was good.   Montenegro also inquired about appellant's citizenship.   Later, when discussing the offenses, Montenegro commented, “And little boys like that, they don't make stuff like this up.”

Appellant claims the trial court erroneously admitted in evidence the transcript of Montenegro's taped interview because the transcript contained (1) Montenegro's statement that appellant was then in jail, i.e., a statement which violated appellant's right to a fair and impartial trial, (2) appellant's statements he was mostly unemployed and was an illegal alien, i.e., statements excludable under Evidence Code section 1101, (3) Montenegro's statement that little boys do not make up statements, i.e., inadmissible expert testimony the admission of which violated appellant's right to due process, and (4) Montenegro's statement that appellant would obtain leniency if he confessed.

However, appellant waived these issues by failing to raise them during the trial.  (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7;  Evid.Code, § 353.)   Moreover, as to the merits, simply put, Montenegro's mere statement that appellant was in jail did not violate fundamental fairness or appellant's right to a fair and impartial trial.   Appellant never stated he was mostly unemployed, or that he was an illegal alien, and no such statements were admitted to prove character.   Montenegro's statement about little boys was admissible as part of his conversation with appellant.  (Evid.Code, § 356.)   Montenegro never gave appellant any promises of leniency if he confessed.   Finally, even if the trial court erred as claimed, any such error was harmless under any conceivable standard given the overwhelming evidence of appellant's guilt.  (Cf. People v. Watson (1956) 46 Cal.2d 818, 836;  Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

5. Remand for Resentencing Is Appropriate.

a. Pertinent Facts.

As mentioned, the jury convicted appellant on counts 1, 4, 7, 8, and 10.   Counts 1 and 10 involved a forcible lewd act upon a child (§ 288, subd. (b)(1)), and oral copulation (upon said child) (§ 288.7, subd. (b)), respectively, when he was in about the middle of the fourth grade (i.e., in about January 2007), count 8 involved oral copulation upon the child in about February 2007 (§ 288.7, subd. (b);  count 4 involved a lewd act upon the child in about March 2007 (§ 288, subd. (a)), and count 7 involved digital anal penetration of the child a few days after June 24, 2007 (§ 288.7, subd. (b);  see fn. 2, ante ).

During the sentencing hearing, the court discussed various aggravating and mitigating factors.   The court later stated, “The indicated with respect to counts 7, 8, 10, that is oral copulation of a child under 10 years, 15 years to life consecutive.   That is required pursuant to [section 667.6, subdivision (d) ]. And I understand the governing law because these were I would think we all agree forcible sex crimes committed on separate occasions.   That will be the sentence with respect to 7, 8, and 10.[¶]  With respect to counts 1 and 4, the court imposes the midterm, one-third the midterm of 6, two years in connection with each.  [¶] Counts 1 and 4, again that is consecutive.   These are lewd acts.   The same rule regarding consecutive sentences would apparently govern.   So the indicated sentence, 40 [sic ] years to life, plus four years.   These will be consecutive terms under the circumstances.”

In sum, fairly read, the record reflects the trial court, purportedly pursuant to section 667.6 subdivision (d), imposed a consecutive term of 15 years to life as to each of counts 7, 8, and 10.   The court also imposed a consecutive subordinate term of two years as to each of counts 1 and 4.13

b. Analysis.

Appellant claims his sentence was excessive, arguing there was no substantial evidence supporting various aggravating factors referred to by the trial court.   We have not discussed those factors because there is no need to reach that issue.

As mentioned, the trial court, purportedly pursuant to section 667.6, subdivision (d),14 sentenced appellant to prison for a full, separate, and consecutive term of 15 years to life on each of counts 7, 8, and 10 (each involving a violation of section 288.7, subdivision (b)).15  However, section 667, subdivision (d), by its terms, applies only to offenses specified in section 667, subdivision (e).   At the time of the commission of the 2007 offenses at issue in counts 7, 8, and 10, a violation of section 288.7, subdivision (b) was not an offense specified in section 667, subdivision (e);  therefore, the trial court erred in its sentencing as to those counts.

Moreover, the trial court, presumably pursuant to section 1170.1, subdivision (a), imposed a consecutive subordinate term of two years in prison as to each of counts 1 and 4. However, imposition of a consecutive subordinate term on counts 1 and 4 presupposes the selection of count 7, 8, or 10 as a principal term pursuant to section 1170.1, subdivision (a).   However, each of counts 7, 8, and 10 was punishable by an indeterminate term of 15 years to life.   “Offenses for which an indeterminate sentence of life imprisonment ․ can be imposed are not subject to section 1170.1.   Consequently there are no principal and subordinate terms to be selected. (§ 1168, subd. (b).)”  (People v. Neely (2009) 176 Cal.App.4th 787, 798.)   That is, an indeterminate term cannot be a principal term;  therefore, the trial court erred in its sentencing as to counts 1 and 4.16 Accordingly, we will remand the matter for the limited purpose of resentencing.   We express no opinion as to what, following remand, appellant's sentence should be.

