PEOPLE v. FERNANDEZ

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. David Michael FERNANDEZ, Defendant and Appellant.

No. H004537.

Decided: October 13, 1989

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Gerald A. Engler, and Violet M. Lee, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Harvey R. Zall, State Public Defender, Kent Barkhurst, Deputy State Public Defender, San Francisco, for defendant and appellant.

STATEMENT OF THE CASE

Defendant David Michael Fernandez appeals from judgment entered after a jury found him guilty of 155 counts of lewd and lascivious conduct upon a child and one count of lewd conduct by force (Pen.Code, § 288, subds. (a) and (b) (hereafter sections 288(a) and 288(b)) 1 .  He admitted having a prior “serious felony” conviction for rape and having served a prior prison term for various felonies (§§ 667, 1192.7, subd. (c)(3), and 667.5) and was sentenced to 330 years in prison.   On appeal, he claims the prosecution failed to present sufficient specific evidence of each count.   He also claims the court gave an erroneous unanimity instruction, erred in failing to grant a mistrial due to jury misconduct, and committed numerous sentencing errors.   We affirm the conviction but remand the matter for resentencing.

Facts

Defendant and Cathy were married for fourteen years and had three children, including a daughter R., who was born in 1976 and, at the time of trial, was 11 years old.   R. attended third grade at Glenview School in Gilroy from September 1984 to June 1985.   She repeated third grade, spending the first half at Glenview and the second half at El Roble school in Gilroy.   She attended fourth grade at El Roble.

R. testified that her father engaged in three types of lewd conduct with her.   Using an incident that occurred during the summer of 1987, between third and fourth grade, she explained that defendant told her to go into his bedroom and lay on her back.   After removing his clothes, defendant straddled her and rubbed his penis against her vagina until he ejaculated.   Thereafter, he cleaned both of them off with a towel.   R. testified that defendant simulated intercourse in this way “a lot,” twice a week during third and fourth grades and the summers through the fourth grade.   She also said that once, when she was 11 years old, she told defendant she did not want to undress and tried to leave the room, but defendant hit her in the face, giving her a “fat lip.”   He then simulated intercourse with her.

R. testified that at least twice a week during this same time period, more often than simulated intercourse, defendant had her masturbate him with her hand.   She also said that at least once during third and again fourth grades, defendant had her orally copulate him until he ejaculated.2

R. testified that she once told her mother about the molestation, and her mother became upset and confronted defendant, but he denied everything.

R. said that she wrote about being molested in her diary.   Her Aunt Tina, defendant's sister, discovered the entry, asked R. about it, and immediately called Child Protective Services.   Thereafter, the police interviewed R.

On July 23, 1987, Officer Raymond Hansell of the Gilroy Police Department spoke to R.   She told him that on July 20 and 21, 1987, defendant simulated intercourse with her.   She also said the molestation started when she was eight years old and that she orally copulated defendant.

R. testified that defendant came home while she was talking to Officer Hansell and stood in the hallway shaking his head.   She took this as a signal to be quiet about the molestation.

R.'s brother Michael testified that defendant would call R. into his bedroom for a “backrub” about four times per week.   The door was always shut, except on one occasion defendant come out wearing only a shirt and underwear.   He saw R. inside the room wearing only her underwear.   Michael said that R. looked upset whenever she came out of defendant's bedroom but never explained why.   He also recalled a time when R. went into defendant's bedroom and came out with a “fat lip.”

The defense sought to impeach R.'s credibility by attacking particulars of her testimony and showing the improbability that she was molested at certain times because other adults were there.

Officer Joe Ramirez of the Gilroy Police Department testified that when he interviewed R. on July 29, 1987, she said she orally copulated defendant on July 20, contrary to what she told Officer Hansell.

Defendant's mother testified that she came over to defendant's house to look after his children on July 20 because neither R.'s mother nor defendant could be there.   She said she was there from 2:45 p.m. until 1:00 a.m. the next morning.

Defendant's wife Cathy, who was divorcing him at the time of trial, testified that she stayed home from work for a period of time the previous year due to an injury.   She could not recall how long she was home but was on heavy medication and slept a lot.   She said that everyone in the family gave defendant backrubs in his bedroom.

Discussion

I. Due Process Violation

Relying primarily on People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352, defendant claims that except for the few instances when R. recalled particular acts of molestation, the prosecution failed to satisfy its burden to present specific evidence of the remaining offenses.   He argues that the evidence as to these offenses was too vague and generic to support convictions on individual counts.   We disagree.

 Preliminarily, we note that in cases where one offense is charged but evidence is presented of more than one act, any one of which could constitute the charged offense, the “either/or” rule applies to protect the defendant's rights to notice of the charges against him and to jury unanimity on the particular act or acts forming the basis of a guilty verdict:  either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that the defendant committed the same specific act.  (People v. Callan (1985) 174 Cal.App.3d 1101, 1111, 220 Cal.Rptr. 339;  see People v. Castro (1901) 133 Cal. 11, 12–13, 65 P. 13;  People v. Williams (1901) 133 Cal. 165, 168, 65 P. 323.)

In People v. Van Hoek, supra, 200 Cal.App.3d 811, 246 Cal.Rptr. 352, the defendant was charged with seven counts of unlawful sexual conduct.   Each count was charged with having occurred on or about “April 1983” and/or on or about 1980, 1981, 1982, 1984, and 1985.  (Id. at pp. 812–813, 246 Cal.Rptr. 352.)   The victim testified that the defendant started touching her regularly when she was three years old.   At one particular address, it occurred twice a day and at least once a month.   In 1983 and 1984, the defendant also had sexual intercourse with her five or six times.   The prosecution did not select a particular act to prove each count, but the trial court gave a unanimity instruction.

On appeal, the court asserted that while the “either/or” rule applied when there is specific evidence of several acts, any of which could support a guilty verdict, the rule was irrelevant when the evidence showed a continuous series of identical unlawful acts over an extended period of time but failed to establish any specific act to support the charges.

