Opinion
A127922
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM HENRY BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 50718171)
William Henry Brown (appellant) appeals the sentence imposed following his conviction by jury trial of rape (Pen. Code, § 261, subd. (a)(2)) of Jane Doe 1 (count 1); two counts of forcible oral copulation in concert (§ 288a, subd. (d)) of Jane Doe 2 (counts 2 and 5); forcible rape of Jane Doe 2 (count 3); forcible rape in concert (§ 264.1) of Jane Doe 2 (count 4); false imprisonment by violence (§ 236/237, subd. (a)) of Jane Doe 2 (count 6); forcible rape of Jane Doe 3 (count 7); and false imprisonment by violence of Jane Doe 3 (count 8). The jury found true the multiple victim enhancement allegation. (§ 667.61, subds. (b) & (e).) In a bifurcated proceeding the court found true appellant's prior rape in concert conviction, which brought the case within the one strike law (§ 667.61) and the habitual sexual offender law (§§ 667.6, subd. (a), 667.71). Appellant was sentenced to 84-years-to-life in state prison. His sole contention on appeal is that the court erred in failing to stay the sentences on the count 6 and 8 false imprisonment convictions pursuant to section 654. We agree and remand for resentencing.
All undesignated section references are to the Penal Code.
BACKGROUND
Because appellant's claim on appeal is limited to a sentencing issue, we report the facts only as relevant to that claim.
March 3, 2006 Offenses Against Jane Doe 3
On the evening of March 3, 2006, 15-year-old Jane Doe 3 and her mentally disabled brother, Tony, went to a Burger King in Brentwood. While there, they were approached by the 29-year-old appellant and "Carl." Jane Doe 3 had not previously met Carl or appellant, but knew appellant's brother. Jane Doe 3, Tony, appellant and Carl walked to a nearby Safeway where Carl purchased a can of beer. They then got into a car driven by appellant, drove to a gas station where appellant bought a 30-pack of beer, and drove to an apartment in Pittsburg.
Inside the apartment's kitchen Jane Doe 3, appellant, and Carl talked about the drug Ecstasy. Later, while inside the bedroom, she and Carl talked. Appellant entered the bedroom and said he wanted to talk to Jane Doe 3 alone. Carl left the bedroom and appellant shut and locked the bedroom door. Jane Doe 3 "got kind of nervous." She and appellant sat on the bed; appellant told her she was pretty and he wanted to get to know her. She told him she was already interested in someone else but "wouldn't have a problem being [his] friend." Appellant began rubbing her thigh and said, " 'I just want to feel you one time.' " Jane Doe 3 was "shocked" because she did not know him and did nothing to lead him on. She replied, " 'No, I don't understand what you mean.' " Appellant then grabbed her cell phone from her hand, threw it on the side of the bed, told her to leave it there and she could get it later. He then kept rubbing her legs and trying to kiss her. She moved her head and told him she did not want to.
Appellant then pushed the fully clothed Jane Doe 3 back onto the bed, got on top of her and would not let her get up. He dug his elbow into her chest to hold her down. When she told him it hurt and to stop, he unzipped his pants, pulled her pants down, and pulled her underwear to the side. When she tried to move her legs and get up, he painfully squeezed her legs. When she told him to get off her, he "backhanded" her with his hand across her face and told her to "shut up." He then took out a condom, put it on and raped her. She kept kicking her legs and finally he "gave up." When appellant withdrew his penis, she got up and left the apartment, but returned to get her brother Tony, who was on the couch. She told appellant she and Tony needed a ride. While they stood near the car, appellant opened the trunk, told her to look at the gun inside, and said, " 'Snitches get stitches.' " He told her if she told anyone what happened he would find her. Jane Doe 3, Tony, Carl and appellant got into the car and she had appellant drop her and Tony off at the Brentwood Safeway because she did not want him to know where she lived. After walking home from the Safeway, Jane Doe 3 did not immediately call the police because appellant had threatened her and she was afraid.
March 25, 2006 Offenses Against Jane Doe 2
On March 25, 2006, 15-year-old Jane Doe 2 went to a party at a house in Oakley. Carl, whom she had met through Jane Doe 3, picked Jane Doe 2 up and drove them to the party. At the party Carl introduced Jane Doe 2 to appellant. After about an hour, Carl asked Jane Doe 2 if she wanted to leave the party to go to a friend's house where there were fewer people. Jane Doe 2 agreed, and they left the party in a car driven by appellant. Appellant stopped first to purchase a case of beer. They then drove to an apartment complex in Pittsburg.