DISPOSITION

The judgment of conviction is affirmed, appellant's sentence is vacated, and the matter is remanded to permit the trial court to resentence appellant consistent with this opinion.   The trial court is directed to forward to the Department of Corrections an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Unless otherwise indicated, subsequent statutory references are to the Penal Code..  FN1. Unless otherwise indicated, subsequent statutory references are to the Penal Code.

FN2. During jury argument, the prosecutor effectively argued (1) according to appellant's statement to Montenegro, it was on the “last time” that appellant sexually penetrated Armando as above indicated, (2) according to Armando's testimony, the last time appellant molested him was a few days after June 24, 2007;  therefore, (3) appellant sexually penetrated Armando a few days after June 24, 2007..  FN2. During jury argument, the prosecutor effectively argued (1) according to appellant's statement to Montenegro, it was on the “last time” that appellant sexually penetrated Armando as above indicated, (2) according to Armando's testimony, the last time appellant molested him was a few days after June 24, 2007;  therefore, (3) appellant sexually penetrated Armando a few days after June 24, 2007.

FN3. In rebuttal, Irma G., Armando's mother and appellant's sister, testified that when she spoke with Armando in July 2007, he indicated appellant touched Armando's penis, and touched Armando's butt with appellant's penis.   This occurred more than once.   Armando told Irma about two occasions during which appellant tried to do things to Armando.   On one occasion, appellant would not let Armando play with a toy.   On another occasion, they were in the kitchen and another of Armando's uncles almost caught them.   Irma asked appellant why he had done that to Armando.   Appellant said nothing but held his head in his hands.   Irma later asked appellant why this had to happen.   She did not remember his reply, but it was something like it was not his fault..  FN3. In rebuttal, Irma G., Armando's mother and appellant's sister, testified that when she spoke with Armando in July 2007, he indicated appellant touched Armando's penis, and touched Armando's butt with appellant's penis.   This occurred more than once.   Armando told Irma about two occasions during which appellant tried to do things to Armando.   On one occasion, appellant would not let Armando play with a toy.   On another occasion, they were in the kitchen and another of Armando's uncles almost caught them.   Irma asked appellant why he had done that to Armando.   Appellant said nothing but held his head in his hands.   Irma later asked appellant why this had to happen.   She did not remember his reply, but it was something like it was not his fault.

FN4. In 2007, section 803, subdivision (f), stated, in relevant part, “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.  [¶] (2) This subdivision applies only if all of the following occur:  [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.   [¶] ․ [¶] (C) There is independent evidence that corroborates the victim's allegation․  (3) No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial․”  (Italics added.)   Section 799 states, in relevant part, “Prosecution for an offense punishable by ․ imprisonment in the state prison for life ․ may be commenced at any time.”   Section 801.1 states, in relevant part, “(a) Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section ․ 288 ․ that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday.”.  FN4. In 2007, section 803, subdivision (f), stated, in relevant part, “(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to penetration by an unknown object.  [¶] (2) This subdivision applies only if all of the following occur:  [¶] (A) The limitation period specified in Section 800, 801, or 801.1, whichever is later, has expired.   [¶] ․ [¶] (C) There is independent evidence that corroborates the victim's allegation․  (3) No evidence may be used to corroborate the victim's allegation that otherwise would be inadmissible during trial․”  (Italics added.)   Section 799 states, in relevant part, “Prosecution for an offense punishable by ․ imprisonment in the state prison for life ․ may be commenced at any time.”   Section 801.1 states, in relevant part, “(a) Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section ․ 288 ․ that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday.”

FN5. The fact appellant claimed to Montenegro that appellant committed the sexual acts when he was 17 years old does not compel a contrary conclusion, especially since appellant testified that that claim was false.   Moreover, notwithstanding appellant's claim to the contrary, the People did not have to present expert medical testimony concerning the anal penetration of Armando.   Appellant cites no case holding such testimony was required.   Nothing prevented appellant from presenting such testimony.   The court gave CALJIC No. 2.27, which essentially instructed that the testimony of a single witness concerning any fact, if believed, was sufficient proof of that fact.   The court also gave CALJIC No. 10.60, which essentially instructed concerning sodomy that Armando's testimony did not have to be corroborated in order for the jury to determine appellant committed that act.   Appellant does not challenge these instructions;  therefore, we presume they correctly stated the law..  FN5. The fact appellant claimed to Montenegro that appellant committed the sexual acts when he was 17 years old does not compel a contrary conclusion, especially since appellant testified that that claim was false.   Moreover, notwithstanding appellant's claim to the contrary, the People did not have to present expert medical testimony concerning the anal penetration of Armando.   Appellant cites no case holding such testimony was required.   Nothing prevented appellant from presenting such testimony.   The court gave CALJIC No. 2.27, which essentially instructed that the testimony of a single witness concerning any fact, if believed, was sufficient proof of that fact.   The court also gave CALJIC No. 10.60, which essentially instructed concerning sodomy that Armando's testimony did not have to be corroborated in order for the jury to determine appellant committed that act.   Appellant does not challenge these instructions;  therefore, we presume they correctly stated the law.

