Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H36480
RIVERA, J.
Defendant Gregory Smith appeals a judgment entered upon a jury verdict finding him guilty of sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)) (count one), forcible rape (§ 261, subd. (a)(2)) (count two), and receiving stolen property (§ 496, subd. (a)) (count three). He contends on appeal that the prosecutor made improper arguments to the jury, that he received ineffective assistance of counsel, and that the trial court committed instructional and sentencing error. We order the sentence modified to strike one 5-year enhancement, and affirm in all other respects.
All subsequent statutory references are to the Penal Code.
I. BACKGROUND
A. The Sexual Assault
In January 1997, 16-year-old Jane Doe was returning to her home in Fremont at about 1:30 in the morning. As she unlocked the front door of her home, defendant grabbed her from behind, covered her mouth and nose, gripped her arms, and told her, “ ‘If you scream, or you yell, or you try and do anything I’ll kill you.’ ” He pulled her backward, and every time she tried to move or make a sound, his grip on her mouth became tighter, until she felt that her air was being cut off and began to feel faint. He pulled her away from the front door and dragged her around the side of her home. As he did so, his arm blocked her nostrils. As they passed her mother’s window, Doe saw that the light was on. She dropped the things she had in her hands in order to make noise, and tried to move out of defendant’s grip. A dog started barking, and defendant pulled Doe in another direction. He grabbed her face, mouth, and nose tighter, and she felt she was going to faint.
Doe never saw defendant and did not identify him. However, DNA testing later showed that defendant was the source of the sperm cells found in Doe’s body after the attack.
Defendant pulled Doe to a dark area with no walkways. He repeatedly told her that if she moved or screamed, he would kill her. He told her to pull her sweatshirt over her head so that it covered her head. He then told her to unfasten her pants and to pull her pants and underpants down to her ankles, and she did so. He told her to lie down, and she lay down on the wet cement, the sweatshirt still pulled up over her head. Defendant was still threatening to kill her if she moved or screamed. Doe heard a buckle, and felt defendant place his finger in her vagina. Almost immediately afterward, he placed his penis in her vagina. As he raped Doe, he told her to enjoy it and to moan. She cried continually and asked him not to kill her. When defendant stopped, he told her not to get up until she could no longer hear his footsteps.
On cross-examination, Doe agreed that the acts had taken place “almost simultaneously.”
She lay on the ground for a couple of minutes before getting up, then pulled up her pants and ran to her home. Someone there called the police. Doe was screaming and hysterical. A medical examination revealed tearing and abrasions in the vaginal area that were consistent with both nonconsensual intercourse and a finger being inserted into the vagina. Sperm cells were also present in Doe’s vagina. Doe complained of soreness in her neck and vaginal area, and there was redness on the back of her neck.
In 2003, the sperm taken from Doe’s vagina was compared with DNA taken from defendant, and the two samples were found to match. The estimated frequency of a match for the DNA found in the sperm collected from Doe’s vagina is one in 5.3 trillion for Caucasians, one in 3.4 trillion for African-Americans, and one in 19 trillion for Hispanics.
B. Receiving Stolen Property
On May 2, 2003, Hayward Police Sergeant Raymond Sisson saw defendant and another man get into a car with expired registration tags and begin to drive away. Sisson had defendant stop. Defendant was visibly upset and asked why Sisson had stopped him. Sisson told defendant he was being stopped because of the expired tags, and defendant said he had only bought the car three days previously. In the trunk Sisson found a purse with a wallet containing a driver’s license, credit cards, and a checkbook. Sisson asked defendant who owned the purse, and defendant said it was in the car when he bought it.
At the time, he was looking for defendant on behalf of the Fremont Police Department.
Documents in the car, including an “ ‘Agreement to Furnish Insurance Policy’ ” with defendant’s name on it, dated April 25, 2003, indicated the car had been purchased recently.
The purse belonged to a woman who lived in San Jose. It had been stolen from inside her home sometime between about 11:00 p.m. on May 1, 2003, and the morning of May 2.
C. The Verdicts and Sentence
The jury found defendant guilty of count one, sexual penetration by a foreign object (§ 289, subd. (a)(1)); count two, forcible rape (§ 261, subd. (a)(2)); and count three, receiving stolen property (§ 496). In connection with the sexual penetration and rape verdicts, it found not true allegations that defendant had kidnapped Doe and that the movement substantially increased the risk of harm over and above the level inherent in the commission of the offense. (§ 667.61, subd. (d)(2)).
