Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F08974
MAURO, J.
A jury convicted defendant Mario Campbell of 20 crimes arising from two incidents: a home-invasion on August 27, 2008, involving residential burglary, robbery, assault with a firearm, forcible sexual penetration, sexual battery, false imprisonment, and attempting to dissuade a witness; and an incident on October 29, 2008, involving possession by a felon of a firearm and possession of cocaine base. The jury also found true a number of enhancements. The trial court sentenced defendant to prison, characterizing the sentence as a determinate term of 101 years 4 months, followed by an indeterminate term of 175 years to life.
Defendant now contends on appeal that (1) there was insufficient evidence to support one conviction for sexual penetration, (2) an instruction for juror unanimity was defective, and (3) certain firearm enhancements were improper. We conclude (1) substantial evidence supports the sexual penetration convictions, (2) the juror unanimity instruction was not defective, and (3) as the Attorney General concedes, some firearm enhancements should not have attached to certain counts. We will clarify defendant’s sentence (correcting the enhancement error and the trial court’s erroneous double-counting of 50 years), modify the judgment, and otherwise affirm.
BACKGROUND
Remy M. was an adult male who knew defendant. Remy lived in a household with an adult female, Lynell D., with Lynell’s two children (ages two and five), and with Lynell’s 15-year-old sister, Brandi D. Remy and defendant gambled with dice. The day before the home invasion, Remy won over $1,000 in a dice game, and this angered defendant.
The next night, August 27, 2008, around midnight, Remy was on his balcony. He saw defendant and another man outside his home, asked them if they wanted to smoke marijuana, and went into the house to get a lighter. Defendant and his accomplice entered Remy’s house without invitation. Defendant had a gun. Defendant told his cohort to take Lynell to look for a gun, but when she told the man there was no gun, he threatened to hit her in the head with a bottle if she did not tell him where it was. The man then “rampag[ed]” through Lynell’s room, taking about $2,000 and marijuana. The accomplice then took Lynell to Brandi’s room to look for the gun, started “tearing all the boxes down, ” and woke Brandi up.
Defendant ordered Remy, Lynell and Brandi to remove all of their clothes. The crime partners then tied the victims up with wire. Lynell and Brandi were tied as follows: “We were both laying on our backs. And he starting tying up our feet first, then our arms together. Then he connected the two so both of our arms and feet were up in the air.”
Defendant asked if Brandi was a virgin, asked his cohort “should we fuck?, ” and he and his cohort began kissing and rubbing Brandi and Lynell. Brandi began to cry. Defendant put his fingers in Brandi’s anus three times and put his fingers in Lynell’s vagina. Defendant also put his gun in Lynell’s mouth, saying the gun “will wipe all of us out. Won’t leave no one alive.” When Lynell’s two-year-old child cried, defendant put the gun to the two-year-old’s head and told her to quit screaming or he would shoot her.
Defendant also struck Remy on the head with the gun about eight times, “just like every five minutes.” Defendant asked Remy, “Why you quitting the dice” -- apparently expressing anger that the dice game had ended with Remy ahead.
Defendant said the gun was a “Mac 11” and later said “if I set off one round... this shit will blow up... this whole household.” Defendant said that if the victims called the police, he would return and kill all of them. The crime partners took various items, including money, marijuana and the telephone. As the men left, they told the victims “not to get up for 15 minutes” or the men would come back and kill them.
Lynell managed to untie the others, and the family dressed, fled to a store to call 911, and signaled to a responding patrol car for help.
After the home invasion, defendant called Lynell and threatened to kill the family because they had called the police. He also called Remy and said “I heard you called the police” and “If you want to do it like that, I’m going to [k]ill your whole family.”
Then, regarding a subsequent incident, a probation officer testified that on October 29, 2008, he found defendant in a particular bedroom where drugs and a gun were also found, and defendant told the officer those items were his. Another probation officer testified that he found “a nine-millimeter M-11” inside the wall of a closet of that bedroom. He also found a white substance he thought was drugs and some marijuana in that bedroom.