The court reasoned, “A serious problem with the vague charges and the testimony upon which they are based is that the defendant's ability to defend is severely hampered.   A ‘resident child molester'3 would virtually be ‰«‚ precluded from presenting an alibi defense to the acts unless he could account for every time he was in the presence of the victim.   In the instant case, defendant, because he was the victim's father and lived in the household, has no idea what specific time or specific act he has to defend against.   The defendant would virtually have to account for every day of the last five years during which he had contact with [the victim] to enable him to present any kind of alibi defense.  [¶] Also, the defendant is precluded from attacking the victim's testimony in any way other than a general attack.   The defendant is unable to attack specifics of the act to undermine the victim's credibility as to certain details which might convince the jury that the particular act did not occur as testified to by the victim.”  (Id. at p. 817, 246 Cal.Rptr. 352.)

The court acknowledged the unique problems caused by the repeated molestation of young children by resident family members but nevertheless reversed the judgment, concluding that convictions based on unspecific, uncorroborated evidence of numerous unlawful acts deprived the defendant “of the right to mount an adequate defense” and did not require the prosecution “to meet their burden of proving the defendant committed a particular act on a particular and specific occasion.”  (Id. at p. 818, 246 Cal.Rptr. 352.)

Van Hoek has not been universally embraced.   The Fifth District, of course, continues to apply it.  (People v. Atkins (1988) 203 Cal.App.3d 15, 249 Cal.Rptr. 863;  People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878;  People v. Vargas (1988) 206 Cal.App.3d 831, 253 Cal.Rptr. 894;  see also People v. Jeff (1988) 204 Cal.App.3d 309, 345, 251 Cal.Rptr. 135 [conc. and dis. opn. of Best, J.] ).  The Fourth District appears to have accepted it.  (People v. Jones (1989) 209 Cal.App.3d 89, 96, fn. 3, 257 Cal.Rptr. 342, review granted June 29, 1989 (S010191).)   But the First, Second and Third Districts reject it.  (People v. Moreno (1989) 211 Cal.App.3d 776, 259 Cal.Rptr. 800 [1st Dist., Div. 2];  People v. Obremski (1989) 207 Cal.App.3d 1346, 255 Cal.Rptr. 715, [2d Dist.;   Div. 6];  People v. Coulter (1989) 209 Cal.App.3d 506, opn. mod. 209 Cal.App.3d 1098a, 257 Cal.Rptr. 391 [2d Dist.;   Div. 1];  People v. Slaughter (1989) 211 Cal.App.3d 577, 259 Cal.Rptr. 437 [3d Dist.], review granted August 31, 1989 (S011286);  see also People v. Avina (1989) 211 Cal.App.3d 48, 259 Cal.Rptr. 178 [2d Dist.;   Div. 1].)

In People v. Obremski, supra, 207 Cal.App.3d 1346, 255 Cal.Rptr. 715, the defendant was convicted of 25 offenses, including unlawful intercourse, lewd conduct, oral copulation, and sodomy.   The victim testified she had intercourse with the defendant 15 or 20 times each month between 1982 and 1983;  she had intercourse and oral copulation every month in 1983 and 1984;  and in 1985, had intercourse and oral copulation with the same frequency but defendant also sodomized her 20 to 25 times.  (Id. at p. 1349, 255 Cal.Rptr. 715.)

On appeal, the defendant sought reversal under Van Hoek.   He argued that because the prosecution failed to allege exactly the date, place, and time of each charged offense, he was forced to defend against evidence of hundreds of sexual acts but not given sufficient information to assert an alibi defense.  (Id. at p. 1351, 255 Cal.Rptr. 715.)

The court concluded the defendant was estopped to raise this issue because he never indicated an interest in presenting an alibi defense.  “[T]o claim at this late date that the charges against him were not specific enough to enable him to defend the case is unfair to the People and the trial court and constitutes an attempt to disrupt the efficient administration of justice.”   (Id. at p. 1352, 255 Cal.Rptr. 715.)

Alternatively, the court rejected the reasoning in Van Hoek.   It criticized Van Hoek for finding that the difficulty a resident child molester may have in defending against charges based on a child's generalized testimony outweighed the problems the child may have in distinguishing by time and detail one specific act from another, especially when the child has been molested on a frequent and regular basis.   The court opined that requiring the prosecution to charge and prove that a defendant committed a particular act on a particular occasion would, under certain circumstances, insulate resident child molesters from prosecution.  (Id. at p. 1352, 255 Cal.Rptr. 715.)

The Obremski court further found that Van Hoek placed “a misguided emphasis on the right of resident child molesters to rely on alibi as a defense” and erroneously sought “to fit the crime to the defense instead of fitting the defense to the crime.”  (Id. at pp. 1352–1353, 255 Cal.Rptr. 715.)   The court explained, “In cases where the child molester lived with the victim for an extensive, uninterrupted period and therefore had continual day and night access to the vulnerable child, neither alibi or wrongful identification is likely to be a reasonable defense.  [Citation.]  If the victim of a resident molester is able to testify only to a general sexual interaction with the molester, the molester himself is likely to be similarly handicapped in eliciting from his memory specific details concerning the date, time and place of his activities during the years of his residence with the victim.   Forcing the prosecution to an election in this factual situation achieves the anomalous result of subjecting to prosecution only those defendants who select victims with better memories or who are one act offenders.  [Citation.]  [¶] In resident child molester cases, the true issue is credibility.  [Citation.]  ‘[S]ince the prosecution always has the burden of proving guilt beyond a reasonable doubt, an accused can stand mute and attack the credibility of complaining witnesses.   Where the accused is a stranger to the victim and/or the household and allegedly committed a single unlawful act, an alibi or identity defense might be crucial.’  [Citation.]  ․ [¶] Where alibi is not a defense, the prosecution need only prove the act was committed before the filing of the information and within the period of the statute of limitations.  [Citation.]  This is so because the precise time of a crime need not be declared in the accusatory pleading expect where time is a material ingredient of the offense.  [Citations.]  Time is essential if the defense is alibi.  [Citation.]  [¶] Since the exact times of the offenses are not material in the case before us, in that appellant did not attempt to prove an alibi and had uninterrupted access to the victim, the imprecise charges did not mislead him and violate his right to due process.”  (Id. at pp. 1353–1354, 255 Cal.Rptr. 715;  see People v. Coulter, supra, 209 Cal.App.3d 506, opn. mod. 209 Cal.App.3d 1098a, 257 Cal.Rptr. 391 [following Obremski ].)