The information against defendant included allegations that defendant had suffered several prior convictions and prison terms. Defendant admitted the allegations, and the trial court found them true. For receiving stolen property, the court sentenced defendant to 29 years to life in prison, calculated as 25 years to life under the Three Strikes law (§ 667, subd. (e)(2)(A)(ii)), and an additional year for each of four prior prison terms (§ 667.5, subd. (b)). For the rape conviction, the court imposed a consecutive sentence of 22 years in prison, calculated as the eight-year upper term, doubled by operation of section 667, subd. (e)(1), five consecutive years pursuant to section 667, subdivision (a)(1), and one consecutive year pursuant to section 667.5, subdivision (b). For the sexual penetration conviction, the court imposed a consecutive 22-year term based on the same calculations.
II. DISCUSSION
A. Prosecutor’s Remarks
Defendant contends his attorney rendered ineffective assistance by failing to object to the prosecutor’s references during closing argument to uncontradicted evidence of his guilt, and that those statements amounted to comments on his failure to testify. “Pursuant to Griffin[ v. California (1965) 380 U.S. 609], it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371.) However, the prosecution may comment “based on the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Moreover, “ ‘indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.]’ ” (Id. at p. 1340.)
Defendant contends six statements were objectionable. First, the prosecutor made a general statement that the evidence in the case “was so clear, in fact it was overwhelming and virtually uncontested.”
Second, the prosecutor discussed Doe’s testimony about the rape; an officer’s testimony that when he saw Doe at her home, she was traumatized and hysterical; and the evidence that Doe’s injuries were consistent with a forcible rape. He continued: “Now was that intercourse as a result of force or fear of bodily injury or threats? Of course it was. The evidence of that is clear and uncontradicted.” He went on to point out the evidence that defendant repeatedly threatened to kill Doe, that he was stronger than she was, that he covered her mouth and nose with his hand, and that he took her to an isolated spot.
Third, after discussing the digital penetration, the prosecutor stated, “So the rape was—the rape and the sexual assault then having been committed and proved by overwhelming and uncontradicted evidence, what do you do with that?” The prosecutor then went on to urge the jury to find true the kidnapping enhancement.
Fourth and fifth, the prosecutor referred twice to the uncontradicted nature of the expert testimony about the DNA match.
Sixth, at the end of his argument, immediately after discussing the evidence to support the charge of receiving stolen property, the prosecutor stated: “So that’s all I want to say at this point. I’m going to turn things over to [defense counsel] for his closing argument. I just want to emphasize that it’s important that you talk and deliberate. Look at all the evidence. Look at how everything’s corroborated. Look at all the documentation. Recall the testimony of the witnesses and essentially how clear, how uncontradicted, how credible all of it was, how everything was talked about and handled with professionalism. When you do that and you look at all that, you do so objectively and reasonably, you’re going to find that the evidence is more than sufficient to prove that the defendant committed all of these crimes and that with respect to the sex crimes, he committed the kidnapping for the purpose of facilitating that crime and increas[ing] the harm to Jane Doe.”
The standard for evaluating a claim of ineffective assistance of counsel is well established. First, the defendant must show that counsel’s performance was deficient. “ ‘This requires a showing that “counsel’s representation fell below an objective standard of reasonableness.” . . . In evaluating a defendant’s showing of incompetence, we accord great deference to the tactical decisions of trial counsel.’ ” (In re Jackson (1992) 3 Cal.4th 578, 601, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) Second, the defendant must show prejudice as a result of counsel’s alleged incompetence. “ ‘ “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . [¶] The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (Jackson, supra, 3 Cal.4th at p. 601.)
This burden is difficult to carry on direct appeal, because the record often contains no indication of why counsel acted in a particular way, or failed to do so. (People v. Lucas (1995) 12 Cal.4th 415, 437.) If “ ‘ “the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In such a case, the claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (Id. at pp. 266-267.)
Defendant concedes that the references to the uncontradicted nature of the DNA evidence were not improper. Such evidence would most naturally be contradicted not by defendant’s own testimony, but by other expert testimony.
