P. v. Carbajal 7/5/11 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B222615

Case Date: 10/12/2011

Preview:Filed 7/5/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. VALENTIN CARBAJAL, Defendant and Appellant.

B222615 (Los Angeles County Super. Ct. No. BA316526)

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry Paul Fidler, Judge. Affirmed in part; reversed and remanded in part. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent. _______________

Appellant Valentin Carbajal was convicted, following a jury trial, of three counts of lewd acts on a child in violation of Penal Code1 section 288, subdivision (a). The jury was unable to reach verdicts on 10 other counts, and the trial court declared a mistrial. A retrial followed, and appellant was convicted of one count of lewd acts, one count of forcible rape in violation of section 261, subdivision (a)(2), three counts of attempted forcible rape in violation of sections 664 and 261, subdivision (a)(2), and four counts of forcible oral copulation in violation of section 288a, subdivision (c)(2). The jury found true the allegation that appellant committed an offense specified in section 667.61 against more than one victim. The trial court sentenced appellant to a total of 83 years to life in state prison, which included two consecutive terms of 15 years to life imposed pursuant to section 667.61. Appellant appeals from the judgment of conviction, contending that the true finding on the section 667.61 allegation must be reversed. We agree. We reverse the finding and remand for resentencing.

Facts The underling facts can be briefly summarized, as they are not relevant to the issue on appeal. The victims in this case were Z. C. and Jessica R. The two girls are stepsisters. Appellant is Z.C.s biological father. Appellant was married to Jessica's biological mother, Ruth. At the time of the offenses in this case appellant, Z.C., Jessica, and Ruth all lived together.

Procedural facts In the third amended information in this case, appellant was charged with 13 counts of sexual offenses against Z.C. and Jessica. Counts 10, 11 and 12 alleged that appellant committed lewd acts upon a child in violation of section 288, subdivision (a). The victim of those counts was Jessica. The victim in the other counts was Z.C. The
1

All further statutory references are to the Penal Code unless otherwise indicated. 2

information contained the following allegation: "It is further alleged, within the meaning of Penal Code sections 667.61(a), (b) and (e), as to defendant, VALENTIN CARBAJAL, as to counts(s) 1, 2, 6, 7, 8, 9, 10, 11, 12, and 13 that the following circumstances apply: The defendant in the present case committed an offense specified in Penal Code section 667.61, subdivision (c), against more than one victim." The trial court instructed the jury about this allegation as follows: "If you find the defendant guilty of two or more sex offenses, as charged in Counts 1, 2, 6, 7, 8, 9, 10, 11, 12 & 13, you must then decide whether the People have proved the additional allegation that those crimes were committed against more than one victim. [

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