In re Vaquera

• Decision Date: 28 August 2019
• Docket Number: G056786
• Citation: 39 Cal.App.5th 233,252 Cal.Rptr.3d 158
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Oscar Manuel VAQUERA on Habeas Corpus.

39 Cal.App.5th 233

252 Cal.Rptr.3d 158

IN RE Oscar Manuel VAQUERA on Habeas Corpus.

G056786

Court of Appeal, Fourth District, Division 3, California.

Filed August 28, 2019

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

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

OPINION

MOORE, ACTING P. J.

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

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

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

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

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

IFACTS AND PROCEDURAL BACKGROUND

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

The Information

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

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

Trial Court Proceedings

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

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

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

On September 26, 2014, the trial court sentenced Vaquera to a total prison term of 25 years to life. The court imposed a 25-year-to-life sentence as to count two. The court imposed a 15-year-to-life sentence as to count one, to run concurrent to count two. The court stayed (§ 654), or ran concurrent, the prison terms for the three child pornography counts, as well as the substantial sexual conduct allegation.

Subsequent Proceedings

On October 5, 2016, this court filed an opinion affirming the judgment. (People v. Vaquera (Oct. 5, 2016, G050801) [nonpub. opn.].)

On August 25, 2017, the California Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court indicating that the abstract of judgment may be in error or incomplete: " Penal Code Section 667.61(a) and (b) are for Sex Offenders and section (a ) shall be punished by imprisonment in the state prison for 25 years to Life and section (b ) shall be punished by imprisonment in the state prison for 15 years to Life. As the terms in Counts 1 and 2 coincide with being sentenced pursuant to PC 667.61(b) we have recorded Counts 1 and 2 as such. If this is not in accordance with the Court's intent, please advise this office."

On March 2, 2018, the trial court conducted a hearing regarding the CDCR letter. After hearing arguments, the court issued a ruling that "declines to change the sentencing minute order or the abstract of judgment in the case." The court ruled: "The minute order correctly states the sentence to be 25 years to life. The Information alleged that count one occurred on or about and between October 18, 2007 and October 17, 2008. At that time the sentence prescribed by law for the crime and allegation was 15 years to life. The Information alleges that count two occurred on or about and between May 1, 2011 and March 1, 2012. By this time the law had changed. Pursuant to Penal Code section 667.61(j)(2) (added in 2010), the sentence prescribed by law for the crime and allegation was 25 years to life. The Court correctly sentenced defendant to [the] sentences prescribed by law - 15 years to life on count 1 and 25 years to life on count 2. Because the Court sentenced defendant concurrently on those counts, the total sentence on counts 1 and 2 was 25 years to life."

On September 11, 2018, Vaquera filed a petition for a writ of habeas corpus in this court, arguing that his 25-year-to-life sentence violates due process. Vaquera's prayer for relief requested that the sentence be vacated and that he be resentenced to a 15-year-to-life prison term. ( § 667.61, subd. (b).) We summarily denied the habeas corpus petition.

On November 16, 2018, Vaquera filed a petition for review. The California Supreme Court granted the petition and later transferred the matter back to this court with directions to vacate our "order denying the petition for writ of habeas corpus, and to issue an order directing respondent to show cause in that court why petitioner is not entitled to the relief requested." (See Cal. Rules of Court, rule 8.385(d) ["order to show cause does not grant the relief sought"].)

IIDISCUSSION

Vaquera argues that his due process rights were violated because the trial court imposed a 25-year-to-life sentence under section 667.61, subdivision (j)(2), which was not specifically alleged in the information. The Attorney General argues that Vaquera's claim is barred on waiver and timeliness grounds. Alternatively, the Attorney General argues that the information gave Vaquera fair notice of a possible 25-year-to-life sentence because the information referred to section 667.61, subdivision (b), which includes an exception for a 25-year-to-life sentence under subdivision (j)(2).

We reject the Attorney General's waiver and timeliness objections because Vaquera is claiming that the court imposed an unauthorized sentence; Vaquera can essentially raise that claim at any time, so long as he remains in custody. (See People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 ; In re Harris (1993) 5 Cal.4th 813, 838-841, 21 Cal.Rptr.2d 373, 855 P.2d 391.) However, we agree with the Attorney General on the merits. The information gave Vaquera fair notice of a possible 25-year-to-life sentence under section 667.61, the One Strike law.

A. The information complied with due process principles.

It is a fundamental rule of due process that a defendant must be given fair notice of any alleged crimes in order to mount a possible defense. ( U.S. Const., 6th Amend. ["the accused shall enjoy the right ... to be informed of the nature and cause of the accusation"]; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) A defendant's right to fair notice applies equally to "allegations that will be invoked to increase the punishment for his or her crimes." ( People v. Houston (2012) 54 Cal.4th 1186, 1227, 144 Cal.Rptr.3d 716, 281 P.3d 799.)

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