As to the other comments that defendant challenges, he has not carried his burden of showing prejudice. Defendant did not dispute at trial that Doe had been raped; indeed, his counsel acknowledged that the evidence of the rape was “overwhelmingly conclusive,” and that the rape was a “violent rape” with “no mitigating facts.” He did, however, argue that the evidence did not show beyond a reasonable doubt that defendant was guilty of digital penetration and receiving stolen property. Thus, the identity of Doe’s attacker and defendant’s guilt of rape were not seriously in question. In light of the virtual acknowledgement that defendant had raped Doe, we see no likelihood that defendant suffered prejudice from the prosecutor’s statement that the rape and sexual penetration had been committed by “overwhelming and uncontradicted evidence,” and his general statement that the evidence was “overwhelming and virtually uncontested.”
Nor has defendant shown prejudice from his counsel’s failure to object to the general statement at the end of the prosecutor’s closing about “how clear, how uncontradicted, how credible all of [the evidence] was, how everything was talked about and handled with professionalism.” Defendant takes the position that because this statement was made after the prosecutor’s summation of the evidence of receiving stolen property, the comment would have touched a “live nerve” and prejudiced his defense to this charge. However, the statement was a general one, not directed specifically at the stolen property charge, and we see no reason to conclude that it led the jury to consider defendant’s failure to testify. Moreover, we cannot conclude that defense counsel could not have had any tactical reason for allowing the prosecutor—who was clearly coming to the end of his argument—to finish speaking without an objection that might in itself draw attention to defendant’s failure to testify.
B. Instructional Error
Defendant contends the jury was misled by the instructions on the charge of receiving stolen property, and that the problem was compounded by the arguments of the prosecutor. Two instructions are at issue. The court instructed the jury pursuant to CALJIC No. 14.65 as follows: “The defendant is accused in count three of having committed the crime of receiving stolen property, a violation of section 496 subdivision (a), of the Penal Code. [¶] Every person who buys or receives any property which has been stolen, knowing the property to be stolen, or who conceals or withholds or aids in concealing or withholding property from the owner, knowing the property to have been stolen, is guilty of the crime of receiving stolen property . . . . [¶] In order to prove this crime, each of the following elements must be proved: One, a person received property which had been stolen; [¶] And, two, a person concealed or withheld or aided in concealing or withholding property from the owner which had been stolen; [¶] And, three, that the person actually knew the property was stolen at the time he received, withheld, concealed, or aided in concealing or withholding from the owner the property.”
On the issue of intent, the court instructed the jury pursuant to CALJIC No. 3.30 as follows: “In the crime of . . . receiving stolen property . . . , there must exist a union or joint operation of act or conduct in general criminal intent. [¶] General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.”
Defendant acknowledges that CALJIC No. 14.65 correctly states the law, but argues that the application of CALJIC No. 3.30 to the crime of receiving stolen property could have misled the jury by suggesting that he could be guilty if he only “ ‘intentionally did the act that the law declares to be a crime’—that is, if he received stolen property—even though he did not know that the property was stolen.”
The problem with this argument is that the jury was not instructed that simply receiving stolen property was “ ‘the act that the law declares to be a crime.’ ” Instead, it was instructed that the crime is committed by receiving stolen property, “knowing the property to have been stolen.” (Italics added.) Further highlighting this point, the court instructed the jury that one of the elements that must be proved was that defendant “actually knew the property was stolen” (italics added) at the time he received it. We see no likelihood of confusion about whether defendant could be guilty of receiving stolen property if he did not know the property was stolen.
Defendant also contends that the arguments of counsel made it unlikely the jury correctly resolved what he characterizes as inconsistent instructions. As we have concluded that the instructions were not inconsistent, we necessarily reject this contention. We presume that the jury followed the instructions. (People v. Cain (1995) 10 Cal.4th 1, 52.) In any case, defendant acknowledges that the prosecutor pointed out several times in closing argument that an element of the crime was knowledge that the property was stolen. We see no likelihood that the passing comments defendant challenges, even if in artfully phrased, would have misled the jury about the meaning of the instructions.
Those comments included the statement that to prove defendant guilty of stolen property, the People would have to prove “that they had the property, they had possession of it, and they had it knowingly. And then you have to infer from the other facts, well, of course they had to under these circumstances from the fact that we—from the facts we do know, have known, that they knew the character of it as stolen or that they chose to withhold it or conceal it.” (Italics added.) Defendant also points to the prosecutor’s argument that if defendant didn’t know the purse was stolen property, “he could have said officer, I have no idea how that purse got there. But he didn’t say that. He lied.”
