Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF015515, W. Charles Morgan, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, and Benjamin B. Kington for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Collette Cavalier, Ronald Jakob, and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Patrick Lynn Glass appeals his conviction for multiple sexual offenses against his 11-year-old stepdaughter. He contends that a redacted confession should not have been admitted into evidence and that the sentences on two counts should have been stayed pursuant to Penal Code section 654. We will affirm the judgment.
All statutory citations refer to the Penal Code.
PROCEDURAL HISTORY
Defendant was charged with the following offenses against Jane Doe No. 1: Lewd and lascivious acts by force on a child under the age of 14 (§ 288, subd. (b)(1); counts 1, 2 & 3); lewd and lascivious acts on a child under the age of 16 by a person more than 10 years older than the child (§ 288, subd. (c); counts 4 & 5). The jury acquitted him on counts 1, 3, 4 and 5 and deadlocked as to count 2. The court dismissed count 2.
Defendant was charged with the following offenses as to Jane Doe No. 2: Rape of a child under the age of 14 (§ 269, subd. (a)(1); count 6); oral copulation by force on a child under the age of 14 (§ 269, subd. (a)(4); count 7); lewd and lascivious acts by force on a child under the age of 14 (§ 288, subd. (b)(1); counts 8-13). Defendant was convicted on all counts pertaining to Jane Doe No. 2.
The court sentenced defendant to consecutive terms of 15 years to life on counts 6 and 7 and to full consecutive middle terms of six years on counts 8 through 13. Defendant filed a timely notice of appeal.
FACTS
Defendant, aged 26 at the time of his arrest, was the stepfather of Jane Doe No. 1 (Jane Doe 1), born in 1991, and Jane Doe No. 2 (Jane Doe 2), born in 1994. Defendant moved in with the girls and their mother in 2002 and married the girls’ mother in 2003. The girls’ mother worked as a manager of a fast-food restaurant. She sometimes worked nights, and defendant would care for the girls while their mother was at work.
On February 27, 2006, Jane Doe 1 had a seizure or passed out while at school. While being transported to the hospital, she told a paramedic that defendant had raped her and her younger sister. She elaborated on her accusation to a police officer who interviewed her in the emergency room.
At trial, Jane Doe 1 testified that defendant began molesting her in 2005, when she was in the eighth grade. In the first incident, defendant had attempted to force his penis into her mouth but was unable to do so because she kept her mouth closed. On another occasion, defendant inserted his fingers into her vagina. She told him to stop but he would not. On a third occasion, defendant sodomized her. On a fourth occasion, defendant attempted to put his penis into her vagina but she thwarted him by tensing up. In the final incident, which occurred a month or two before she was taken to the hospital, defendant orally copulated her.
Jane Doe 2 testified that defendant molested her repeatedly for about a year and a half, beginning toward the end of her fourth grade year, when she was 10. He began by kissing her on the mouth. About a week later, he kissed her neck and tried to remove her pants and top. She resisted. A week or two later, he removed her top despite her resistance and kissed her chest and breasts. About two weeks later, he did the same thing and also removed her pants and licked her vagina. A few days after that, he kissed her, removed her clothes, kissed her vagina and inserted his penis into her vagina. It hurt and she tried to push him away. A few days later, the same thing happened.
Over the course of a year and a half, defendant put his penis into her vagina about 50 times. When she was 10, he also sodomized her once. He stopped molesting her when she was 11. She was afraid of defendant.
A police detective interviewed Jane Doe 2 on February 27, 2006, the same day her sister disclosed that defendant had molested her. Jane Doe 2 described defendant’s actions in detail.
LEGAL ANALYSIS
THE REDACTED CONFESSION WAS ADMISSIBLE
Background
After Jane Doe 1 told authorities that defendant had raped her, Detective Cordova asked defendant to come to the sheriff’s department. Defendant agreed, and drove to the department in his own vehicle. Once inside the interview room, Cordova told him that he was not under arrest and that he was free to leave at any time. Defendant voluntarily answered Cordova’s questions, which quickly revealed that defendant had had inappropriate contact with both stepdaughters, including touching Jane Doe 1’s breasts and vaginal areas and lying in bed with Jane Doe 2 while she was naked. Cordova told defendant that he did not believe that that was all that had happened and asked if he was willing to take a polygraph test. Defendant agreed.
