People v. Foley
| Decision Date | 23 October 2020 |
| Docket Number | B299677 |
| Citation | 56 Cal.App.5th 401,270 Cal.Rptr.3d 467 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jeffery Alan FOLEY, Defendant and Appellant. |
David M. Thompson, Corte Madera, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven E. Mercer and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jeffery Alan Foley was convicted of sexually molesting his two granddaughters, F. and A. Foley molested F. over a period of years, but she did not immediately disclose the abuse. Thereafter, Foley molested A., who immediately reported his conduct. He pled guilty to committing a lewd and lascivious act against A., and was sentenced to prison. Approximately two years later, F. disclosed that Foley had sexually molested her as well. Foley was then tried and convicted of various sex crimes against F. The trial court sentenced him on three counts pursuant to the "One Strike" law, Penal Code section 667.61,1 based on the jury's true finding that he had "been convicted in the present case or cases of committing" a specified offense "against more than one victim." ( § 667.61, subd. (e)(4).) Foley argues that this multiple victim circumstance does not apply when the crimes against multiple victims are prosecuted in separate proceedings. Accordingly, he contends the court misinstructed the jury on the multiple victim circumstance and his One Strike sentence is unauthorized. We agree that the multiple victim circumstance does not apply here. Accordingly, we order it stricken and the matter remanded for resentencing. In all other respects, we affirm the judgment of conviction.
F. and A. Doe are identical twins. Appellant Foley is their paternal grandfather. As children, the twins frequently visited Foley and their grandmother, at the grandparents’ residence.
On February 7, 2015, when 12-year-old A. was visiting the grandparents, Foley reached his hand into her pants and rubbed her vagina beneath her clothing. A. reported the incident to her mother. Foley admitted his conduct to a detective. On November 6, 2015, in Los Angeles County Superior Court case No. KA109342, Foley pled no contest to one count of committing a lewd and lascivious act on A., a child under 14 years of age, in violation of section 288, subdivision (a). He was sentenced to three years in prison.
Approximately two years later, F. disclosed that Foley had sexually molested her over a period of years, prior to his offense against A. The abuse included touching her breasts and vagina, digital penetration, and oral copulation; Foley also showed her pornographic material. Consequently, Foley was charged in October 2018, in case No. KA115001, with various sexual offenses against F. An amended information was later filed. The offenses were alleged to have transpired between May 23, 2009 and May 22, 2015. Neither the original nor the amended information alleged Foley committed offenses against any other specific victim, but did allege a multiple victim circumstance under the One Strike law as to counts 6, 7, and 8. ( § 667.61, subd. (e).)
At trial, A. testified regarding Foley's conduct against her. Foley stipulated that he had been previously convicted of molesting A. He served time in prison as a result.
During trial, the court asked the parties about the "multiple victim instruction." It observed that the standard CALCRIM instruction presupposed that charges against multiple victims were all brought in the same case. Without objection from the defense, the court ultimately instructed with a modified version of CALCRIM No. 3181. As relevant here, it stated: The court also instructed with CALJIC No. 1.12, which stated in pertinent part:
The jury convicted Foley of three counts of committing a lewd act upon a child under 14 (§ 288, subd. (a), counts 6, 7, and 8) and two counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b), counts 2 and 3).3 F. was the named victim in all counts. The jury also found true the allegation that "pursuant to Penal Code section 667.61(b)(e) [sic ], that the crimes involved more than one victim involving lewd and lascivious acts upon a child ...."
The trial court sentenced Foley to 60 years to life, configured as follows: on count 2, 15 years to life; on count 3, a concurrent term of 15 years to life; and, under the One Strike law, consecutive terms of 15 years to life on counts 6, 7, and 8. It imposed a $10,000 restitution fine, a suspended parole revocation restitution fine in the same amount, a sexual abuse fine and related penalty assessment and surcharge, a court operations assessment, and a criminal conviction assessment.