Although Jane Doe 2 and Carl had talked on the phone for about a week, this was the first time she met him in person.
Appellant, Carl, and Jane Doe 2 entered an upstairs apartment and Jane Doe 2 and Carl sat on a couch talking; appellant went into the kitchen and then into the bedroom. After Jane Doe 2 talked with Carl for about 20 or 30 minutes, appellant asked her to go with him into the bedroom to talk about Jane Doe 3. Jane Doe 2 told Carl she felt a "little weird" about talking with appellant about Jane Doe 3, but Carl said " '[i]t's fine' " and that he would " 'be right outside the door.' "
Jane Doe 2 went into the bedroom with appellant. Although she told him to keep the door open, he closed and locked it. When she asked him to open the door, he refused. Appellant told her to sit down; she refused. He then said, "stop acting funny style." When she tried to go to the door, he came up behind her, put his arm around her throat and asked her if she wanted to "get whooped." Jane Doe 2 interpreted this as a threat to "beat [her] up." Because his forearm was around her neck she had trouble breathing.
Appellant then brought her toward the bed, sat her down, and punched her left shoulder. When she asked him what he wanted he said he "just wanted to feel [her] one time." She asked him what he meant and he said he "just wanted to stick his penis inside of [her] one time." Jane Doe 2 said "No." He then pushed down her onto the bed, got on top of her, and started removing her pants. She kept telling him, "No, stop," but he did not stop. After removing her pants and underwear, appellant raped her. Jane Doe 2 suffered numerous additional sexual assaults from appellant and Carl. Eventually Jane Doe 2 escaped. About six months later she officially reported the incident to police; she had called police prior to that but did not make a statement.
In her closing argument the prosecutor stated the following as to the count 6 false imprisonment of Jane Doe 2: "Count 6 . . . . The defendant intentionally and unlawfully restrained or detained someone by violence and menace, and the defendant made the person stay or go somewhere against their will. [¶] When the defendant and (Jane Doe 2) were in the bedroom, she tried to get out. She tried to leave. It was the defendant that came up behind her, wrapped his forearm around her neck, threw her back onto the bed and asked her if she wanted to get whooped. It was the defendant that forced her to stay in the bedroom by using violence." As to the count 8 false imprisonment of Jane Doe 3 the prosecutor argued: "Count 8 . . .[T]his is when (Jane Doe 3) and the defendant were in the bedroom, and (Jane Doe 3) tried to leave, and defendant pushed (Jane Doe 3) onto the bed, keeping her there, forcing her to stay there. False imprisonment by violence."
DISCUSSION
Appellant contends the court violated section 654 in imposing consecutive sentences for the false imprisonment convictions in counts 6 and 8; instead both counts should have been stayed. He argues that both Jane Doe 2 and Jane Doe 3 testified that appellant closed and locked the door prior to the sexual assaults and after the sexual assaults were completed, the victims were allowed to leave the room. Thus, he asserts there was no separate or divisible objective between the false imprisonments and the ensuing sexual assaults.
Appellant did not raise a section 654 claim below and the trial court did not address it at sentencing. The claim is not waived despite appellant's failure to raise it below. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Le (2006) 136 Cal.App.4th 925, 931.)
The Attorney General argues that the consecutive sentences on counts 6 and 8 were properly imposed because appellant falsely imprisoned Jane Does 2 and 3 by virtue of his "massive size and strength advantage," while his actions in locking the doors "served to isolate the victims, enhance their fears, and to encourage them not to subsequently report the incident." Thus, locking the doors were separate and gratuitous acts committed with the independent objective of dissuading the victims from reporting the offenses.
