Filed 7/14/15 P. v. Carreon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065896

Plaintiff and Respondent,

v. (Super. Ct. No. SCD245606)

HECTOR MANUEL CARREON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Judgment affirmed; remanded for resentencing.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent. The trial court found defendant Hector Carreon guilty of 16 counts of lewd acts on

a child, in violation of Penal Code1 section 288, subdivision (a), based on conduct

occurring in 2001 or 2002 in which he sexually assaulted two named victims on three

separate occasions. The court sentenced Carreon to 15 years to life on each count, to run

consecutively to each other, for a total term of 240 years to life, and ordered the sentence

to run concurrently with a sentence imposed in a federal case that arose, in part, from

Carreon's possession of a videotape depicting his three assaults on the victims.

On appeal, Carreon argues only one 15-year-to-life term per victim per occasion

was permissible under the pre-2006 version of the one strike law (former § 667.61), and

therefore the maximum permissible term was 45 years to life.2 He also asserts

California's statutory and constitutional double jeopardy protections barred prosecution

and sentencing in the state proceeding because he was already punished for the sexual

assaults in the federal proceeding. He finally claims remand for resentencing is necessary

because the trial court failed to consider his probation eligibility.

1 All further statutory references are to the Penal Code unless otherwise specified.

2 Carreon's opening brief also asserted a 240-year-to-life sentence violated the ban on cruel and unusual punishment. However, because the People have conceded (and we agree) he could not be sentenced to 240 years to life, Carreon withdraws that claim because he acknowledges three consecutive 15-year-to-life terms would not violate the ban on cruel and unusual punishment. 2 I

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In June 2012, the United States government executed a search warrant on

Carreon's home after authorities became aware his home internet connection was

involved with child pornography. Agents executed a search warrant on Carreon's home

and arrested him. During the search, they found a videotape, depicting Carreon

molesting his great-niece (A.), apparently filmed sometime in June 2012.

Three days later, Carreon's wife found additional materials, including a videotape

containing three clips depicting "three different scenes," which she turned over to federal

agents. In the first clip, which lasted approximately 51 minutes and was filmed in the

family home in approximately 2002), Carreon molested a niece (V.) and committed

multiple lewd acts against her. These acts formed the basis for the charges contained in

counts 1 through 7. In the second clip, lasting approximately 20 minutes and also filmed

in the family home in approximately 2001 or 2002, Carreon molested another niece (B.)

and committed multiple lewd acts against her. In the third clip, lasting approximately 12

minutes and also filmed in the family home in approximately 2001 or 2002, Carreon

again molested B. by committing multiple lewd acts against her. The lewd acts by

Carreon against B. depicted in the second and third clips formed the basis for the charges

contained in counts 8 through 16. The trial court, as trier of fact, watched the videotape

and found Carreon guilty of all 16 counts and all specially alleged facts.

3 B. The Sentence

The court sentenced Carreon to 15 years to life on each of the 16 counts, to run

consecutively to each other, for a total term of 240 years to life. It also ordered the

sentence to run concurrently with a sentence imposed in a federal case (U.S. v. Carreon

(S.D. Cal.) No. 12CR3419-JAH) that apparently arose, in part, from Carreon's possession

of child pornography.

II

ANALYSIS

A. The Trial Court Erroneously Imposed 16 Consecutive Terms

Carreon asserts, and the People agree, that under the version of the one strike law

in effect at the time of the crimes, our Supreme Court's decision in People v. Jones

(2001) 25 Cal.4th 98 makes clear the trial court was limited to imposing a single life term

for each separate attack, regardless of the number of discrete crimes committed against

the victim during that separate attack, because the evidence showed all of the charged

offenses occurred "during an uninterrupted time frame and in a single location." (Id. at

p. 107 ["sex offenses [occur] on a 'single occasion' if they were committed in close

temporal and spatial proximity"; held: only single life sentence, rather than three

consecutive life sentences, for a sequence of sexual assaults by defendant against one

victim occurring during uninterrupted time frame and in single location].) We vacate the

sentence and remand the matter for resentencing. On remand, the trial court is authorized

to impose one life term under former section 667.61 for any single occasion, and on

remand the trial court must determine which counts shall be sentenced pursuant to former

4 section 667.61, and sentencing on other counts shall be imposed as authorized under any

other law, including the then-existing section 667.6, if applicable.3 (Stats. 1998, ch. 936,

§ 9, p. 6876.) (See People v. Simmons (2012) 210 Cal.App.4th 778, 797-798.)

B. Sentencing for the Assaults Is Not Barred by California Law

Carreon asserts California's double jeopardy protections barred the present

prosecution and sentence because he was punished in the federal action for the same

conduct that was the subject of the present prosecution.

