Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05HF0055 Gary S. Paer, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Hung Van Phan appeals from a judgment that sentenced him to 17 years, 8 months in state prison, after a jury found him guilty of 17 sex offenses against 2 minors. Phan argues the evidence was insufficient to support one count, it was error to impose consecutive sentences on 5 counts, and he is entitled to an additional day of presentence credit. We disagree except as to the presentence credit, modify the judgment accordingly, and affirm as modified.
FACTS
Phan met 14-year-old M. through a website in October 2002. Calling himself Tony, he told her he was 16, though he was 28 at the time. A month later, Phan picked up M. at school in Irvine and took her to his home in Westminster. They engaged in sexual intercourse that day and numerous times in the ensuing two weeks, until M. finally put a stop to it. Phan told M. he still wanted to see her, and over the next two years M. orally copulated him between 20 and 40 times. The relationship included many fights in which Phan acted aggressively and hit M., once “so hard that I flipped off the bed” and another time “hitting the wall and the blinds falling down on me.”
When M. tried to end the relationship, Phan told her “I better watch my ass when I’m at school... when somebody screws him over, he screws them over 10 times worse.” Phan said he and his friends had “jumped a little kid, hospitalized him,” had smashed in the windows of a car with the driver inside, and “don’t think I don’t know people in your area... in your school.”
On the evening of January 1, 2005, M. met Phan, and they drove to his house. While parked outside and again inside, Phan pressured her for oral sex, saying he had lost a lot of money gambling, was going to a casino, and needed oral sex to bring good luck. To change the subject, M. said she might be able to get some money from her father so Phan would not have to gamble. Phan asked if she could get her father’s ATM card. When M. said she could, Phan replied that was just to avoid oral sex, and “he started calling me a whore, a slut... [and] he just continued to threaten me. He told me that I better pack my bags and leave this town. That’s the only way I’m going to be safe.”
Phan drove M. back to Irvine and parked near her family’s residence. He continued to demand oral sex, unzipped his pants, and exposed his penis. M. put her hand on his penis, then said she couldn’t go on and removed her hand. Phan “started yelling at me again... [¶] started threatening me again. And when I looked over, he had a knife in his hand, and the blade was pointed towards me.” He said “I’m going to kill you.” M. grabbed the knife and stabbed Phan in the stomach. He withdrew the knife and they struggled over it, falling out of the car. M. got the knife. Phan returned to the car. M. was worried he would go to her house, so she stepped in front of the car and, when it began to move, jumped on the hood. Phan drove off, turning left and right onto different streets until M. was thrown to the ground. She went home, told her sister what had happened, and the sister called the police.
Police officers interviewed Phan at a hospital where he sought treatment for the knife wound. Eventually, he admitted he had sexual intercourse with M., she orally copulated him 20 to 40 times over the past 2 years, he asked for oral sex to bring him luck at the casino, and he was 28 when he first met her.
Phan’s conduct with M. resulted in charges for unlawful sexual intercourse (Pen. Code, § 261.5, subd. (d)) (counts 1, 2); lewd acts upon a child (§ 288, subd. (c)(1)) (counts 3, 4); oral copulation of a minor (§ 288a, subd. (b)(1)) (counts 5, 6); attempted forcible oral copulation (§§ 288a, subd. (c)(2), 664) (count 7); criminal threats (§ 44) (count 8); and aggravated assault (§ 245, subd. (a)(1)) (count 9). He was convicted on all save for criminal threats and aggravated assault. On the attempted oral copulation charge (count 7), the jury found not true an alleged knife enhancement. (§§ 12022, subd. (b)(1), 12022.3, subd. (a).)
All subsequent statutory references are to the Penal Code.
Phan also made the acquaintance of Jennifer through a website when she was 15. Phan told her he was 18. They met 4 times between early October and early November 2004. The first time, Phan picked up Jennifer at her school and they set out to see a movie at a mall. Instead, they parked in a lot and Phan put Jennifer’s hand in his crotch. When she removed it, he pulled out his penis as asked for oral sex. Jennifer demurred but after Phan persisted, she relented and orally copulated him. Phan also placed his finger in her vagina.
A week later, Phan called Jennifer and said it was his birthday. He met her at her house and they drove around for a time, then parked. Phan asked for oral sex for his birthday. After initially refusing, Jennifer complied.