Foley filed a timely notice of appeal.
a. The One Strike law
Section 667.61, commonly known as the "One Strike" law, sets forth an alternative and harsher sentencing scheme for certain sex crimes when the People plead and prove the offenses were committed under specified circumstances. ( People v. Hammer (2003) 30 Cal.4th 756, 759, 134 Cal.Rptr.2d 590, 69 P.3d 436 ; People v. Perez (2015) 240 Cal.App.4th 1218, 1223, 193 Cal.Rptr.3d 230.) Subject to exceptions provided in subdivisions (j), (l), and (m), section 667.61 provides that a defendant must be sentenced to an indeterminate life term when convicted of a sex offense enumerated in section 667.61, subdivision (c), under one or more of the circumstances listed in subdivisions (d) or (e) of the statute.4 (See People v. Wutzke (2002) 28 Cal.4th 923, 930, 123 Cal.Rptr.2d 447, 51 P.3d 310 ; People v. Perez , at p. 1223, 193 Cal.Rptr.3d 230.) Specifically, if the defendant is convicted of a section 667.61, subdivision (c) offense and at least one subdivision (d) or two subdivision (e) circumstances are found true, he or she must be sentenced to a term of 25 years to life. ( § 667.61, subd. (a).) If only one subdivision (e) circumstance is found true, he or she must be sentenced to 15 years to life. ( § 667.61, subd. (b) ; People v. Wutzke , at p. 930, 123 Cal.Rptr.2d 447, 51 P.3d 310.)
Commission of a lewd act upon a child under 14 years old in violation of section 288, subdivision (a)—the crime of which Foley was convicted in counts 6, 7, and 8—is an offense enumerated in subdivision (c). ( § 667.61, subd. (c)(8).) As relevant here, one of the section 667.61, subdivision (e) circumstances is that the defendant "has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." ( § 667.61, subd. (e)(4), italics added; People v. Carbajal (2013) 56 Cal.4th 521, 535, 155 Cal.Rptr.3d 335, 298 P.3d 835.)
b. Contentions
Foley argues that the section 667.61, subdivision (e)(4) multiple victim circumstance applies only when charges against multiple victims are tried in a single proceeding. It cannot apply here, he argues, because he was convicted of the offense against A. in a prior, separate case. Therefore, the trial court committed instructional error, his trial counsel provided ineffective assistance, and his One Strike sentences on counts 6, 7, and 8 were unauthorized. The multiple victim circumstance must be stricken, and the matter remanded for resentencing.
The People argue that there was no instructional or sentencing error because section 667.61, subdivision (e)(4) does not require that crimes against multiple victims must be tried together. A different interpretation of the statute, they argue, would undermine the Legislature's intent.
c. Standard of review
Foley's argument turns on the interpretation of the language in section 667.61, subdivision (e)(4). Interpretation of a statute is a question of law that we review de novo. ( People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148 ; People v. Paige (2020) 51 Cal.App.5th 194, 200, 264 Cal.Rptr.3d 855.) Our task is to determine the Legislature's intent so as to effectuate the law's purpose. ( People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106, 232 Cal.Rptr.3d 714, 417 P.3d 191 ; People v. Howard (2020) 50 Cal.App.5th 727, 737, 264 Cal.Rptr.3d 388.) We look first to the statutory language, giving the words their ordinary and usual meaning and viewing them in context. ( People v. Gonzales (2018) 6 Cal.5th 44, 49–50, 237 Cal.Rptr.3d 193, 424 P.3d 280 ; People v. Paige , at p. 200, 264 Cal.Rptr.3d 855.) If the statute's language is not ambiguous, the plain meaning governs unless a literal interpretation would result in absurd consequences the Legislature did not intend. ( People v. Colbert (2019) 6 Cal.5th 596, 603, 242 Cal.Rptr.3d 665, 433 P.3d 536 ; People v. Flores (2020) 44 Cal.App.5th 985, 992, 258 Cal.Rptr.3d 205.) If the statute's words support more than one reasonable interpretation, we may look to extrinsic aids, including the legislative history and the objects to be achieved by the legislation. ( People v. Ruiz , at p. 1106, 232 Cal.Rptr.3d 714, 417 P.3d 191.)
d. The multiple victim circumstance
The plain language of section 667.61, subdivision (e)(4), requires that for the multiple victim circumstance to apply, the defendant must have been convicted of specified sex crimes against more than one victim in the case or cases currently being tried, rather than in a...
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