FN6. The amended information alleged as to each count that an offense occurred on or between dates as follows:  count 1 (December 1 and December 30, 2006), count 4 (March 1 and March 31, 2007), count 7 (June 1 and July 15, 2007), count 8 (February 1 and February 28, 2007), and count 10 (December 1 and December 31, 2006).   The prosecutor's jury argument generally followed this scheme, except, conforming to proof, he argued counts 1 and 10 pertained to January 2007 events..  FN6. The amended information alleged as to each count that an offense occurred on or between dates as follows:  count 1 (December 1 and December 30, 2006), count 4 (March 1 and March 31, 2007), count 7 (June 1 and July 15, 2007), count 8 (February 1 and February 28, 2007), and count 10 (December 1 and December 31, 2006).   The prosecutor's jury argument generally followed this scheme, except, conforming to proof, he argued counts 1 and 10 pertained to January 2007 events.

FN7. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]..  FN7. Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

FN8. The interview transcript reflects the following:  “[Montenegro:] ․ do you have a driver's license?  [¶] [Appellant:] No. [Montenegro:] No? Are you ․ a citizen or?  [¶] [Appellant:] * * * [¶] [Montenegro:] No? Okay. * * born in Mexico?  [¶] [Appellant:] Mmnh-mmnh--[¶] [Montenegro:] All right.   Do you have a Visa to work out here or--[¶] [Appellant:] * * * [¶] [Montenegro:] No, okay.   I'm not concerned about that really[.]”  (Sic.).  FN8. The interview transcript reflects the following:  “[Montenegro:] ․ do you have a driver's license?  [¶] [Appellant:] No. [Montenegro:] No? Are you ․ a citizen or?  [¶] [Appellant:] * * * [¶] [Montenegro:] No? Okay. * * born in Mexico?  [¶] [Appellant:] Mmnh-mmnh--[¶] [Montenegro:] All right.   Do you have a Visa to work out here or--[¶] [Appellant:] * * * [¶] [Montenegro:] No, okay.   I'm not concerned about that really[.]”  (Sic.)

FN9. The transcript of the interview (admitted in evidence) reflects the advisement as follows:  “[Montenegro:] ․ Well, do you know why I'm here?  [¶] [Appellant:] ․ yeah, I think so.  [¶] [Montenegro:] ․ before we get into that, ․ you have certain rights that are ․ afforded to you, because you're in jail.   Okay? ․ you have the right to remain silent.   Do you understand that?  [¶] [Appellant:] Yeah. [¶] [Montenegro:] Okay. Anything you say may be used against you in a court of law.   Do you understand that?  [¶] [Appellant:] (No audible response) [¶] [Montenegro:] You have the right to the presence of an attorney before and during any questioning.   Do you understand that?   Okay. If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.   Do you understand that?   Yeah? Okay. Do you want to talk to me about what happened?  [¶] [Appellant:] ․ [¶] [Montenegro:] Do you want to talk to me about why you're in here?  [¶] [Appellant:] Yeah, sure.  [¶] [Montenegro:] Yeah? Okay ․ cause that's up to you.   That's why I read you these rights.   Now you don't have to talk to me, okay? ․ what do you know about why you're here?”.  FN9. The transcript of the interview (admitted in evidence) reflects the advisement as follows:  “[Montenegro:] ․ Well, do you know why I'm here?  [¶] [Appellant:] ․ yeah, I think so.  [¶] [Montenegro:] ․ before we get into that, ․ you have certain rights that are ․ afforded to you, because you're in jail.   Okay? ․ you have the right to remain silent.   Do you understand that?  [¶] [Appellant:] Yeah. [¶] [Montenegro:] Okay. Anything you say may be used against you in a court of law.   Do you understand that?  [¶] [Appellant:] (No audible response) [¶] [Montenegro:] You have the right to the presence of an attorney before and during any questioning.   Do you understand that?   Okay. If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want.   Do you understand that?   Yeah? Okay. Do you want to talk to me about what happened?  [¶] [Appellant:] ․ [¶] [Montenegro:] Do you want to talk to me about why you're in here?  [¶] [Appellant:] Yeah, sure.  [¶] [Montenegro:] Yeah? Okay ․ cause that's up to you.   That's why I read you these rights.   Now you don't have to talk to me, okay? ․ what do you know about why you're here?”