After a break, Cordova informed defendant that he was taking him into custody, that he would spend the night in jail and then have the polygraph test in the morning. Without reading defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), Cordova continued to question defendant. During the ensuing questioning, Cordova exhorted defendant to tell the truth. He told defendant that he was going to go to jail, that he was going to be punished, but that “part of the system” was to get him help with his problems. Defendant gradually admitted to more and more serious conduct with both girls, and particularly with Jane Doe 2. Cordova repeatedly exhorted him to “come clean” and told him that he would personally see to it that he got “help” and that his family would get help as well.
The first interview took place on February 27, 2006. On March 1, 2006, Cordova interviewed defendant again. He read defendant his rights, and defendant said that he wanted to talk to Cordova. Cordova reviewed what defendant had told him during the prior interview and had him confirm a number of statements.
Defendant moved to suppress both statements, arguing that the first was involuntary and in violation of Miranda, and that the second was tainted by the first involuntary confession. He also contended that Cordova’s failure to readhim his rights was a deliberate attempt to circumvent Miranda and that the second confession was therefore inadmissible pursuant to Missouri v. Seibert (2004) 542 U.S. 600.
The trial court found that Cordova’s failure to read defendant his rights was not deliberate. It also rejected defendant’s argument that the first confession was involuntary because Cordova’s offers of help overcame defendant’s will and caused him to confess. Nevertheless, it excluded the entire first interview but permitted use of the second interview. It ordered the attorneys to cooperate in redacting the tape and transcript of the second interview to excise references to the first interview. The redacted second confession was admitted into evidence at trial.
The First Confession Was Not Coerced.
A statement which is obtained in violation of Miranda is itself not admissible. However, as long as the first statement was neither obtained through a deliberate violation of Miranda nor through coercive means, a subsequent, Mirandized statement is generally admissible if it is itself voluntary. (Oregon v. Elstad (1985) 470 U.S. 298, 309, 318; see also Missouri v. Seibert, supra, 542 U.S. at pp. 619-622 (conc. opn. of Kennedy, J.).) If the first statement was actually the product of unconstitutional coercion, a second statement may be inadmissible, even if Miranda warnings were given, if under the totality of the circumstances, the court concludes that the second confession has been obtained by exploitation of the original illegality rather than in a manner which dissipates the taint. (People v. McWhorter (2009) 47 Cal.4th 318, 360.) Here, defendant contends that his first statement was coerced and that the second statement was obtained by exploiting the first.
The determination whether a statement is coerced or voluntary does not turn on any one fact, no matter how apparently significant, but rather on the totality of the circumstances. (People v. Neal (2003) 31 Cal.4th 63, 79.) The essential question with respect to voluntariness is whether the defendant did not freely choose to confess because influences were brought to bear which overpowered his will to resist. (People v. McWhorter, supra, 47 Cal.4th at p. 347.) Where the facts are undisputed, we review a trial court’s determination that a confession was voluntary independently, “‘in light of the record in its entirety, including “all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter]”....’ [Citations.]” (People v. Neal, supra, at p. 80; see also People v. McWhorter, supra, at pp. 346-347.)
“In general, ‘“any promise made by an officer or person in authority, express or implied, of leniency or advantage to the accused, if it is a motivating cause of the confession, is sufficient to invalidate the confession and to make it involuntary and inadmissible as a matter of law.”’ [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 339.) An investigating officer is not precluded from discussing any advantage or other consequence which will naturally accrue if the accused speaks truthfully about the crime. Rather, the courts prohibit “only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (Ibid.)
Here, defendant contends that the first confession was involuntary because Cordova’s offers to “help” him, interspersed with exhortations to tell the truth, caused his will to be overborne. He notes that as Cordova continued to make offers of help and to exhort him to tell the truth, he gradually “changed his story to what Cordova wanted to hear.” However, we agree with the trial court that the totality of the circumstances makes it clear that Cordova’s offers of help were not an offer of leniency or some other benefit in return for a confession, nor were they of such a nature that defendant was effectively coerced into making his confession.