We consider Obremski far more persuasive than Van Hoek and find no violation of defendant's due process rights.

The due process concerns identified in Van Hoek are (1) the sufficiency of notice of the offenses charged, (2) the defendant's ability to assert an alibi defense, and (3) the ability of the jury to unanimously agree on the particular act supporting a given count.

 Here, defendant does not specifically argue notice was inadequate.   Nor is such an argument viable.   It has been observed that “an information plays a limited but important role:  it tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution.   But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript;  it is the touchstone of due process notice to a defendant.”  (People v. Gordon (1985) 165 Cal.App.3d 839, 870, 212 Cal.Rptr. 174 [conc. opn. of Sims, J.], emphasis in original.)   Moreover, the prosecution has “no duty to provide more explicit notice than human nature and science permit.   A contrary conclusion would lead to the absurd result that those defendants who are most clever about concealing the precise time or place of their crimes, and who are therefore the most dangerous, would avoid prosecution.”  (Id. at p. 868, 212 Cal.Rptr. 174.)

Here, the allegations in the amended information were far more specific than those in Van Hoek and narrowed the time frame for each count from 23 months, in the original information, to at most two-week, but generally one-week, periods for each count.4  Given R.'s age and testimony at the preliminary hearing concerning the frequency of molestation, where it occurred, when it occurred, and its repeated, uniform, and ongoing nature, the information was as specific and explicit as it reasonably could be and afforded defendant the opportunity to plan a defense.  (See People v. Jeff, supra, 204 Cal.App.3d 309, 341–342, 251 Cal.Rptr. 135;  cf. People v. Luna, supra, 204 Cal.App.3d 726, 739, 250 Cal.Rptr. 878 [information alleging offense during two-month period provided sufficient notice].)

 Moreover, if defendant felt the amended information was too vague, he could have demurred.   Having failed to do so, however, he waived any claim based on this ground.  (Pen.Code, § 1012;  People v. Jeff, supra, 204 Cal.App.3d at p. 342, 251 Cal.Rptr. 135.)

We next note that as to the counts based on R.'s general testimony, defendant does not specifically complain he was unfairly precluded from asserting alibi defenses.   He does not appear to have ever sought to assert alibis as to them.

 Regardless, given the number of charges and the lengthy time period they cover, it is highly unlikely defendant would or could have sought to establish 156 separate alibis.   We also agree with Obremski that in resident child molester cases such as this, involving a continuous course of molestation, and evidence of numerous, secretive offenses over a long period of time, credibility, not alibi, is the only real issue.   In making this observation, Obremski echoed the view of the court in People v. Dunnahoo (1984) 152 Cal.App.3d 561, 199 Cal.Rptr. 796.

There, the information charged two counts of molestation and two counts of oral copulation with two five-year-old children, all occurring sometime between February 9 and August 8, 1980.  (Id. at pp. 566–567, 199 Cal.Rptr. 796.)   The evidence at trial established a continuing course of molestation, involving numerous acts throughout this time span.  (Id. at p. 572, 199 Cal.Rptr. 796.)   The appellate court noted that a defendant's due process right to notice must be evaluated in light of the defenses available to the particular charges.  (Id. at p. 571, 199 Cal.Rptr. 796.)   It then explained, “Under the circumstances, an alibi or identity defense would be unavailing where as here, [the defendant] lived with the victims for an extensive, uninterrupted period, day and night.   Such a living arrangement permitted continual access to the vulnerable youngsters, trusting as they were of [the defendant] as a surrogate parent.   Further, certain of the illicit sexual conduct took but a moment or two to perform, such as unlawful touchings, and yet constituted criminal acts.  [¶] In reason, neither alibi nor wrongful identification would ever be offered as a defense.   Credibility would be the only issue in these fact situations․”  (Id. at p. 572, 199 Cal.Rptr. 796.)

Finally, we acknowledge that where, as here, the victim relates repetitive molestation over a period of years, it is virtually impossible to assert alibis for each act unless the victim also recalls the exact time, place, and/or date of each act.   However, the similarity and repetition of the acts would make it difficult, if not impossible, for an adult, let alone a child, to pinpoint the specific circumstances of each act.   Should then the very manner in which the acts were committed support a due process shield, precluding prosecution commensurate with actual culpability, simply because the defendant is unable to assert alibi defenses?   We think not.

Where, as here, alibi defenses to each charge were, as a practical matter, precluded because the child victims' testimony was generalized, the prosecution is forced to rely on the credibility of the victim and present its case on an all or nothing basis:  the defendant is either guilty or not guilty of all charges.   The very vagueness of the victim's testimony, however, permits a broad attack on the victim's credibility in addition to any specific attacks that may be made using particular aspects of the testimony.  (See People v. Avina, supra, 211 Cal.App.3d at pp. 55–56, 259 Cal.Rptr. 178.)

In this case, defendant's primary complaint is that R.'s testimony, like that in Van Hoek, was not specific enough as to the circumstances of each charge and fails to reflect the victim's actual memory of each act or show that all 156 acts even occurred.