Sergeant Lisa Bowman, a detective with the sexual assault bureau, testified that she listened to four telephone calls defendant made to his girlfriend from jail. Two calls were made on November 6, 2008, one call was made on November 7, 2008, and one call was made on November 10, 2008. Recordings of the calls were played at trial. In one portion of a call, defendant mentioned the police matching DNA with a T-shirt he left at Remy’s house after the dice game, and in another portion of a call, defendant said he would write a letter telling his girlfriend what to do, because he did not trust the phones. Defendant and his girlfriend later discussed having defendant’s brother Wayne “cash” someone “out” in exchange for dropping the charges, or at least changing “statements, ” which would be good for defendant, but that the “bitch” had said it was not about the money because “somebody had a gun to my baby’s head.”
The parties stipulated that defendant had previously been convicted of a felony; that the white substance found by the probation officer was cocaine base; and that DNA from the T-shirt at the house could have come from defendant, but could not have come from Remy, Lynell or Brandi. The parties further stipulated that peace officers would testify to particular inconsistent statements made by Brandi and Lynell, including that Lynell said defendant’s accomplice put his fingers in her vagina. Moreover, Remy was impeached with convictions for misdemeanor domestic violence and felony possession of marijuana for sale.
In closing argument, the defense emphasized the burden of proof, inconsistencies or implausibilities in the testimony, and argued the victims were untruthful. The defense conceded guilt on the gun and drug charges stemming from the search.
The jury found defendant guilty of residential burglary (Pen. Code, § 459), robbery (three counts pertaining to Remy, Lynell & Brandi) (id., § 211), assault with a firearm (three counts as to Remy, Lynell & the two-year-old) (id., § 245, subd. (a)(2)), forcible sexual penetration (three counts as to Lynell, two counts as to Brandi) (id., § 289, subd. (a)(1)), sexual battery upon a restrained person (Lynell) (id., § 243.4, subd. (a)), false imprisonment by violence or menace (three counts as to Remy, Lynell & Brandi) (id., § 236), attempting to dissuade a witness (Remy) (id., § 136.1, subd. (b)(2)), possession by a felon of a firearm (two counts) (id., § 12021, subd. (a)(1)), and possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)). The jury also found defendant personally used a firearm (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)), and found true certain One Strike allegations (id., § 667.61, subds. (a), (e)(2), (e)(4) & (e)(5)), discussed more fully later in this opinion.
Defendant exercised his right of self-representation at sentencing. The trial court sentenced defendant to prison and characterized the sentence as a determinate term of 101 years 4 months, followed by an indeterminate term of 175 years to life. A two-year sentence on a trailing probation violation matter (case No. 06F10787) was imposed concurrently.
The court granted defendant 327 days of actual credit, but only 49 days of conduct credit. Because defendant was convicted of “violent” felonies, such as robbery, he is subject to a 15 percent limitation on conduct credits, and he is disqualified from the more generous conduct credit formula recently enacted. (See, e.g., Pen. Code, §§ 667.5, subd. (c)(9) [“Any robbery”]; 2933.1, subd. (a), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Defendant filed a timely appeal.
DISCUSSION
I. Sufficiency of the Evidence
Three counts of sexual penetration were based on acts committed against Lynell. Lynell testified that defendant put his finger in her vagina “more than three times, four times.” Defendant contends this was “generic” testimony that cannot sustain the conclusion that three “separate and distinct” acts of sexual penetration occurred. We disagree.
“We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) “Evidence is sufficient to support a conviction only if... it ‘“reasonably inspires confidence”’ [citation], and is ‘credible and of solid value.’” (People v. Raley (1992) 2 Cal.4th 870, 891.)