In the first few minutes of the interview, defendant went from denying that he had had any sexual contact with either girl to admitting, incrementally, that he sometimes “stripped them down and put them in the shower” when they refused to take a shower, that he dried them off after they had showered, and that it was “possible” that he had touched Jane Doe 1’s breast when putting her into the shower. He went on, also within the first few minutes, to admit that he gave both girls massages and that it was “possible” that he had “brushed” Jane Doe 1’s breasts “two or three times at the most” and her vaginal area “maybe once or twice” while massaging her. He admitted that the younger girl, Jane Doe 2, had been naked in bed with him about a month and a half earlier. Cordova told defendant that he did not believe him, that his behavior and demeanor suggested that he was not telling the truth.
After a break, Cordova resumed the interview by telling defendant that he did not believe him because of the way he was acting. He went on to say that a weight would be lifted from defendant’s shoulders if he told the truth and that he would feel a lot better if he confessed, because “you’re going to jail... anyway.” After some additional equivocating from defendant, Cordova again exhorted defendant to tell the full truth. He said, “Part of the system here is to help you with your problems also. There’s punishment, but there’s also help.... When you’re done with this, if... the system doesn’t help you, you are... going to do it again. Someday.... Part of the system here is to try to get you help, too. You’ll be going to counseling and everything else, too.” Later, Cordova said “I know it’s a hard thing to do but you need to come clean dude. It’s going to help you too, it will help you mentally. Get this... weight off your shoulders.... [¶]... [¶] And, what you’ve done to them, okay? You need help? Well we can get you that help. You need help[, ] bro.” Cordova made a number of similar statements, saying that “the system” would get defendant the help he needed, and would also provide help to defendant’s family, to help them recover from what he had done.
As defendant acknowledges, these statements could not have been construed as an offer of leniency or of some unspecified benefit that might have induced him to confess against his will or which would have caused him to make a false confession. Defendant contends, however, that Cordova crossed the line when he made offers to help defendant personally: “We’re both former Marines, don’t bullshit me dude, c’mon. Ya know? If I can help another Marine dude to get some help or some shit like that, I’ll do that[, ] too. And, “... I’m a good guy. I’ll help you if you need help. I can guarantee you that.” Defendant says, “These offers were personal, and implied [that] [defendant] would receive benefits that were special and the result of action personally taken by Cordova if [defendant] confessed to the crime: ‘But it has to come, it’s gotta start with you. You have to be man enough to start the ball rolling.’”
Defendant takes Cordova’s comments out of the context in which they were made. In the first instance, Cordova went on to say, within the same exhortation, “You need help dude, I’ll get you the help, the system will get you the help.... You know, we can get the ball rolling[, ] we can get everything started.” (Italics added.) Although Cordova said that he would get defendant the help he needed, in context it is clear that he was referring to the psychological help he had previous said was part of the system.
In the second instance, defendant quotes a brief portion of a very long statement which went for nearly two full pages, single spaced, in the transcript. In that lengthy statement, Cordova’s point was, again, that it would benefit defendant psychologically to admit what he had done. He also said that it would be better for defendant’s family because they too could get help and could begin to heal. They could also take some pride in the fact that defendant was honest: “You are the head of your family, and I’d much rather have my sons or my daughters say, ‘you know, my father, he’s an honest man. He had some problems one time, but he’s an honest man. He got it taken care of and we got our shit back together, ’ boom. Understand what I’m sayin’?” And, in addition to saying he would help defendant, “I can guarantee you that, ” Cordova referred again to defendant taking his punishment and getting some help.
In context, despite Cordova’s personalizing of the offer to get defendant help, there is no basis for inferring that he meant anything more than the psychological help he had previously described as being part of the system, in connection with the punishment which, as Cordova made clear, would also result. And, there is simply no basis for concluding that these vague offers of “help” were sufficient to cause defendant to confess against his will.
Defendant contends, however, that Cordova conditioned his offers of help on defendant changing his story. He says that Cordova yelled and swore at him, and that he gradually changed his story “to what Cordova wanted to hear.” This, he contends, means that his will was overborne and the confession was coerced. We disagree with this interpretation of the record, and we reject it. Defendant’s ever-evolving description of his actions with his stepdaughters was not an attempt to tell Cordova what he wanted to hear in order to get some proffered benefit. On the contrary, defendant began admitting to seriously inappropriate conduct before Cordova made any offer of “help, ” although he continually minimized his actions and denied any sexual intent. And, throughout the interview, he continued to deny the acts Cordova endeavored to get him to admit, always admitting, instead, to something less serious than what Cordova was seeking. He never did admit to having sexual intercourse with his stepdaughters or orally copulating them and continually denied having any sexual intent in his contact with them. Accordingly, the record simply does not support the conclusion that defendant’s will was overborne by Cordova’s vague offers of “help.”