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 is intended to ensure that punishment is commensurate with a defendant's criminal culpability. [Citations.] It expressly prohibits multiple sentences where a single act violates more than one statute. For example, a defendant may be guilty of both arson and attempted murder for throwing gasoline into an inhabited room and lighting it, but the single act may be punished only once. [Citation.] [¶] Section 654 also prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective. [Citation.] 'If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.] Thus, in legal effect, different acts that violate different statutes merge under the perpetrator's single intent and objective and are treated as if they were a single act that violates more than one statute. [¶] If, on the other hand, in committing various criminal acts, the perpetrator acted with multiple criminal objectives that were independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
The defendant's intent and objective are factual determinations for the trial court. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.) We review the court's findings in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the court could reasonably deduce from the evidence. (Ibid.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Jane Doe 2
Appellant argues that the false imprisonment of Jane Doe 2 began when he closed and locked the bedroom door prior to sexually assaulting her there and was ongoing throughout the sex assaults by him and Carl. He argues the false imprisonment was committed for the sole purpose of facilitating those assaults and the court erred in failing to stay the sentence on the count 6 false imprisonment conviction. Appellant acknowledges that after the sexual assaults by him and Carl were completed, he briefly attempted to stop Jane Doe 2 from leaving the apartment. However, he appears to argue that, because this act was not relied upon by the prosecution at trial to prove the false imprisonment count, it cannot establish a divisible course of conduct for purposes of imposing multiple punishment under section 654. The Attorney General does not address this argument. She argues that one act of false imprisonment occurred inside the bedroom and another occurred when appellant attempted to prevent her from leaving the apartment after completion of the sexual offenses.
Alternatively, appellant asserts that the evidence does not establish that Jane Doe 2 was imprisoned after the assault ended since appellant ultimately let her leave through the front door.
Although the information charged appellant with a single charge of false imprisonment by violence against Jane Doe 2, the evidence tends to show multiple acts of false imprisonment by violence both before and after the sexual assaults against her. In such circumstances, either the prosecutor had to elect which specific criminal act pertained to the false imprisonment charge, or the court had to give a unanimity instruction that the jury must unanimously agree that appellant committed the same specific act of false imprisonment. (See People v. Russo (2001) 25 Cal.4th 1124, 1132.)The prosecutor may make the required "election" during his or her argument to the jury. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.)
No unanimity instruction regarding the count 6 false imprisonment against Jane Doe 2 was requested or given, and no such issue is raised on appeal.
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Here, the prosecutor's comments during closing argument clearly indicated her election to support the false imprisonment count against Jane Doe 2 based on the evidence that when Jane Doe 2 tried to leave the bedroom, appellant wrapped his arm around her neck, threw her onto the bed and asked her if she wanted to get "whooped." Thus, neither appellant's act of locking the bedroom door prior to the sexual assault nor his act of preventing her from leaving the apartment after the sexual assault could be relied on as establishing a separate intent and objective for purposes of imposing multiple punishment under section 654.
The evidence establishes that appellant forced Jane Doe 2 to stay inside the bedroom by putting his arm around her neck, verbally threatening her with harm, and pushing her down onto the bed. He then immediately sexually assaulted her. We agree with appellant that these actions of violently falsely imprisoning her served no purpose except to facilitate the subsequent forcible rape. Thus, the two-year sentence imposed on the count 6 false imprisonment conviction against Jane Doe 2 should have been stayed pursuant to section 654. Jane Doe 3
Similarly, appellant argues that the false imprisonment of Jane Doe 3 began when he closed and locked the bedroom door prior to sexually assaulting her there and the false imprisonment was committed for the sole purpose of facilitating the sexual assault by him. The Attorney General again asserts that appellant did not need to lock the door because his size and strength advantage were enough to immobilize Jane Doe 3. Thus, any additional advantage he obtained by falsely imprisoning her was "gratuitous."
The prosecutor's comments during closing argument clearly indicated her election to support the false imprisonment count against Jane Doe 3 based on appellant's conduct in the bedroom: when Jane Doe 3 tried to leave, appellant pushed her onto the bed, forcing her to stay there. Thus, appellant's act of locking the bedroom door could not be relied on as establishing a separate intent and objective for purposes of imposing multiple punishment under section 654.
The evidence established that, inside the bedroom, appellant pushed Jane Doe 3 down onto the bed, got on top of her and held her down. He then immediately sexually assaulted her. We agree with appellant that these actions of violently falsely imprisoning her served no purpose except to facilitate the subsequent forcible rape. Thus, the two-year sentence imposed on the count 8 false imprisonment conviction against Jane Doe 3 should have been stayed pursuant to section 654.
DISPOSITION
The matter is remanded for resentencing consistent with the views expressed in this opinion. The judgment is otherwise affirmed.
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SIMONS, J.
We concur. ______________________
JONES, P.J.
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NEEDHAM, J.