FN10. The court observed the total interview was about 90 minutes, only appellant and Montenegro were present, appellant understood the Miranda advisements, Montenegro was soft-spoken during the slow-paced interview, and there were two short breaks during the interview.   The court also observed appellant never asked for counsel or to terminate the interview, Montenegro made multiple disclaimers of any promise of leniency, there was no psychological coercion, and there was no coercive environment..  FN10. The court observed the total interview was about 90 minutes, only appellant and Montenegro were present, appellant understood the Miranda advisements, Montenegro was soft-spoken during the slow-paced interview, and there were two short breaks during the interview.   The court also observed appellant never asked for counsel or to terminate the interview, Montenegro made multiple disclaimers of any promise of leniency, there was no psychological coercion, and there was no coercive environment.

FN11. Appellant asserts, without citation to the 34-page transcript of his statements, that “the detective offered to talk to the D.A. if the [d]efendant told the truth and was remorseful and since he had no criminal past, that he might get time served and would save his family a lot of grief.”   He also asserts, without citation to the record, that “almost the entire interview of the [d]efendant was taken up with repeated and continual statements that if the [d]efendant would tell her what happened, she'd go the limit for him, that he'd get a lighter sentence and that his family would feel better about it and if he did not talk, then [sic ] he'd be perceived as a liar, as not being remorseful and would have to spend a lot of time in prison.”.  FN11. Appellant asserts, without citation to the 34-page transcript of his statements, that “the detective offered to talk to the D.A. if the [d]efendant told the truth and was remorseful and since he had no criminal past, that he might get time served and would save his family a lot of grief.”   He also asserts, without citation to the record, that “almost the entire interview of the [d]efendant was taken up with repeated and continual statements that if the [d]efendant would tell her what happened, she'd go the limit for him, that he'd get a lighter sentence and that his family would feel better about it and if he did not talk, then [sic ] he'd be perceived as a liar, as not being remorseful and would have to spend a lot of time in prison.”

FN12. We note for example that after appellant effectively inquired if he was going to prison, Montenegro stated, “I can't promise you anything, I'm not in a position to promise anything.   That's not my decision, okay?”   Montenegro later indicated she was the one who “talks to the DA,” Montenegro “presents all the information to the DA,” and “I have to take it to him.”   Montenegro also indicated the “DA,” “decide[s] what charges they're filing.”   Montenegro noted in essence that if the judge were told appellant committed the crimes and was lying about it, the judge would not be merciful, but if appellant was remorseful, the “judge can tend to be more lenient.”   Montenegro also noted there were no guarantees..  FN12. We note for example that after appellant effectively inquired if he was going to prison, Montenegro stated, “I can't promise you anything, I'm not in a position to promise anything.   That's not my decision, okay?”   Montenegro later indicated she was the one who “talks to the DA,” Montenegro “presents all the information to the DA,” and “I have to take it to him.”   Montenegro also indicated the “DA,” “decide[s] what charges they're filing.”   Montenegro noted in essence that if the judge were told appellant committed the crimes and was lying about it, the judge would not be merciful, but if appellant was remorseful, the “judge can tend to be more lenient.”   Montenegro also noted there were no guarantees.

FN13. We assume the court sentenced appellant as indicated above, although some of the court's dispositional language suggests the court gave only an indicated sentence..  FN13. We assume the court sentenced appellant as indicated above, although some of the court's dispositional language suggests the court gave only an indicated sentence.

FN14. That subdivision states, “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.”.  FN14. That subdivision states, “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.”

FN15. A violation of section 288.7, subdivision (b) is punishable by imprisonment in the state prison for 15 years to life..  FN15. A violation of section 288.7, subdivision (b) is punishable by imprisonment in the state prison for 15 years to life.

FN16. We asked for, and received, supplemental briefing on the above and other sentencing issues.   In their supplemental letter briefs, the parties concede the trial court erred as indicated above, and that, therefore, remand for resentencing is appropriate.   This renders moot the other issues as to which we sought supplemental briefing..  FN16. We asked for, and received, supplemental briefing on the above and other sentencing issues.   In their supplemental letter briefs, the parties concede the trial court erred as indicated above, and that, therefore, remand for resentencing is appropriate.   This renders moot the other issues as to which we sought supplemental briefing.

KLEIN, P. J. ALDRICH, J.