The week after that, Phan picked up Jennifer from school again. This time, they went to his house. He asked her if she wanted to have sex, she said no, but “he just ... kept asking” and pressured her, and they ended up having sexual intercourse. After a time, Jennifer orally copulated Phan, and they had sex again. Phan also put his fingers in Jennifer’s vagina.
They met for the last time a few weeks later, in early November 2004. Jennifer wanted to go to La Crescenta to visit friends, but Phan took her to his house. On the way, he stopped at a liquor store to buy rum. Jennifer tried a sip and did not like it, but Phan kept asking her to take more. When she refused, he grabbed her by the back of the neck and poured the liquor down her throat. Jennifer began to feel its effects in a few minutes. The next thing she remembered was waking up cold in Phan’s bedroom, naked from the waist up. Phan gave Jennifer a sweatshirt and drove her home. Jennifer collapsed at her front door, smelling of alcohol. Her mother helped her up and to her room, where Jennifer kept mumbling “don’t touch me” and “don’t hit me.” The police were called (presumably by Jennifer’s mother, although this is not clear from the record). When interviewed by a police officer, Jennifer recalled that when she was drunk, Phan had pulled out “a pointed object, silver in color.” She thought it was a knife but could not say that with certainty.
Phan was still recovering in the hospital when a police officer spoke with him about Jennifer. He admitted to the sex acts set out above during his first three meetings with Jennifer. Speaking about the fourth meeting, Phan said he and Jennifer were drinking at his house, she orally copulated him, he placed his fingers in her vagina, and they had sexual intercourse. Phan recalled Jennifer was drunk at the time, unable to stand up, move, or later, dress herself, so he gave her a sweatshirt and took her home.
Phan was charged with a lewd act upon a child (§ 288, subd. (c)(1)) (count 10); oral copulation of a minor (§ 288a, subd. (b)(2)) (counts 11, 13, 16); digital penetration of a minor (§ 289, subd. (i)) (counts 12, 17); unlawful sexual intercourse (§ 261.5, subd (d)) (counts 14, 15); rape by intoxication (§ 261, subd. (a)(3)) (count 18); digital penetration by intoxication (§ 289, subd. (e)) (count 19); oral copulation by intoxication (§ 288a, subd. (i)) (count 20); and criminal threats (§ 44) (count 21). The jury returned a guilty verdict on all counts except the last two, oral copulation by intoxication and criminal threats.
The sentence of 17 years, 8 months was calculated as follows. The court sentenced Phan to 6 years for rape by intoxication (count 18). On the convictions for his conduct with M., he received consecutive one-year terms for each count of unlawful sexual intercourse (1, 2) and for attempted forcible oral copulation (7). He was given consecutive 8-month terms for each count of lewd acts upon a child (3, 4) and each count of oral copulation of a minor (5, 6). On the convictions for offenses with Jennifer, Phan was sentenced to consecutive one-year terms for each count of unlawful sexual intercourse (14, 15). The sentence was consecutive 8 months terms for each count of lewd acts upon a child (10), oral copulation of a minor (11, 13, 16), and digital penetration of a minor (12, 17). On digital penetration by intoxication, the sentence was a concurrent 6-year term (19).
I
Phan argues there was no evidence of the force or fear necessary to support a conviction for attempted oral copulation with M. But there was.
The crime of oral copulation is committed 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....” (§ 288a, subd. (c)(2).) Duress is shown when there is “‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to... perform an act which otherwise would not have been performed....’ [Citations.]” (People v. Cochran (2002) 103 Cal.App.4th 8, 13.) An attempt is made out by showing “a specific intent to commit the target crime and [] a direct, ineffectual act done toward its commission. [Citation.]” (People v. Swain (1996) 12 Cal.4th 593, 604-605.)
This count (7) was based on the occasion when Phan demanded oral sex to bring him luck at the casino (January 1, 2005). M. declined initially. He responded by calling her names and “told me I better pack my bags and leave this town. That was the only way I’m going to be safe.” Later in the evening, M. placed her hand on his penis, then withdrew it, whereupon Phan “started yelling at me again [and] [¶] started threatening me again” before pulling out a knife. This threat came against a background of a relationship in which Phan hit M. hard enough to throw her off a bed into a wall, warned her he had beaten up one person and smashed in the car windows of another, and she better watch out at school because “when somebody screws him over, he screws them over 10 times worse.” So M. had every reason to fear Phan when he asked for oral sex on the evening of January 1, 2005. There is ample evidence to support the conviction for attempted oral copulation.