 As a preliminary matter, we find that R.'s testimony and her brother's corroboration as to the frequency that defendant called R. into his room and shut the door sufficient substantial evidence to support defendant's convictions as to each count.  (See People v. Johnson (1980) 26 Cal.3d 557, 562, 577, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Oyaas (1985) 173 Cal.App.3d 663, 668, 219 Cal.Rptr. 243.)   R. gave specific testimony concerning the types and location of the molestation.   Her testimony that the acts occurred twice a week from August 1985 to July 1987 is equivalent to specific testimony that defendant molested her each week as alleged in the information.   We do not believe the prosecutor was required to proceed chronologically, week by week, specifically asking R. if she was molested each particular week.

 That on cross-examination R. was not specifically able to recall the particular days on which she was molested and did not provide circumstances that might have distinguished one week from another does not render her testimony insufficient as a matter of law.   Rather these aspects of her testimony are more relevant to her credibility.  (See People v. Avina, supra, 211 Cal.App.3d at pp. 55–56, 259 Cal.Rptr. 178.)   Being the arbiter of credibility, the jury had discretion to believe her direct testimony concerning the frequency of defendant's acts and disregard any inconsistent testimony elicited from her on cross-examination.  (People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal.Rptr. 228, 721 P.2d 110;  cf., e.g., People v. Cook (1955) 136 Cal.App.2d 442, 445, 288 P.2d 602;  People v. Schultz (1942) 49 Cal.App.2d 38, 42, 120 P.2d 893.)   Indeed, defense counsel stressed the inconsistencies in R.'s testimony, including her statement that there might have been weeks when no molestation took place.   Nevertheless, the jury found a reason to disregard R.'s apparent equivocation on cross-examination.   It is not our function to investigate or judge their reasons for doing so.   It suffices to say that despite defense counsel's cross-examination and argument, the jury determined that R. was molested at least once each and every week during the pertinent time frame.   Her direct testimony supports this conclusion, and it is not inherently unbelievable.  “No higher standard of review of the facts, either at trial or on appeal, is required by the nature of the offense[s].”  (People v. Avina, supra, 211 Cal.App.3d at p. 56, 259 Cal.Rptr. 178.)

In light of the sufficiency of the evidence, defendant's claim concerning the lack of specificity in the evidence would appear to be directed to the jury's ability to unanimously agree on the specific act constituting each count.

We note, however, that in two pertinent cases where the victim's testimony disclosed several identical acts and the same defense was proffered as to all of them, one court found the failure to give a unanimity instruction harmless beyond a reasonable doubt (People v. Deletto (1983) 147 Cal.App.3d 458, 464–474, 195 Cal.Rptr. 233) and the other court held that the failure to instruct on unanimity was not error (People v. Schultz (1987) 192 Cal.App.3d 535, 538–540, 237 Cal.Rptr. 513).

 The reasoning underlying both of these cases is that the unanimity instruction is significant only when (1) evidence of more than one act is presented to prove a particular charge, (2) there is an evidentiary basis upon which the jurors could distinguish the acts, such that they could accept one but reject the others, and different defenses are asserted.   However, where all of the acts presented to prove a particular charge are identical and the defense to them all is the same, reasonable jurors must necessarily reject the defense and find that all the acts were committed in order to return a guilty verdict.   Under such circumstances, the jury has in fact unanimously agreed on the act forming the basis for their verdict.  (People v. Deletto, supra, 147 Cal.App.3d at pp. 473–474, 195 Cal.Rptr. 233;  People v. Schultz, supra, 192 Cal.App.3d at p. 540, 237 Cal.Rptr. 513.)

 We find this analysis applicable here.   As noted above, the primary issue in this case was R.'s credibility.   As to those counts for which the evidence was general and about which defendant is now concerned, the limited detail of R's testimony required the prosecution to present each count to the jury on an all or nothing basis.   Indeed, in discussing the applicability of the unanimity instruction, the prosecutor simply explained that if they believed all of R.'s testimony, they could convict defendant on all counts.   Moreover, the evidence as to the majority of acts offered to prove each count was identical, providing no rational basis to distinguish them and leaving only two possible conclusions:  defendant committed every act or none of them.   Finally, with respect to the charges based on the victim's generalized evidence, the basic defense was the same:  the acts did not occur, and R. was lying.   In finding defendant guilty as charged, the jury necessarily rejected this defense and believed R.   Under these circumstances, and in light of the sufficiency of the evidence, we find no cause to believe the jury did not unanimously agree concerning the acts supporting each charge.

II. Unanimity Instruction

 Defendant contends the trial court erred in failing to instruct the jury that it must unanimously agree that defendant committed the same illegal act with respect to each count.

The court instructed the jury as follows:  “The Defendant is charged with the offenses of lewd act with child in violation of section 288(a) of the Penal Code and with the offense of lewd act with child by use of force and violence in violation of section 288(b) of the Penal Code.   He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts.   But in order to find the defendant guilty all the jurors must agree that he committed the same act or acts.   It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

Defendant argues that the trial court's instruction permitted, indeed encouraged, the jury to amalgamate evidence and convict him of all counts if it found that he committed any one act.

The Attorney General responds that any possibility that the jury might have so interpreted the court's instruction was dispelled by the court's next instruction:  “Each count charges a distinct offense.   You must decide each count separately.   The Defendant may be found guilty or not guilty of any or all the offenses charged.”   Moreover, he claims any potential misunderstanding was further eliminated when defense counsel explained to the jury during her closing argument that it must consider the counts one-by-one.  “For example, Count 19, did [the prosecutor] show you beyond a reasonable doubt that between December 19, 1985 and December 25, 1985 that an act was committed by this Defendant against [R.]”

We agree with the Attorney General.   Moreover, as we previously discussed, there was no rational basis for the jury to find that defendant committed certain acts and not others.   As tried, defended, and argued by the prosecution and defense, defendant was either guilty of all acts about which R. testified, or none of them.   Therefore, in finding defendant guilty as charged, the jury necessarily believed R.'s testimony and found that defendant committed all acts charged.

III. Reversal For Juror Misconduct

Defendant contends that the judgment must be reversed because one juror read an article about the case, and it negatively affected her attitude toward defendant.5  We disagree.