Double Jeopardy Principles

"Both the United States and California Constitutions provide that a person may not

twice be placed in jeopardy for the same offense." (People v. Scott (1997) 15 Cal.4th

1188, 1201.) Although prosecution for the same act by different sovereigns is not barred

by the Fifth Amendment to the United States Constitution guarantee against double

jeopardy, states may provide greater double jeopardy protection than is afforded by the

federal Constitution. (People v. Lazarevich (2001) 95 Cal.App.4th 416, 421.) In

California, the relevant protections are contained in sections 793 and 656. (Lazarevich, at

p. 421.) Section 793 provides that "[w]hen an act charged as a public offense is within

the jurisdiction of the United States, or of another state or territory of the United States,

as well as of this state, a conviction or acquittal thereof in that other jurisdiction is a bar

to the prosecution or indictment in this state." Section 656 similarly provides that

3 As previously noted (see fn. 2, ante), our disposition renders moot Carreon's subsidiary claim that a 240-year-to-life sentence violates the ban on cruel and unusual punishment. Additionally, our determination that the matter requires remand for resentencing also renders moot Carreon's claim that remand is necessary based on the court's failure to articulate why it did not consider Carreon's eligibility for probation. 5 "[w]henever on the trial of an accused person it appears that upon a criminal prosecution

under the laws of the United States, or of another state or territory of the United States

based upon the act or omission in respect to which he or she is on trial, he or she has been

acquitted or convicted, it is a sufficient defense." "The difference between sections 793

and 656 'is of no legal significance; neither statute provides greater protection than the

other.' " (Lazarevich, at p. 421, quoting People v. Walker (1981) 123 Cal.App.3d 981,

985, fn. 1.)

To determine whether a defendant has been placed once in jeopardy in another

jurisdiction, the court must consider the physical elements of each crime. (People v.

Lazarevich, supra, 95 Cal.App.4th at p. 421.) "Construing the words ' "act or omission" '

as they are used in section 656, the Supreme Court in People v. Belcher (1974) 11 Cal.3d

91, 99 . . . explained that 'a defendant may not be convicted after a prior acquittal or

conviction in another jurisdiction if all the acts constituting the offense in this state were

necessary to prove the offense in the prior prosecution [citation]; however, a conviction

in this state is not barred where the offense committed is not the same act but involves an

element not present in the prior prosecution.' " (People v. Davis (2011) 202 Cal.App.4th

429, 437 (Davis).)

Ordinarily, it is the defendant's burden to establish the facts demonstrating he or

she has been placed in double jeopardy by reason of a prior conviction or acquittal.

(People v. Burkhart (1936) 5 Cal.2d 641, 643; People v. Morales (2003) 112 Cal.App.4th

1176, 1187; People v. Mason (1962) 200 Cal.App.2d 282, 285.) On appeal, "[w]hen the

double jeopardy question requires the trial court to resolve disputed facts, the appellate

6 court reviews the case under the substantial evidence standard. [Citation.] But, when the

facts are uncontradicted and different inferences cannot be drawn, the question of former

jeopardy is one of law for the court to decide. [Citation.] Moreover, determination of

whether double jeopardy applies in a case involving separate prosecutions of the same or

similar conduct in different jurisdictions requires the court to compare and construe the

applicable criminal statutes from both jurisdictions. [Citations.] The construction of a

statute is also a question of law. [Citation.] On appeal, we review questions of law de

novo." (Davis, supra, 202 Cal.App.4th at p. 438.)

Analysis

The record indicates Carreon's federal convictions were not predicated on the same

acts constituting the offenses charged in the present case,4 and he does not contend to the

contrary. This ordinarily would be fatal to a double jeopardy claim, because " 'a

conviction in this state is not barred where the offense committed is not the same act but

involves an element not present in the prior prosecution.' " (Davis, supra, 202

Cal.App.4th at p. 437.)

Carreon instead predicates his claim of a double jeopardy violation on his

contention that, because the sentence imposed by the federal court was enhanced based in

4 Carreon's showing falls short of satisfying his burden of establishing the facts demonstrating he has been placed in double jeopardy by reason of the federal conviction. Instead, the record at most shows he was convicted in the federal action of six counts, five of which were alleged to have occurred between 2010 and 2012, and the sixth alleged to have occurred in 2004. In contrast, the physical acts underlying the present convictions were apparently based on conduct in approximately 2002 to 2003 as to victim V., and between 2001 and 2002 as to victim B. Carreon has failed to satisfy his burden of showing the factual basis for the federal convictions involved the same physical acts as the acts underlying the present convictions. 7 part on the molestations he committed in 2001 and 2002, he was punished by the federal

court for the same conduct that underlay the present action. We are not persuaded by his

argument, for two reasons. First, it is Carreon's burden to establish the facts

demonstrating the alleged double jeopardy violation (People v. Burkhart, supra, 5 Cal.2d

at p. 643; People v. Morales, supra, 112 Cal.App.4th at p. 1187), and he has not done so

here. Although the transcript from the sentencing hearing in federal court5 does indicate

the sentencing judge "increased the base offense level" because of Carreon's "sexual

contact with the victim," the transcript does not identify which victim the court was

adverting to, or when such sexual contact occurred, and therefore Carreon has not

demonstrated the sentencing judge increased the base offense level based on the same

sexual contact with the same victims as was involved in the criminal charges brought in

the present case.6

More importantly, even if his federal sentence was elevated by consideration of

the same facts forming the basis for his convictions here, Carreon cites no authority

suggesting that selection of a sentence for a distinct crime based on such facts would

trigger either federal or California double jeopardy protections. The United States

5 We have granted Carreon's request to take judicial notice of the reporter's transcript of the sentencing hearing in the federal action.