The Evidence Supports the Trial Court’s Finding that Cordova Did Not Engage in a Deliberate “Two-Step” Interrogation Procedure.
Defendant also contends that his second confession is inadmissible even if the first confession was not involuntary, because Cordova engaged in a deliberate process of extracting the first confession without reading him his rights and then having him “confirm” his first confession after Mirandizing him. In Missouri v. Seibert, supra, 542 U.S. 600 (Seibert), a plurality of the United States Supreme Court condemned that practice and held that the second confession is admissible only if, under the totality of the circumstances, the Miranda warning can be deemed truly effective in communicating to the suspect that he or she has “a genuine choice” about continuing to talk. (Id. at pp. 615-616 (plur. opn. of Souter, J.); see also id. at pp. 621-622 (conc. opn. of Kennedy, J.).) Defendant’s argument fails. At the hearing on defendant’s motion to suppress the confessions, Cordova testified that during the first interview, he simply forgot to read defendant his rights. He testified that it was his policy not to Mirandize an interviewee unless the person was in custody, and that with all that was going on that day, he simply forgot to read defendant his rights when he resumed questioning after informing defendant that he was going to be taken into custody. The trial court found Cordova’s testimony credible, and found that he did not intentionally defer the reading of the Miranda warning until after defendant had confessed. We review a trial court’s factual findings pertaining to the admissibility of a confession or admission under the deferential substantial evidence standard. (People v. Williams (1997) 16 Cal.4th 635, 659-660.) The testimony of a witness found by the trial court to be credible is, of course, substantial evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Accordingly, we accept the trial court’s finding that Cordova’s failure to give the Miranda warning when he decided to take defendant into custody was not deliberate.
Although the plurality opinion would have applied to both intentional and unintentional two-stage interrogations, the concurring opinion of Justice Kennedy, which is generally viewed to be the actual holding of the case (see People v. Camino (2010) 188 Cal.App.4th 1359, 1369-1370 & fn. 5), limits Seibert’s rule to deliberate uses of the two-stage interrogation technique “used in a calculated way to undermine the Miranda warning.” (Seibert, supra, 542 U.S.at pp. 621-622 (conc. opn. of Kennedy, J.).) Unless otherwise indicated, all further citations to Seibert will be to the concurring opinion of Justice Kennedy.
The Second Statement Was Voluntary.
Even though the initial statement was not coerced and was not obtained by the deliberate violation of Miranda, however, that does not end the discussion as to whether the second statement was admissible. A subsequent statement which is obtained after an unwarned but otherwise uncoerced statement is admissible only if, under the totality of the circumstances, second statement was “knowingly and voluntarily made.” (Oregon v. Elstad, supra, 470 U.S. at p. 309 (Elstad); see also Seibert, supra, 542 U.S. at pp. 621-622 [Elstad principles apply unless deliberate two-step strategy was employed].) There is no rigid rule for determining the voluntariness of a subsequent statement after a prior unwarned statement. (Elstad, at p. 318.) Rather, “the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.” (Ibid.)