The record reflects that a juror skimmed a newspaper article in which it was reported that a child had said she was molested, defendant was in custody, a high bail had been set, but defendant had been unable to post it.

The juror was questioned by counsel.   Although she indicated that the article initially influenced her slightly against defendant, she nevertheless felt she could be fair.   In response to the court's own pointed questions, she clearly and unequivocally stated she could put the article out of her mind, limit her decision to what she heard in court, and not be affected by what she read in any way.

 A presumption of prejudice arises from the fact that a juror has read a newspaper article about that case on which he or she is sitting.   However, this presumption may be rebutted.  (See People v. Ladd (1982) 129 Cal.App.3d 257, 264, 181 Cal.Rptr. 29;  see People v. Andrews (1983) 149 Cal.App.3d 358, 363–364, 196 Cal.Rptr. 796;  see also People v. Thomas (1975) 47 Cal.App.3d 178, 181, 120 Cal.Rptr. 637.)   Here, in permitting the juror to remain, the trial court implicitly found that she could be fair and that the article would not affect her judgment or decision.   The evidence clearly supports this finding and, in our view, is sufficient to rebut the presumption of prejudice.  (See People v. Bullwinkle (1978) 105 Cal.App.3d 82, 91, 164 Cal.Rptr. 163, disapproved on another point in People v. Laiwa (1983) 34 Cal.3d 711, 728, 195 Cal.Rptr. 503, 669 P.2d 1278.)

Defendant's reliance on People v. Thomas, supra, 47 Cal.App.3d 178, 120 Cal.Rptr. 637 is misplaced.   In that case, more than one juror read an article reporting that the defendant's accomplice plead guilty to the same crime for which the defendant was on trial.   The appellate court found the assertions by the jurors that they could be fair insufficient to overcome the presumption of prejudice created by the information.  (Id. at p. 181, 120 Cal.Rptr. 637.)

Here, on the other hand, the juror had only a vague awareness of the article's contents and what she did remember was not as inherently prejudicial as the information learned by the jurors in Thomas.   In light of her limited memory of the article, it is reasonable to believe her when she said she could perform her duty unaffected by the article.

IV. Sentencing Errors

Defendant contends the trial court committed numerous sentencing errors and that we must remand for resentencing.   We agree.

Before explaining the court's errors, we recount how it determined defendant's sentence in the first place.

The probation report lists six circumstances in aggravation (Cal.Rules of Court, rule 421 6 ) and no circumstances in mitigation (rule 423).   It recommended, inter alia, a prison term of 146 years.   The report was reviewed and approved by a supervising probation officer, who, for reasons not revealed in the record, submitted a separate memorandum to the court “to show the maximum possible exposure on the charges.”   She found this to be 330 years.

After reviewing the probation report and supplemental memo, the court stated, “The testimony of the complaining witness was both overwhelming and pathetic in its nature.   The charges are such that this Court feels it has no alternative based upon the conduct of the Defendant, his past conduct, to impose the maximum possible sentence.   I will do so.  [¶] Probation officer [sic] makes note ․ that the Defendant cannot be rehabilitated.   He has shown by his repeated deviant behavior that he cannot or will not conform to the mores of society and it suggests in a poetic fashion that he should spend his time behind bars.   That is an understatement.  [¶] Mr. Fernandez, to suggest that your behavior is deviant is an understatement.   Your behaviour is beyond all acceptable norms of society that we live in today.   Nothing more can be said by me.   It would be redundant to say anything else.”

The court then imposed an aggravated eight-year principal term for one violation of section 288(a), stating, “I base that aggravated term upon Rule 421 and the circumstances in aggravation more specifically set forth in the probation officer's report.”   The court likewise found the remaining violations of section 288(a) to be aggravated, but stated no reasons for doing so.   For each, the court then imposed consecutive two-year terms, staying six years of the aggravated terms so as to comply with the one-third-the-middle-term requirement of section 1170.1, subdivision (a) (hereafter section 1170.1(a).).  (See rules 439 and 449.)   The court stated no reasons for making these terms consecutive.

As to the violation of section 288(b), the court expressly stated it was exercising its discretion under section 667.6, subdivision (c) (hereafter section 667.6(c)), to impose a consecutive eight-year aggravated term, “again relying on Rule 421 of the circumstances in aggravation more specifically set forth in the probation officer's report.”

In addition, the court imposed a consecutive five-year enhancement for a prior “serious felony” conviction and a consecutive one-year enhancement for a prior prison term, making a total sentence of 330 years.

 The most fundamental duty of a sentencing court is to state reasons justifying the sentencing choices it makes.  (§ 1170, subd. (c);  rule 443;  People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552, 258 Cal.Rptr. 75;  see rule 405, subd. (f).)  As to defendant's sentence, the trial court was required to state reasons for imposing the 156 aggravated terms (§ 1170, subd. (b);  People v. Turner (1978) 87 Cal.App.3d 244, 246–247, 150 Cal.Rptr. 807;  see § 1170.3;  rules 439, subd. (c) and 405, subd. (f));  the 154 consecutive sentences under section 1170.1(a) (§ 1170.3;  People v. Belmontes (1983) 34 Cal.3d 335, 346–347, 193 Cal.Rptr. 882, 667 P.2d 686;  see rules 405, subd. (f) and 425);  and the one full-term consecutive sentence under section 667.6(c).  (Ibid.;  People v. Coleman (1989) 48 Cal.3d 112, 161–163, 255 Cal.Rptr. 813, 768 P.2d 32.). 7

Here, in imposing an aggravated term for one violation of section 288(a) and a full consecutive aggravated term for the violation of section 288(b), the trial court simply cited rule 421 and incorporated by reference the aggravating factors enumerated in the probation report.   This method of stating reasons, however, was proscribed over ten years ago in People v. Turner, supra, 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807.   There, the court concluded it violates the spirit of the sentencing laws and fails to properly explain the basis for any sentencing choice.  (Accord People v. Turner (1978) 87 Cal.App.3d 244, 247, 150 Cal.Rptr. 807;  People v. Hernandez (1979) 100 Cal.App.3d 637, 643, 160 Cal.Rptr. 607;  People v. Davis (1980) 103 Cal.App.3d 270, 280, 163 Cal.Rptr. 22;  People v. Salazar (1980) 108 Cal.App.3d 992, 1000, 167 Cal.Rptr. 38, disapproved on other points in People v. Wolcott (1983) 34 Cal.3d 92, 106, fn. 6, 192 Cal.Rptr. 748, 665 P.2d 520, and People v. Sumstine (1984) 36 Cal.3d 909, 921, fn. 8, 206 Cal.Rptr. 707, 687 P.2d 904.)