Phan also contends there was no attempt because after M. removed her hand, he did nothing more to urge her to perform oral sex. He points out the knife incident cannot be considered after the jury’s rejection of the knife enhancement and the criminal threat count. But the argument overlooks other evidence. M. testified Phan yelled at her and threatened her after she removed her hand and before she saw he had a knife. Those threats are sufficient to show a direct, ineffective act taken toward commission of the crime.
In addition, the evidence shows an attempt to commit oral copulation by duress. Against the background of Phan’s prior violence toward M., and his tales of violent reprisals against others, Phan’s warning to leave town and his threats when M. removed her hand from his penis were implied threats of violence or retribution. That makes out duress.
Phan argues duress was never raised below because the People failed to mention it in closing argument, instead stressing force or fear. But what was said in closing is not determinative.
The charge against Phan included duress, and the jury was so instructed, placing duress in issue and before the jury when it returned a guilty verdict. The jury was told the crime of oral copulation required proof, among other things, that “defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone.” It was further instructed “duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that she would not otherwise do or submit to.... [¶] Retribution is a form of payback or revenge.” So the evidence is sufficient to support the conviction for attempted oral copulation by fear or by duress.
II
Phan asserts it was an abuse of discretion to impose consecutive terms on several counts because they arose from the same incident. We disagree.
At issue are the crimes committed during Phan’s first meeting with Jennifer (counts 10, 11, and 12) and their third meeting (counts 14, 15, 16, and 17). Phan asserts each was a single incident during which all of the crimes were committed with the same objective (sexual relations with Jennifer) and reflected a “single period of aberrant behavior” that indicated concurrent sentences. (Cal. Rules of Court, rule 4.425 (a)(3).)
It will be recalled that during their first meeting, Phan placed Jennifer’s hand in his crotch, badgered her into orally copulating him, and digitally penetrated her. This resulted in convictions for a lewd act upon a child (count 10), oral copulation of a minor (count 11), and digital penetration of a minor (count 12). Phan argues the sentences on counts 11 and 12 should be concurrent with the sentence on count 10.
At the third meeting, Phan had sexual intercourse with Jennifer twice, with oral sex in between, and he placed his fingers in her vagina. For this, Phan was convicted of two counts of unlawful sexual intercourse (counts 14, 15), oral copulation of a minor (count 16), and digital penetration of a minor (count 17). He contends the sentences on counts 15, 16, and 17 should be concurrent with the sentence on count 14.
In imposing sentence, the trial judge said each of the acts during the first meeting was a separate crime: “Sexual penetration is far different than the oral copulation, and the lewd act... is a separate crime.... [¶] Since they are all separate crimes, I’m going to give the defendant consecutive sentencing.” Concerning the third meeting, the judge said each act of sexual intercourse was a separate crime, as was oral copulation and digital penetration, so he imposed consecutive sentences.
California Rules of Court, rule 425 sets out criteria to guide the decision to impose consecutive sentences. As applicable here, they are “whether or not (1) [t]he crimes and their objectives were predominantly independent of each other; (2) [t]he crimes involved separate acts of violence or threats of violence; or (3) [t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425 (a).) The criteria are “guidelines, not rigid rules courts are bound to apply in every case....” (People v. Calderon (1993) 20 Cal.App.4th 82, 87.)
The trial court acted within its discretion in imposing consecutive sentences. The fact they might have been concurrent does not mean they had to be. In each meeting with Jennifer, Phan committed independent crimes with independent objectives. (See People v. Harrison (1989) 48 Cal.3d 321, 325-326 [multiple sentences permissible for different sex acts committed within short period of time, rejecting argument that sexual gratification reflected a single intent and objective].) Nor can it be said Phan’s conduct during any one meeting with Jennifer reflected a single period of aberrant behavior. Quite the contrary, Phan engaged in similar actions during four encounters with Jennifer, and over the course of a two-year relationship with M. Aberrant behavior there was, but it was hardly a single incident. No sentencing error is shown.
III
Phan argues he was entitled to one additional day of presentence custody credit, 1,269 days instead of the 1,268 he was awarded by the trial court. The People agree. Accordingly, the judgment must be modified to reflect the additional day.
DISPOSITION
Phan’s presentence custody credit is modified to 1,269 days to reflect the actual time spent in custody. The clerk of the superior court shall prepare an amended abstract of judgment reflecting this modification and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. Since the
evidence supports the conviction for attempted oral copulation, and there was no sentencing error, in all other aspects the judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.