Penal Code section 289, subdivision (a)(1) provides: “Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” As used in that section, “‘sexual penetration’” is the “act of causing the penetration, however slight, of the genital or anal opening of any person... for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” (Pen. Code, § 289, subd. (k)(1).) “‘Foreign object, substance, instrument, or device’ shall include any part of the body, except a sexual organ.” (Id., subd. (k)(2).)
Lynell testified in relevant part as follows:
“Q And what, if anything, did [defendant] do to your vagina?
“A And he was [putting] his fingers in... my vagina.
“Q And throughout this thing how many times would you estimate he did that?
“A I can’t recall exactly. I know it was more than -– more than three times, four times.
“Q And what would he do kind of in between touching?
“A He’d sit there and ask us if we like that. How does that feel?”
Defendant acknowledges that even generic testimony can outline “a series of specific, albeit undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction.” (People v. Jones (1990) 51 Cal.3d 294, 314, italics omitted.) He also concedes “a ‘penetration, ’ however slight, ‘completes’ the crime.” (People v. Harrison (1989) 48 Cal.3d 321, 329.) The jury was so instructed in this case.
Defendant suggests, however, that because there was evidence that defendant’s accomplice put his finger in Lynell, the jury could have convicted defendant for aiding and abetting the accomplice in that separate and distinct act. Moreover, defendant argues that the prosecution did not establish that the “three or four” touchings described by Lynell were actual penetrations rather than mere “movement.”
However, based on the wording of the verdict forms, discussed below, as well as the prosecutor’s argument, the jury was asked to predicate liability on three counts of sexual penetration against Lynell based on defendant’s direct actions, not based on an aiding theory. And although Lynell was asked to “estimate” how many times this happened, she replied “I know it was... more than three times, four times.” (Emphasis added.) The jury could rationally conclude from this testimony that defendant committed at least three separate penetrations of her vagina with his finger, supporting the three charged counts.
According to defendant, the testimony that he “asked how it felt ‘in between touching’ did not provide sufficient punctuation between the acts because, in context, the term ‘touching’ vaguely embraced everything sexual occurring, not all of which was the crime of penetration by a foreign object.” Defendant posits a possible inference from the testimony, but not the only inference, nor even the most plausible one. The prosecutor’s question about “in between touching” was logically directed at the touching that had just been described, defendant placing his fingers inside Lynell’s vagina. Lynell testified that “in between touching” her, defendant would ask if the victims enjoyed what he was doing.
Reading Lynell’s testimony in the light favorable to the verdicts, we conclude substantial evidence supports three counts of sexual penetration as to Lynell.
II. Juror Unanimity Instruction
Defendant also challenges the unanimity instruction given by the trial court pertaining to the two sexual penetration counts involving Brandi and the three sexual penetration counts involving Lynell. His argument lacks merit.
The verdict forms specified which acts supported which counts. Thus, as to counts six, seven and eight, the verdicts specified acts committed against Lynell as “first penetration, ” “subsequent penetration, ” and “last penetration.” As to counts eleven and twelve, the verdicts specified acts committed against Brandi as “first penetration” and “last penetration.” The prosecutor made parallel elections in closing argument, as follows: “For example, when [counts] six, seven and eight go with one victim, your verdict form will say first time, subsequent time and last time. [¶] For Counts 11 and 12, first time and last time.”
The trial court gave CALCRIM No. 3515, instructing the jury that each count charged a separate crime and “You must consider each count separately and return a separate verdict for each one.”
The trial court also gave CALCRIM No. 3501, instructing the jury that there was evidence of more than one act for some offenses, including the sexual penetration offenses, and the jury “must not find the defendant guilty unless” either “You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense[, ]” or “You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged.”