Here, although we must accept the trial court’s determination that Cordova did not intentionally engage in a “question first, warn second” procedure in the first interview, it is indisputable that Cordova deliberately attempted to remedy his failure to warn defendant pursuant to Miranda in exactly the manner that was condemned in Seibert. That is, he initiated the second interview by reading defendant the standard Miranda warning, without informing defendant that his prior statement was probably inadmissible, and then took defendant through the substance of his prior statements and had him confirm that he had made those statements. (See Seibert, supra, 542 U.S.at pp. 604-605 (plur. opn. of Souter, J.).) In terms of the totality of the circumstances, too, this case more closely resembles Seibert than Elstad. In Elstad, the initial unwarned statement did not result from systematic questioning in a police station. Rather, the police learned that Elstad, age 18, was implicated in a residential burglary. Two officers went to his home with an arrest warrant. One officer remained with Elstad in the living room; the other went to the kitchen to inform his mother that they had a warrant for her son’s arrest in connection with the burglary of a neighbor. The officer in the living room asked Elstad if he knew why they were there. Elstad said he did not. The officer then asked if he knew anyone named Gross, the burglary victims. Elstad said that he did, and that he had heard that there was a robbery at the Gross house. At that point, the officer said that he “felt” that Elstad was involved. Elstad replied, “Yes, I was there.” At the police station, Elstad was read the Miranda warnings and agreed to talk, giving a full description of his involvement in the burglary. (Elstad, supra, 470 U.S. at pp. 300-302.) Here, in contrast, although defendant went voluntarily to the police station and spoke voluntarily to Cordova, he was nevertheless subjected to an interrogation which was “systematic, exhaustive, and managed with psychological skill.” (Seibert, at p. 616 (plur. opn. of Souter, J.).) Cordova went to great pains to elicit all the incriminating information that he could, including, as we have discussed above, repeatedly exhorting defendant to tell the truth for his own psychological well-being and that of his family. He succeeded, by that means, in eliciting a series of ever-greater admissions of wrongdoing.
Had the initial failure to warn defendant been deliberate, the second statement would not have been admissible unless Cordova had undertaken “curative measures” sufficient to ensure that defendant understood the import and effect of the Miranda warning and waiver. (Seibert, supra, 542 U.S. at p. 622.) To be effective, such measures must convey to the suspect that he has a genuine choice whether to follow up on his or her earlier admissions. (Id. at pp. 615-617 (plur. opn. of Souter, J.).) Under some circumstances, the change in the setting of the second interview—from a private residence to a police station (Elstad, supra, 470 U.S. at p. 301)—or a delay of several hours or days, or a change in personnel conducting the interview may suffice (Seibert, at pp. 621-622). An additional warning that explains the likely inadmissibility of the prior statement would suffice in other circumstances. (Ibid.) Such measures are not mandated where the original Miranda violation was not deliberate (Elstad, at pp. 317-318), however, and Elstad makes it clear that as long as a Miranda warning is given before the second statement is taken, the only issue is whether the statement was voluntary. Voluntariness does not require that the suspect be informed that his prior statement cannot be used against him. (Elstad, at p. 316.) Nor does it require that the suspect understood the full consequences of his or her decision to speak to law enforcement. (Id. at pp. 316-317.) And, the fact that the suspect chose to speak after being informed of his or her rights is highly probative. (Id. at p. 318.) Here, there is simply nothing in the record which indicates that defendant did not voluntarily agree to speak to Cordova in the second interview after having been given the Miranda warning, and we therefore conclude that he did so voluntarily.
Defendant relies on People v. McWhorter, supra, 47 Cal.4th 318, which holds that the record must affirmatively show that the taint of the first confession was sufficiently attenuated in order to permit admission of the second confession and provides a number of factors which are relevant to that analysis. McWhorter is inapposite, however, because in that case, the defendant contended that his second inculpatory statement was inadmissible because it was the product of his first statement, a portion of which was obtained by coercion. (Id. at pp. 347-348, 359.)
Moreover, even if the redacted statement were not admissible, its admission was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The redacted statement contained admissions that defendant had, or “might” have, touched both girls in what jurors could have deemed to be a lewd and lascivious manner, but defendant denied that he had engaged in sexual intercourse or oral copulation with either one. Despite his admission that he “might” have touched Jane Doe 1’s pubic area, the jury acquitted him on multiple counts of lewd and lascivious acts by force or fear and on multiple counts of lesser included offenses of nonforcible lewd and lascivious acts, as well as lesser included offenses of simple battery. And, the jury convicted him of offenses against Jane Doe 2 which were far more serious than any act he admitted he “might” have or had committed with Jane Doe 2. Clearly, the jury relied upon its assessment of the girls’ credibility in reaching its verdicts, and relied very little on defendant’s vague admissions.
The Second Interview Was Admissible As Redacted.
Finally, defendant contends that admission of the second interview was error because it was not redacted effectively to separate it from the first, inadmissible interview.