Given such long-standing precedent, we are surprised the trial court considered incorporation proper.   However, we are not surprised the practice still persists because appellate courts routinely deem the error harmless.   (See, e.g., People v. Green (1988) 200 Cal.App.3d 538, 542–543, 246 Cal.Rptr. 164;  People v. Porter (1987) 194 Cal.App.3d 34, 39, 239 Cal.Rptr. 269;  People v. Swanson (1980) 123 Cal.App.3d 1024, 1033, 176 Cal.Rptr. 915;  but see People v. Hernandez (1988) 204 Cal.App.3d 639, 655, 251 Cal.Rptr. 393.)

Here, a review of the factors listed in the probation report clearly demonstrates why incorporation frustrates meaningful appellate review.

As is usually the case, the report lists all of the factors set forth in Rule 421 verbatim, and the probation officer simply checked the ones she felt applicable.

 The first factor checked is that the crime “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness, whether or not charged or chargeable as an enhancement under Section 12022.7.”  (See rule 421, subd. (a)(1).)   This factor is potentially applicable only to one of the 156 counts:  the violation of section 288(b), forcible lewd conduct.   Thus, the court erred in incorporating it to aggravate a violation of section 288(a).

 As to the violation of section 288(b), we note one element of the offense is the use of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim.”  (§ 288(b).)   As such, force cannot be used as an aggravating factor.  (Rule 441, subd. (d).)

The record here indicates that defendant once overcame R.'s refusal to cooperate by giving her a “fat lip.”   Such force is clearly sufficient to establish the offense.   However, by incorporating the probation report, we are unable to determine if the trial court ever considered whether defendant used “great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness” so as to make the aggravating factor applicable.  (Cf. People v. Garcia (1989) 257 Cal.App.3d 790, 793–794, 209 Cal.Rptr. 495.)

 The second factor listed is the victim's vulnerability.  (Rule 421, subd. (a)(3).)   Clearly, R. was “vulnerable” because she was a child.   However, where, as here, an age range factor is an element of the offense, vulnerability based on age is generally not a proper aggravating factor.   (People v. Quinones (1988) 202 Cal.App.3d 1154, 1159, 249 Cal.Rptr. 435;  People v. Garcia (1983) 147 Cal.App.3d 1103, 1104–1106, 195 Cal.Rptr. 494;  People v. Ginese (1981) 121 Cal.App.3d 468, 475–477, 175 Cal.Rptr. 383;  see rule 441, subd. (d).)

Defendant's paternal relationship to R. also rendered her vulnerable.   (People v. Garcia (1985) 166 Cal.App.3d 1056, 1070, 212 Cal.Rptr. 822.)   However, this aspect of vulnerability is merely another way of saying defendant “took advantage of a position of trust or confidence to commit the offense[,]” which the probation report separately lists as an additional aggravating factor.  (Rule 421, subd. (a)(12).)   Abuse of the parental relationship, however, represents only one aggravating factor, not two.  (See People v. Garcia, supra, 166 Cal.App.3d at p. 1070, 212 Cal.Rptr. 822.)   Although there may be other circumstances that rendered R. especially vulnerable, the court, by incorporating the probation report, avoided determining what they are.

The report finds aggravating the “planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation.”  (See rule 421, subd. (a)(8).)   The probation officer also wrote the word “repetition” in the report.   We express no opinion about the applicability of this factor.   However, if applicable here, it would also probably apply in every resident child molester case.   For this reason further elaboration would be particularly helpful in understanding how and why the facts showing premeditation in this case made the offenses worse than they ordinarily would have been.  (See People v. Young (1983) 146 Cal.App.3d 729, 734, 194 Cal.Rptr. 338 [aggravating factor must make offense distinctively worse than it would ordinarily have been].)

The probation report also lists as aggravating the “defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness.”  (See rule 421, subd. (b)(2).)

 Incorporation of this factor is problematic because the court used defendant's prior rape conviction to enhance his sentence.   Since such an enhancement is, in effect, a consecutive sentence, the prior conviction could again be used to impose consecutive sentences under sections 1170.1, subdivision (b) and/or 667.6, subdivision (c).  (People v. Reeder (1984) 152 Cal.App.3d 900, 918–919, 200 Cal.Rptr. 479.)   However, here, the court's blanket incorporation resulted in the improper use of the prior conviction both to enhance and impose an aggravated term.  (Ibid.;  People v. Coleman, supra, 48 Cal.3d at p. 163, 255 Cal.Rptr. 813, 768 P.2d 32;  Rule 441, subd. (c).)  To avoid such dual use, the court had to explicitly exclude defendant's prior rape conviction from consideration as an aggravating factor.  (See, e.g., People v. Roberson (1978) 81 Cal.App.3d 890, 894, 146 Cal.Rptr. 777, disapproved on another point in People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10, 190 Cal.Rptr. 165, 660 P.2d 389;  see also People v. Barker (1986) 182 Cal.App.3d 921, 940, 227 Cal.Rptr. 578.)   Incorporation by reference suggests the trial court was not aware of the dual-use danger inherent in this factor.