C. Prosecutor’s Argument on Reasonable Doubt
Defendant contends that certain comments the prosecutor made during closing argument misled the jury, that the trial court erred in failing to give a preclusive instruction, and that his counsel rendered ineffective assistance in failing to object.
Generally, a defendant may not complain on appeal of prosecutorial misconduct unless he made a timely assignment of misconduct and requested an admonishment that the jury be instructed to disregard the impropriety. (People v. Clair (1992) 2 Cal.4th 629, 662.) Here, there was no objection to the remarks defendant now challenges. As we shall discuss, we reject the contention that counsel rendered ineffective assistance in failing to make such an objection because we conclude that the jury was not reasonably likely to have been misled by the prosecutor’s argument. (See id. at p. 663.)
In arguing that defendant knew the purse had been stolen, the prosecutor stated: “So you know you can’t just throw up your hands and say, okay, that sounds reasonable. Maybe the guy didn’t know the purse was in the trunk of his car. Of course he did. He admitted. [¶] . . . [¶] And so the idea that that purse magically appeared in the trunk is ridiculous, and the idea that the defendant should be found not guilty of this crime because he tosses off some comment to an officer like, hey, I don’t know. It came with the car, it came with the car when I bought it, that’s not reasonable. For you to find an explanation for the purse in the trunk of his car given his lie and admission, for you to find not guilty, there has to be a line of reason that takes you to an interpretation of fact that is not unreasonable and that is consistent with innocence. All right. [¶] If the only reasonable interpretation of facts is that he knew the purse was in his trunk because he said he did, and that he lied about it because he knew it was stolen, if that’s the only reasonable inference, that’s the one you’ve got to follow. And, believe me, I can’t think of an innocent interpretation that’s consistent with the facts you have in this case. That’s the point consistent with the facts you have in this case. [¶] Defendant at the time took his opportunity to explain the purse to the cop when he had it. He took that opportunity. If he really didn’t know it was stolen, the easy explanation is also the truthful one, which is I don’t know how it got there. I loaned the car out. Somebody—or I was driving. I picked up a woman, and she said mind if I keep my purse in the trunk of the car? I did, and she left. I don’t know what happened. There could be some explanation that he could have given that would have been more reasonable, and he chose to lie about it, and that tells you everything you need to know.”
Defendant focuses on the statements that for the jury to find defendant not guilty, there “has to be a line of reason that takes you to an interpretation of fact that is not unreasonable and that is consistent with innocence,” and that if “the only reasonable interpretation” is that defendant knew the purse was stolen, “that’s the one you’ve got to follow.” According to defendant, the instruction misstated the law by ignoring the constitutional requirement that the prosecution present evidence that proves each element of the crime beyond a reasonable doubt; that is, even if the evidence presented admits of only one reasonable interpretation, the jury might conclude that the evidence is not comprehensive or strong enough to eliminate a reasonable doubt of the defendant’s guilt.
Here, the point of the prosecution’s argument was that defendant himself indicated that he knew the purse was in the car when he told Sisson that the purse had been in the car when he had bought the three days previously. That statement, the prosecutor argued, was a lie, and the lie was inconsistent with a conclusion that defendant did not know the purse was stolen.
The purse had been stolen less than a day before Sisson found it in defendant’s car.
This case is unlike People v. Hill (1998) 17 Cal.4th 800, upon which defendant relies. There, the prosecutor argued that “ ‘[t]here has to be some evidence on which to base a doubt,’ ” thus potentially suggesting that the People did not have the burden to prove every element of the case. (Id. at p. 831, italics omitted.) The prosecutor here argued instead that the evidence actually before the jury admitted only one reasonable explanation. In the circumstances, the argument was not likely to mislead the jury on the prosecution’s burden of proof beyond a reasonable doubt. Accordingly, we reject defendant’s arguments that the trial court should have made a preclusive instruction and that his counsel rendered ineffective assistance by failing to object.
In light of our previous conclusions, we reject defendant’s contention that he suffered cumulative prejudice.
