For ‘One Strike’ Law’s Multiple Victim Circumstance to Apply, Must Allege Multiple Victims in “Present Case or Cases”

Defendant, Jeffery Foley, was convicted in separate cases of sexually molesting his minor granddaughters, F. and A. Over a period of years, Foley molested A., who did not immediately disclose it. Thereafter, Foley molested F., who immediately disclosed it. Foley pleaded no contest to committing a lewd and lascivious act on A., a child under 14 years of age, in violation of California Penal Code § 288(a). Foley was sentenced to three years in prison.

Two years later, A. disclosed that she too had been sexually molested by Foley (prior to his offense against F.). Although the People did not allege any other victim besides F. in the particular case, the jury received instruction for, and convicted Foley of, the “multiple victim” circumstance under the “One Strike” law. PC § 667.61 (e)(4). Foley appealed the conviction, arguing that the multiple victim circumstance did not apply in the latter case and thus the jury should not have received that particular jury instruction for its consideration.

The ‘One Strike’ Law & “Multiple Victim” Circumstance

CA Penal Code § 667.61 – the “One Strike” law – sets forth a “harsher sentencing scheme for certain sex crimes when the People plead and prove the offenses were committed under specified circumstances.” (See also People v. Hammer (2003); People v. Perez (2015)). Under this statute, a defendant convicted of one subdivision (d) or two subdivision (e) circumstances, must receive a life term of 25-years-to-life. § 667.61, subd. (a).

The “multiple victim” circumstance provides that if a defendant has “been convicted” of a specified offense, “in the present case or cases … against more than one victim,” the sentence must be 25-years-to-life. (PC § 667.61(e)(4), emphasis added.) In determining whether the multiple victim circumstance was applicable in Foley’s case, the Court of Appeal weighed the meaning and intent of the phrase “present case or cases.” 

The Court took the position that, as a matter of law, the term “present” must refer to a case or cases “being currently tried, not to a different case previously tried.” This means that multiple victims must be alleged in either a singular case or in separately filed but related cases being adjudicated contemporaneously. Once there is a final judgment, a case cannot be used or referenced in a subsequently filed case with regard to section 667.61’s multiple victim circumstance. Similarly, the term “cases” may refer to a retrial or resentencing of charges concerning offenses against more than one victim. See People v. Carbajal (2013).

The Foley Court concluded that although Foley was convicted of committing the same offense against two victims, the multiple victim circumstance under § 667.61 (e)(4) did not apply because the first conviction was final two years prior to the filing of the second case. Thus, since there was neither an allegation of multiple victims in either case, nor were the cases “present … cases,” the trial court erred in instructing the jury on the multiple victim circumstance.  

Let Wallin & Klarich Handle Your ‘One Strike’ Case

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