6 There is some evidence of a videotape involving sexual conduct with a different great-niece (A.), and that there was sexual misconduct with A. occurring in 2012. Because the federal record does not identify who the "victim" mentioned by the sentencing judge was that suffered from the sexual contact, it is unclear that Carreon's federal sentence was in fact "elevated" based on the same sexual contact that was the basis for the state convictions. 8 Supreme Court explained in U.S. v. Watts (1997) 519 U.S. 148 that a sentencing court,

when calculating a sentence under the United States Sentencing Guidelines Manual,

could properly consider the facts underlying a charge on which the jury returned a verdict

of not guilty without violating the federal double jeopardy clause, reasoning those

"sentencing enhancements do not punish a defendant for crimes of which he was not

convicted, but rather increase his sentence because of the manner in which he committed

the crime of conviction." (Watts, at p. 154.)

The Watts court relied on its prior decision in Witte v. U.S. (1995) 515 U.S. 389,

which appears indistinguishable from the facts presented here. In Witte, the defendant

suffered a prior conviction and was subjected to an enhanced sentence in that first

proceeding based on certain facts. The defendant was subsequently indicted for crimes

based on those same facts, and the defendant moved to dismiss, arguing he had already

been punished for the newly charged offenses because the drugs involved in those

transactions had been considered as relevant conduct at sentencing for the prior offense.

(Id. at pp. 393-395.) The Witte court, noting its prior decisions had "specifically . . .

rejected the claim that double jeopardy principles bar a later prosecution or punishment

for criminal activity where that activity has been considered at sentencing for a separate

crime" (Witte, at p. 398, citing Williams v. Oklahoma (1959) 358 U.S. 576), adhered to its

approach and ruled that "[b]ecause consideration of relevant conduct in determining a

defendant's sentence within the legislatively authorized punishment range does not

constitute punishment for that conduct, the instant prosecution does not violate the

Double Jeopardy Clause's prohibition against the imposition of multiple punishments for

9 the same offense." (Id. at p. 406.) Accordingly, and as explained by Watts, "a sentencing

court could, consistent with the Double Jeopardy Clause, consider uncharged [criminal

acts] in imposing a sentence on [a separate charge] that was within the statutory range,

without precluding the defendant's subsequent prosecution for the [uncharged criminal

acts]." (U.S. v. Watts, supra, 519 U.S. at pp. 154-155.) The analysis in Witte and Watts

is fatal to Carreon's double jeopardy argument under the federal Constitution.

Carreon nevertheless argues that, because states may provide greater double

jeopardy protections than are afforded under the federal Constitution (People v. Homick

(2012) 55 Cal.4th 816, 839), the California proscriptions against double jeopardy bar this

prosecution. However, he cites no pertinent California cases supporting his claim, and

the analogous authorities appear to foreclose this argument. In People v. Johnson (2015)

60 Cal.4th 966, the defendant asserted the state could not introduce (during the penalty

phase of a capital prosecution) evidence he was guilty on a prior murder charge dismissed

pursuant to defendant's negotiated no-contest plea to voluntary manslaughter because it

would violate the proscription against double jeopardy. Rejecting that claim, Johnson

observed " '[t]he presentation of evidence of past criminal conduct at a sentencing hearing

does not place the defendant in jeopardy with respect to the past offenses. He is not on

trial for the past offense, is not subject to conviction or punishment for the past offense,

and may not claim either speedy trial or double jeopardy protection against introduction

of such evidence.' [Quoting People v. Visciotti (1992) 2 Cal.4th 1, 71.]" (People v.

Johnson, supra, 60 Cal.4th at p. 995.) The Johnson court also cited with approval its

prior opinion in People v. Melton (1988) 44 Cal.3d 713, in which it observed that "one is

10 not placed 'twice in jeopardy for the same offense' when the details of misconduct which

has already resulted in conviction and punishment, or in dismissal pursuant to a plea

bargain or for witness unavailability, are presented in a later proceeding on the separate

issue of the appropriate penalty for a subsequent offense." (Melton, at p. 756, fn. 17.)

Because these cases make clear the presentation of evidence of past criminal

conduct at a sentencing hearing or other proceeding for purposes of determining whether

an elevated sentence may be imposed for a current crime does not place the defendant in

jeopardy with respect to the past offenses under California's double jeopardy protections,

the federal court's consideration of Carreon's criminal conduct toward V. and B. at the

federal sentencing hearing (and imposition of an enhanced sentence based thereon) did

not bar the present prosecution under California's double jeopardy protections.

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is

remanded to the trial court for resentencing in accordance with this opinion.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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