Defendant actually raises two separate objections to the use of the redacted interview. He contends first that the second interview was inadmissible because it was “inextricably linked” to the first interview which was suppressed. This contention is without merit. Defendant acknowledges that “a subsequent interview following an initial interview that only violates Miranda rather than the Fifth Amendment [i.e., one that is not coerced] is admissible unless the interview sequence was deliberately intended to circumvent Miranda.” (See Seibert, supra, 542 U.S. at pp. 618-622 (conc. opn. of Kennedy, J.).) He then states, “But trial counsel objected to the second interview, ‘regardless of the finding of intent[, ]’ because it was ‘inextricably linked’ to the first [interview].” He does not, however, cite any authority that in the absence of a finding that the interviewer deliberately engaged in a two-step interview process, the subsequent interview is inadmissible simply because the defense objected to it, or because it was “inextricably linked” to the first interview. As we have discussed above, this is not the law. Rather, as long as any admission or confession in the first interview was neither coerced nor obtained in deliberate violation of Miranda, a subsequent voluntary admission or confession following Miranda advisements is admissible. (Seibert, at pp. 620-621.) Consequently, defendant’s second interview was admissible, with or without redaction, despite being “linked” to the first interview.
Defendant then asserts that the manner in which the second interview was redacted violated his right to due process because it changed the meaning of his statements during that interview. In the second interview, Cordova merely repeated various statements defendant made and asked him to confirm that he had made the statements. After redaction, however, the transcript of the second interview made it appear that rather than confirming that he had made the statements, defendant was admitting to the truth of the content of the statements. He contends that these alterations in the meaning of his statements during the second interview were prejudicial.
Defendant’s current objections to the statement as redacted have not been preserved for review on appeal. During the hearing on the proposed redaction of the second interview, defense counsel objected to two specific redactions and asked that specified portions of the statement as redacted be removed. The court acquiesced in both instances. Defense counsel made no other objections. Objections to evidence must be brought to the attention of the trial court in order to preserve the right to raise the issue on appeal. (People v. Williams (1999) 20 Cal.4th 119, 128.) Thus, no objections other than the ones raised in the trial court can be addressed on appeal. And, it is axiomatic that a party is not aggrieved by favorable rulings on objections which were made. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.)
THE SENTENCE DOES NOT VIOLATE SECTION 654
Finally, defendant contends that because the crimes alleged in counts 6 and 7 could also have formed the basis for the crimes alleged in counts 9 and 10, section 654 precluded imposition of sentence on both pairs of counts.
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.” In count 6, defendant was accused of the commission of rape on Jane Doe 2 “on or about 2003, through and including 2004.” In count 7, he was accused of oral copulation by force and duress on Jane Doe 2 within the same time frame. In counts 9 and 10, he was accused of lewd and lascivious acts on Jane Doe 2 by force or duress in or about 2004. Defendant contends that because rape and oral copulation can form the basis for a conviction for lewd and lascivious acts on a child, and because the jury was not instructed that it had to find a different factual basis for each count, the jury could have found him guilty on counts 9 and 10 based on the same conduct which formed the basis for the convictions on counts 6 and 7, because all four offenses were alleged to have been committed during the same broad time frame.
The applicability of section 654 was not raised during defendant’s sentencing. In the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implied finding that each count constituted a separate offense. (People v. Tarris (2009) 180 Cal.App.4th 612, 626 [Fourth Dist., Div. Two].) The trial court’s findings, express or implied, must be upheld on appeal if there is any substantial evidence to support them. (Ibid.) We view the evidence in the light most favorable to the trial court’s findings. (Id. at p. 627.)
In People v. Tarris, supra, 180 Cal.App.4th 612, the issue was whether substantial evidence supported the trial court’s finding that two crimes were committed with a single intent and thus subject to section 654. (Tarris, at p. 626.) The same analysis applies with respect to an implied finding that two or more counts are not based on the same criminal act.
Jane Doe 2 testified that defendant committed multiple acts of sexual intercourse by force over a period of about a year and a half, beginning in 2004, when she was nine or 10. She also testified that he committed multiple acts of oral copulation by force as well as lewd acts such as kissing her breasts following the forcible removal of her clothing, during that same period. Since, as defendant recognizes, rape or oral copulation of a child under 14 also constitutes a lewd act (see People v. Siko (1988) 45 Cal.3d 820, 823), the jury had multiple acts upon which to base the convictions in counts 6, 7, 9 and 10 and had no need to rely upon the same act more than once. Consequently, substantial evidence supports the court’s implied finding that each of those counts represented a separate crime.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., King J.