Defendant’s challenge pertains to the second alternative in CALCRIM No. 3501. He objects to what he calls the “all-or-nothing” instruction, because he contends that, far from ensuring unanimity, it invites non-unanimity. He argues as follows:
“Lynell testified that more than three or four acts occurred directly committed by appellant, and an unspecified number of acts were committed on her by the accomplice. In such a case, some of the jurors could have concluded that appellant committed four or more acts; some could have concluded that he committed three or more acts; and indeed, some could have concluded that he committed none on her, but was an aider and abettor in the more than three or more than four committed by the accomplice. [Citations.] In these circumstances, the ‘all-or-nothing’ formulation does not result in a unanimous finding of the same act for each count. Similarly in the case of Brandi, who also could not remember the number of counts, some jurors may have found the commission of only two acts, while others may have found more than two. Under these circumstances, unanimity is not assured.”
Assuming the facts support the number of possibilities posited by defendant’s contention, we see no defect in the instruction as applied to this case. Both alternatives in the unanimity instruction required that the jurors “all agree” in their findings. If the jurors used the second alternative, they were told they must find as follows: “You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged.” If the jurors found defendant “committed all the acts alleged to have occurred” (emphasis added), the scenarios posited by defendant’s argument, quoted above, would not occur, because his scenarios contemplate that some jurors might find less than all of the acts described by the evidence occurred. (See People v. Baughman (2008) 166 Cal.App.4th 1316, 1320-1321.)
We must presume the jury would correlate the separate-verdict instruction with the unanimity instruction and would follow both instructions as given. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 [jurors are presumed to understand, correlate and follow the instructions they are given]; see also People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648-650 [rejecting a similar challenge to CALCRIM No. 3501].)
As for the offenses against Brandi, defendant posits that some jurors might find “only two acts” occurred, but others might find “more than two.” Even if that happened, that would mean all of the jurors agreed on at least two acts, and because only two counts were charged naming Brandi as a victim, that would not pose a unanimity problem. As for the offenses against Lynell, defendant posits that some jurors might have predicated liability on three acts by defendant, and others might have predicated liability on three acts by the accomplice. But in that case, the jury would not have obeyed the unanimity instruction. The instruction required all jurors to “agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period[.]” Thus, defendant’s scenarios would arise only if the jury disobeyed the instructions, which we must presume did not happen.
Moreover, even if there had been an error regarding the unanimity instruction, the error was harmless. (See People v. Thompson (1995) 36 Cal.App.4th 843, 853.) The defense position at trial was that the victims were lying. But the record indicates the jury resolved this credibility dispute against defendant. Defendant has not established that the jury would have made a more favorable finding if they had received a different instruction. (Ibid.)
III. Firearm Enhancements
Defendant contends some firearm enhancements were wrongly attached to some offenses. The Attorney General concedes this point. We agree with the parties.
Penal Code section 12022.53, subdivision (b), provides for an additional period of imprisonment for the personal use of a firearm in the commission of offenses listed in subdivision (a) of that section. The offenses in counts one, nine, thirteen, fourteen and fifteen were burglary, sexual battery, and false imprisonment by menace. Those offenses are not listed in Penal Code section 12022.53, subdivision (a). Therefore, we agree those enhancements must be stricken, and the sentence modified.
Defendant also originally challenged some firearm enhancements alleged under Penal Code section 12022.5, subdivision (a), but he expressly withdrew those challenges in his reply brief, and therefore we do not address them.
Before describing the effect on the sentence of striking the firearm enhancements for counts one, nine, thirteen, fourteen and fifteen, we first clarify the existing sentence. Both parties state that the trial court imposed a determinate sentence of 101 years and 4 months, and an indeterminate sentence of 175 years to life. That is, indeed, how the trial court characterized the sentence. However, this appears to overstate defendant’s sentence by 50 years.
As imposed by the trial court, the determinate portion of defendant’s sentence is 51 years 4 months, consisting of 17 years 4 months for substantive offenses and 34 years for enhancements.