Moreover, had the court excluded consideration of the prior rape conviction, only two prior convictions would have been left:  one for false imprisonment and the other for possession of stolen property.   Two prior convictions, however, are not “numerous.”  (People v. Berry (1981) 117 Cal.App.3d 184, 191, 172 Cal.Rptr. 756.)   Nor do these prior convictions reflect “increasing seriousness.”   Thus, the applicability of this factor is questionable.

Finally, the report notes that defendant “served prior prison terms whether or not charged or chargeable as an enhancement under Section 667.5.”  (See rule 421, subd. (b)(3).)   The applicability of this factor is equally suspect.   The record reflects that defendant was tried, convicted, and sentenced for rape, false imprisonment, and possession of stolen property and served one prison term for these offenses.   Since the court used this term to impose a one-year enhancement, its further use as an aggravating factor involves an improper dual-use of facts.  (People v. Hurley (1983) 144 Cal.App.3d 706, 710, 192 Cal.Rptr. 805.)

In light of our analysis, it is clear that by incorporation of the probation report, the trial court avoided careful consideration of the report, the sentencing rules, the choices before it, and the facts of the case.   Indeed, the record suggests it was unaware incorporation was improper and would necessarily cause other sentencing errors.   Thus, to say that despite such incorporation, we can meaningfully review the sentence and the court's reasons therefor would be an absolute fiction.

Incorporation by reference, however, was not the trial court's only error.   It failed to provide any reasons for imposing aggravated terms for 154 violations of section 288(a).   And it also failed to provide reasons for imposing consecutive sentences under section 1170.1(a) on these counts.8  (People v. Belmontes, supra, 34 Cal.3d at pp. 346–347, 193 Cal.Rptr. 882, 667 P.2d 686.)   This latter error suggests the court was not aware of this discretionary sentencing choice, a suggestion further supported by the court's introductory remark that it had “no alternative” but to impose the “maximum possible sentence” and the probation report's failure to discuss the factors relevant to imposition of consecutive sentences (Rule 425.).  (Cf. Id. at pp. 347–348 and fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686 [failure to explain use of section 667.6(c) may indicate lack of awareness of discretion].)

Finally, incorporation with respect to the aggravated, consecutive full-term sentence for the section 288(b) count violated the prohibition against dual use of facts to both enhance and impose an aggravated term.  (Rule 441, subd. (c).)

Conceding that the trial court's incorporation by reference was error, the Attorney General claims that its prefatory remarks constitute an adequate alternative statement of reasons.  (Cf. People v. Williams (1984) 157 Cal.App.3d 145, 203 Cal.Rptr. 562 [prefatory remarks reflect adequate reasons for sentencing choices].)

In particular, he notes (1) the “overwhelming and pathetic” nature of R.'s testimony;  (2) defendant's “past conduct”;  (3) the probation officer's view “that the Defendant cannot be rehabilitated”;  (4) that his “repeated deviant behavior” shows an inability or refusal to “conform to the mores of society”;  and (5) that defendant's “behavior is beyond all acceptable norms of society that we live in today.”   We disagree.

 Reasons (1), (4), and (5) are too vague and editorial to constitute meaningful, fact-based reasons for more punitive sentencing choices.   The evidence of defendant's guilt can hardly be considered “overwhelming.”   Even if it were, this fact is not a proper aggravating factor.  (People v. Reeder, supra, 152 Cal.App.3d 900, 921, 200 Cal.Rptr. 479;  see also People v. Smith, supra, 155 Cal.App.3d 539, 202 Cal.Rptr. 259 [nature of crime not proper reason for sentencing choice].)  Moreover, as previously noted, an aggravating factor must make the offense distinctively worse than it would ordinarily have been.  (People v. Young, supra, 146 Cal.App.3d at p. 734, 194 Cal.Rptr. 338.)   Reasons (4) and (5), however, accurately describe all persons convicted of violations of section 288(a), regardless of the particular facts, and do not indicate why defendant's conduct deserves harsher punishment than that of any resident child molester.

 In reason (3) the court merely repeated verbatim the probation officer's poetic personal feeling about defendant and not a conclusion of fact supported by relevant specific evidence on the issue of defendant's amenability to rehabilitation.9  (Cf. People v. Stone (1981) 117 Cal.App.3d 15, 20, 172 Cal.Rptr. 445 [rejecting the court's iteration of probation officer's comment that defendant was “predatory type of individual”].)

Defendant's “past conduct,” reason (2), represents a legitimate, although highly generalized, consideration at sentencing both for purposes of maximizing or minimizing the term imposed.  (See rule 421, subds. (b)(1) through (b)(5);  rule 423, subds. (b)(1) through (b)(6).)   Here, the court's reference could only have indicated a negative view of defendant's “past conduct.”   However, a problem arises because defendant's past conduct includes a prior conviction and prison term for, inter alia, rape.10

Applicable with equal force here is our discussion concerning why incorporation by reference of the fact that defendant suffered prior convictions is an inadequate reason to support the numerous sentencing choices.  (See pp. 153-154, ante.)

Finally, the court's introductory remarks combined with its later attempt to properly explain defendant's sentence still do not demonstrate the court's awareness it was making a discretionary choice to impose 154 aggravated and consecutive sentences for violations of section 288(a).

The Attorney General's fallback position is that any and all sentencing errors by the trial court, taken together, are harmless in light of the aggravating factors and absence of mitigating factors in the probation report.

 The record demonstrates that the trial court simply imposed the maximum sentence possible with only the most cursory explanation.   It failed to appreciate the gravity and complexity of sentencing in a case involving 156 offenses.   And it does not appear to have examined the facts in light of the relevant sentencing factors.   Under these circumstances, it is inappropriate to uphold defendant's sentence simply because we could theoretically manipulate the aggravating factors in the probation report so as to uphold a sentence of 330 years.   Doing so would make a travesty of proper sentencing procedure.   Under the rubric of harmless error, we would, in effect, institute a two-step sentencing procedure for this case:  the trial court set the length of the sentence;  and we provide the factual justification.   Such an underlying procedural reality, however, is clearly at odds with our admonition to trial courts not to reason backward to justify a particular, arbitrarily chosen length of sentence.  (People v. Swanson (1983) 140 Cal.App.3d 571, 574, 189 Cal.Rptr. 547;  see People v. Stevens (1988) 205 Cal.App.3d 1452, 1457, 253 Cal.Rptr. 173;  see also People v. Lepe (1987) 195 Cal.App.3d 1347, 1351, 241 Cal.Rptr. 388.)

