Metropolitan News-Enterprise


Wednesday, August 7, 2002


Page 1


C.A. Applies One-Strike Law to Simultaneous Convictions


By a MetNews Staff Writer


A defendant who is simultaneously convicted of two serious sex crimes, one of which occurred before the one-strike law was enacted and another afterwards, may be punished under the recidivist provision of that statute, this district’s Court of Appeal has ruled.

The court Monday rejected Francisco J. Alvarez’s contention that the application of the 1994 law to his case violates the ex post facto clauses of the state and federal constitutions.        

Alvarez raised his girlfriend’s two daughters—who incorrectly believed he was their biological father—after their mother abandoned them and left the country.

He was charged with the rape of the younger daughter in 1999. Elizabeth A., as she was identified in the opinion, was 18 at the time, and Alvarez was charged with having committed two counts of forcible rape.

He was charged at the same time with having engaged in continuous sexual abuse of Elizabeth’s sister, Dolores A., between 1990—when she was 9 years old—and 1993, and with having molested her on three specific occasions within that time period.

Los Angeles Superior Court Judge David Wesley tried the case without a jury. He found Alvarez guilty on all counts, then dismissed the continuous sexual abuse charge when the prosecution elected to have Alvarez sentenced for the specific offenses instead.

The statute on continuous sexual abuse, sometimes referred to as the “resident child molester” law, permits an adult who has committed a series of sexual offenses against a child to be convicted without the necessity of a unanimous jury verdict on each specific incident.

A defendant may be tried for both continuing sexual abuse and for specific offenses committed against the child during the same time period, and may be sentenced for one or the other, but not both, if convicted. The court held yesterday that the prosecution may choose whether the defendant is sentenced for continuous sexual abuse or for the specific offenses, rejecting the defense contention that the law requires sentencing on the continuous abuse count.

Wesley found that Alvarez was a multiple offender under the one-strike law. The law mandates a sentence of either 15 years to life, or 25 years to life, in prison if a defendant commits a serious sex crime under specified circumstances, and one such circumstance is that the defendant has been convicted of committing a serious sex crime against another victim.

Wesley sentenced Alvarez to 15 years to life for committing a forcible lewd act on Dolores A., a consecutive term of 15 years to life for raping Elizabeth A., and concurrent terms of eight years each on the other counts.

Alvarez’s court-appointed appellate attorney, Edward H. Schulman, argued that because the offenses against Dolores all occurred before the adoption of the one-strike law, Alvarez could not be sentenced under that law for those crimes. And because the operation of the one-strike law as to the offenses against Elizabeth A. was contingent upon Alvarez being convicted of the crimes against her sister, the sentence for raping Elizabeth could not stand either, the defense argued.

The attorney general conceded that the first argument was correct, and the Court of Appeal remanded for resentencing on the pre-1994 offenses. But Deputy Attorney General J. Michael Lehmann argued, and the Div. Two panel agreed, that because the offenses against the younger sister occurred after the law took effect, Alvarez was correctly sentenced for those crimes regardless of when the offenses against the older sister occurred.

The court cited People v. James (2001) 91 Cal.App.4th 1147. The court in that case upheld a three-strikes sentence for a crime committed on March 17, 2000, a few days after the passage of urgency legislation expanding the list of serious or violent felonies for which such a sentence could be imposed.

The defendant’s prior convictions were for assault with a firearm and discharge of a firearm at an inhabited building, and it was argued that they could not be treated as strikes because they were not classified as violent and serious felonies at the time they occurred. But the appeals court held that the commission date of the new offense was dispositive for ex post facto purposes and the commission date of the priors was irrelevant.

The same reasoning applies to Alvarez, the court said yesterday.

“Because appellant raped Elizabeth after the effective date of the one strike law, that law was not applied to conduct occurring before its adoption,” Presiding Justice Roger Boren explained. “[Penal Code] Section 667.61, subdivision (e)(5), does not require that the crimes against the other victim have been subject to the one strike law when they were committed.”

The case is People v. Alvarez, 02 S.O.S. 4104.


Copyright 2002, Metropolitan News Company