D. Sentencing Issues
1. Enhancements on Determinate Terms
The trial court added five-year enhancements to the determinate sentences on the rape and sexual penetration charges. The same prior conviction—prior number three, a 1994 conviction for residential burglary—was used to enhance both sentences.
Defendant contends, and the Attorney General concedes, that the use of the same prior conviction in connection with both determinate sentences was improper. We agree. Our Supreme Court has ruled that under section 1170.1, a trial court may impose a sentence enhancement for a prior felony conviction only once in imposing a determinate sentence, regardless of the number of new felony offenses. (People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell), overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401; People v. Williams (2004) 34 Cal.4th 397, 401-403 (Williams).) One of the five-year enhancements must be stricken and the sentence modified accordingly.
Section 1170.1, subdivision (a) provides in pertinent part: “Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1 . . . .”
2. Dual Use of Prior Conviction
In a related argument, defendant contends the trial court erred in using prior number three both to impose the five-year consecutive terms in connection with the rape and sexual penetration convictions pursuant to section 667, subdivision (a), and to impose a one-year consecutive term for receiving stolen property pursuant to section 667.5, subdivision (b). Although we have already agreed with defendant that this prior could be used to enhance only one of his determinate sentences, we conclude it could properly be used to enhance not only one determinate sentence but his indeterminate sentence as well.
Section 667, subdivision (a) provides in pertinent part: “(1) . . . [A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . , shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. [¶] (2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. . . .”
Section 667.5, subdivision (b) provides for enhancement of prison terms for new offenses because of prior prison terms as follows: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
In People v. Jones (1993) 5 Cal.4th 1142, 1144-1145 (Jones), our Supreme Court considered whether a defendant’s sentence could be enhanced for both a prior conviction (under what is now § 667, subd. (a)) and the resulting prison term (under § 667.5, subd. (b)). The court concluded, “the most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Jones, at pp. 1149-1150.) Defendant argues that under Jones, he should not have received consecutive term enhancements under sections 667, subdivision (a), and 667.5, subdivision (b), based on the 1994 burglary conviction.
At the time, the language now contained in section 667, subdivision (a)(2) was found in section 667, subdivision (b). (Stats. 1989, ch. 1043, § 1, p. 3619; see Jones, supra, 5 Cal.4th at p. 1146.)
The Attorney General acknowledges that ordinarily a court may not impose separate terms under sections 667 and 667.5 resulting from the same prior conviction, but takes the position that Jones is not applicable here because the consecutive term enhancements were imposed in connection with a Three Strikes sentence. In particular, the Attorney General argues, the enhancement terms were permissible because the court imposed the greater enhancement in connection with the determinate sentence (for rape and sexual penetration), and imposed the prior prison term as part of the indeterminate Three Strikes sentence. For this proposition, the Attorney General relies on Williams. The issue in Williams was whether an enhancement for a prior conviction could be imposed separately to increase multiple indeterminate third strike sentences. (Williams, supra, 34 Cal.4th at p. 400.) The defendant there was convicted in one case (the rape case) of various sexual offenses, and in an unrelated case (the burglary case) of residential burglary and unlawfully taking or driving a vehicle. The defendant was found to have suffered two prior convictions for serious or violent felonies under section 667, subdivision (a)(1) and under the Three Strikes law in the rape case, and the same two prior convictions in the burglary case. (Williams, at p. 400.) The trial court imposed sentence in both cases on the same day. In each case, the sentence included two 5-year terms for the prior serious felonies. The terms were to run consecutively. The defendant argued on appeal, and before the Supreme Court, that the trial court erred in imposing five-year enhancements in the rape case after the same prior convictions had been used to enhance the sentence in the burglary case. (Id. at pp. 400-401.)
The Supreme Court rejected the defendant’s contention. The court pointed out that section 667, subdivision (a), which was adopted by voter initiative in 1982 as Proposition 8, did not expressly address the situation in which a defendant with a prior conviction for a serious felony is thereafter convicted of more than one serious felony offense; that is, whether a five-year enhancement should be added separately to the sentence for each new felony conviction, or whether it should be added only once to add a single five-year term to the overall sentence for all new offenses. (Williams, supra, 34 Cal.4th at p. 401.) As the court explained, it had previously decided in Tassell that under section 1170.1, at sentencing a trial court must impose a sentence enhancement for a prior felony conviction only once, regardless of the number of new felony offenses. (Williams, supra, 34 Cal.4th at pp. 401-402, citing Tassell, supra, 36 Cal.3d at p. 90.)