In addition, for each of the five sexual penetration counts (Pen. Code, § 189, subd. (a)(1)), the trial court imposed an indeterminate term of 25 years to life, for a subtotal of 125 years to life. This was due to application of the “One Strike” law, because the jury found true allegations defendant committed those offenses during a residential burglary, while armed, and against more than one victim. (Pen. Code, § 667.61, subds. (a), (e)(2), (e)(4) & (e)(5); see Couzens & Bigelow, Procedures Unique to Sex Crimes (Barrister Press 2007) Sentencing, § 7.28, pp. 125-126.) Five personal use firearm enhancements under Penal Code section 12022.53, subdivision (b) were appended to those counts, and found true by the jury, resulting in an additional 10 years each, or a subtotal of 50 years. Although the 10-year firearm enhancements appended to the sexual penetration counts are determinate terms, they are attached to the indeterminate terms for those counts. (See Couzens & Bigelow, Cal. Criminal Sentencing (Barrister Press 2010) pp. 100-101, 241.) Thus, defendant’s sentence for the sexual penetration counts, with the attached firearm enhancements, may be collectively characterized as the indeterminate portion of his sentence: 175 years to life, consisting of 125 years to life for the sexual penetration counts plus 50 years for the five firearm enhancements. The indeterminate portion of defendant’s sentence does not begin to run until he has completed the determinate portion. (Pen. Code, § 669.)
The indeterminate abstract accurately reflects the indeterminate portion of the sentence, as described above. The indeterminate abstract also notes that a determinate term of 51 years 4 months was imposed.
The determinate abstract correctly lists various determinate terms for substantive counts and enhancements, totaling 51 years 4 months. But it also contains a line for “total time on attached pages” reflecting 50 years. That line is normally used when the number of determinate termswill not fit on one page. However, in this case, it was apparently used to reference the 50 yearsimposed for the firearm enhancements appended to the sexual penetration counts, which are more correctly characterized as part of the indeterminate portion of the sentence.
Because the same 50 years for the five firearm enhancements attached to the sexual penetration counts appeared on both abstracts, the trial court and the parties appear to have characterized the determinate portion of the sentence as 101 years 4 months (51 years 4 months, plus the 50 years “on attached pages”), and they appear to have characterized the indeterminate portion of the sentence as 175 years to life (125 years to life, plus 50 years for the five firearm enhancements appended to the sexual penetration counts). The 50 years for the firearm enhancements attached to the sexual penetration counts were mistakenly counted twice.
With this clarification in mind, we can proceed to explain the effect of striking the firearm enhancements that were improperly attached to counts one, nine, thirteen, fourteen and fifteen. The sentence for count one was stayed (Pen. Code, § 654), and the enhancement appended thereto was also stayed; that enhancement must now be stricken. The determinate sentences for counts nine, thirteen, fourteen and fifteen were imposed consecutively to count two (robbery), and therefore were subject to the one-third midterm limitation of Penal Code section 1170.1, subdivision (a). As we have held, and the trial court correctly implemented at sentencing, the consecutive one-third midterm for a 10-year enhancement under Penal Code section 12022.53, subdivision (b) is 3 years 4 months. (People v. Moody (2002) 96 Cal.App.4th 987, 992-994.) Therefore, since four such unstayed enhancements must be stricken, that reduces the unstayed determinate sentence by 13 years and 4 months (3 years 4 months x 4 = 13 years 4 months). Accordingly, instead of 51 years 4 months, the determinate portion of the sentence, after striking the firearm enhancements as described, is modified to 38 years (51 years 4 months less 13 years 4 months = 38 years).
DISPOSITION
The firearm enhancements attached to counts one, nine, thirteen, fourteen and fifteen are stricken, and the judgment is modified to provide that the determinate portion of defendant’s sentence is 38 years. (Pen. Code, § 1260.) The judgment is affirmed as modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new set of abstracts that accurately and clearly reflect the determinate and indeterminate portions of defendant’s sentences, and the relationships between those abstracts.
We concur: RAYE, P. J., BLEASE, J.