It is also inconsistent with the important interests served by requiring trial courts to articulate “in simple language the primary factor or factors that support the exercise of discretion” (Rule 443):  “it is frequently essential to meaningful review;  it acts as an inherent guard against careless decisions, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision;  and it aids in preserving public confidence in the decision-making process by helping to persuade the parties and the public that the decision-making is careful, reasoned and equitable.”  (People v. Martin (1986) 42 Cal.3d 437, 449–450, 229 Cal.Rptr. 131, 722 P.2d 905.)

In any event, the trial court's errors were not harmless.   There is an enormous span between the minimum sentence possible or even the probation officer's recommendation and the sentence imposed.   Defendant's sentence reflects several different types of sentencing choices, and in imposing aggravated and consecutive terms for each offense, the court technically made over 300 choices.11  Under the circumstances, we do not find it reasonably probable the trial court would have imposed the harshest sentence possible had it actually analyzed the probation report, relevant sentencing criteria, and the qualitative weight of the aggravating factors.

Disposition

 We affirm defendant's conviction but remand the matter for resentencing in accordance with this opinion.12

FOOTNOTES

1.   Unless otherwise specified, all further references are to the Penal Code.

2.   On cross-examination, R. could not state which days of the week the molestations took place.   She also indicated that there were some weeks when no molestation took place.   She also could not remember whether she was molested during the week of her last birthday, the week of Christmas, or the week a cousin stayed at the house.

3.   A “resident child molester” is “a person who either resides in the same home with the minor or has unchecked access to the child and repeatedly sexually molests the child over a prolonged period of time.”   (Van Hoek, supra, 200 Cal.App.3d at p. 814, fn. 1, 246 Cal.Rptr. 352.)

4.   The People initially filed an information charging defendant with 155 separate counts of lewd conduct (Pen.Code, § 288, subd. (a)).  Each count alleged that a particular lewd act took place “between August 15, 1985, and July 21, 1987.”   Defendant challenged the information on grounds that the time frame for each count was too broad and denied him adequate notice and the opportunity to prepare a defense.   In response, the People filed an amended information including 156 counts.   Count 1 alleged that R. masturbated defendant between August 15 and August 22, 1985.   Counts 2 through 100 also charged masturbation, but each count specified an act occurring during a different week between August 22, 1985, and July 15, 1987.   Count 101 alleged simulated intercourse on July 20, 1987.   Counts 102 through 152 also charged simulated intercourse, but each count specified an act occurring during a different two-week period between August 22, 1985, and July 20, 1987.   Counts 153 and 154 charged oral copulation, one count alleging its occurrence between August 1985 and August 1986, and the other between August 1986 and August 1987.   Count 155 alleged an act of molestation by force occurring between May 21, 1987, and July 21, 1987.   And count 156 alleged an act on July 21, 1987.

5.   Defendant actually claims that the trial court erroneously denied his motion for mistrial due to juror misconduct.   Technically speaking, defendant did not formally make such a motion.   Rather defense counsel informed the court that a newspaper article concerning the case had appeared in a paper and some of the jurors might have seen it.   She then asked the court to question the jury about it and, if necessary declare, a mistrial.   However, after questioning the only juror who saw the article, the court concluded that “any challenge for cause would be denied.”   We believe the court's comment eliminated the need to formally move for a mistrial and conclude that under the circumstances, defendant may challenge the propriety of the court's determination to retain the juror.

6.   Although the probation report also discussed the factors relevant to the granting of probation, we need not enumerate them here, for defendant does not claim that the court erred in denying probation.All references to rules are to the California Rules of Court.

7.   The court could use the same reasons for imposing the two different types of consecutive sentences, but it was nevertheless required to identify “the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c).”  (People v. Belmontes, supra, 34 Cal.3d at p. 348, 193 Cal.Rptr. 882, 667 P.2d 686.)We also note that since a violation of section 288, subdivision (a), is deemed a “violent felony” under section 667.5, subdivision (c)(6), the double-base-term limitation in section 1170.1, subdivision (g) is not applicable.  (People v. Stephenson (1984) 160 Cal.App.3d 7, 9–12, 206 Cal.Rptr. 444.)

8.   The court was not, however, required to provide separate reasons for each consecutive sentence.  (People v. Smith (1984) 155 Cal.App.3d 539, 545, 202 Cal.Rptr. 259.)

9.   After summarizing the offenses, the probation report states, “It is clear this defendant cannot be rehabilitated.   He has shown by his repeated deviant behavior that he cannot or will not conform to the mores of society.   He should be well on his way to spending his life in an institution where the walls are steel and the doors are iron.”

10.   Citing the information, the Attorney General incorrectly asserts that defendant suffered two prior rape convictions.   Although the information separately alleged a prior rape conviction and a prior prison term served for a rape conviction, the two allegations refer to the same superior court case number, indicating that defendant suffered only one rape conviction.

11.   We do not mean to suggest that the court must separately state a reason for each choice.   It must, however, explicitly demonstrate an awareness of both the different types and the number of choices it is making.

12.   We reject defendant's request that the matter be referred to a different sentencing judge and are confident that the original judge can and will sentence defendant in light of our discussion and solely on the basis of the proper criteria.  (Cf. People v. James, 208 Cal.App.3d 1155, 1167, fn. 7.)

CAPACCIOLI, Acting Presiding Judge.

PREMO and ELIA, JJ., concur.