The Williams court went on to note, however, that section 1170.1 applies only to determinate sentences, not to multiple indeterminate sentences imposed under the Three Strikes law. (Williams, supra, 34 Cal.4th at p. 402.) The court concluded that the five-year enhancement of section 667, subdivision (a) should be added separately to the third strike sentence for each new serious felony conviction, reasoning that it was consistent with the intent of the voters in enacting both Proposition 8 and the Three Strikes law. In doing so, it stated, “Under [the Three Strikes] law, the status or nature of the offender as a person previously convicted of serious felony offenses does not result merely in a single additional term of imprisonment for each prior conviction added on to the overall sentence that would otherwise be imposed for all of the new offenses. Instead, the Three Strikes law uses a defendant’s status as a recidivist to separately increase the punishment for each new felony conviction. . . . [¶] . . . [W]e conclude that, under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (Williams, at pp. 404-405, fn. omitted; see also People v. Cressy (1996) 47 Cal.App.4th 981, 989 [prior conviction could be used both as strike to bring defendant under Three Strikes sentencing scheme and as basis for prior prison commitment under § 667.5, subd. (b)].)
This case is different from Williams in that the enhancement defendant challenges was imposed not in connection with two indeterminate Three Strikes sentences, but in connection with a determinate and an indeterminate sentence. The court in People v. Misa (2006) 140 Cal.App.4th 837, 841, 847, was faced with a similar situation, and applied Williams to conclude that the defendant—there, a second strike defendant—was subject to a prior conviction enhancement under section 667, subdivision (a) in connection with both the determinate and the indeterminate sentence.
Applying the reasoning of Williams and Misa, we conclude that the trial court could properly apply enhancements based on the 1994 burglary conviction both to the Three Strikes sentence and to one of the determinate sentences. Jones does not lead us to conclude otherwise. The question there was whether sentence enhancements could be imposed under both section 667, subdivision (a) and section 667.5, subdivision (b), under the determinate sentencing scheme, in which the trial court imposes enhancements for prior convictions only once regardless of the number of new felonies. (See Jones, supra, 5 Cal.4th at pp. 1144-1145; see also Williams, supra, 34 Cal.4th at pp. 401-402, citing Tassell, supra, 36 Cal.3d at p. 90.) In that context, the court concluded that enhancements under the two statutes could not be imposed for the same prior offense. Williams and Misa make clear, however, that in the Three Strikes sentencing scheme, a defendant is subject to sentence enhancements based on the same prior offense for each of the new offenses.
3. Upper Term for Rape and Sexual Penetration Counts
Defendant contends the trial court erred under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham) when it imposed the upper term for the rape and sexual penetration convictions. In sentencing defendant on the rape count, the trial court stated that its reasons for choosing the upper term were that defendant had served four prior prison terms, that he had been on both court probation and parole when the crime was committed, and that his performance on probation and parole had been unsatisfactory.
Although the trial court did not articulate separately its reasons for selecting the sentence on the sexual penetration charge, it appears that it used the same reasoning for both the rape and the sexual penetration charges.
In Cunningham, the United States Supreme Court stated: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” (Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d at p. 873, 127 S.Ct. at p. 868].) Defendant contends the trial court violated this rule by relying on his parole status and his unsatisfactory performance on probation and parole.
Defendant argues that the record does not support the conclusion that he was on court probation at the time of the rape, but does not dispute that he was on parole.
The prior conviction exception has been interpreted to encompass “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 819 (Black II); see also People v. Abercrombie (2008) 161 Cal.App.4th 68, 74-75 (Abercrombie).) These factors have been held to include recidivism, including a defendant’s status as a parolee and his prior unsatisfactory performance on parole. (People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) As stated in Yim, “[t]hese factors can be determined by reference to ‘court records’ pertaining to appellant’s prior convictions, sentences and paroles. The mere recitation of his dates of conviction and releases on parole . . . demonstrate, as a matter of law, that he committed new offenses while on parole. Thus he performed poorly on parole. [Citation.] No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi [v. New Jersey (2000) 530 U.S. 466] exception to the jury trial right.” (Id. at p. 371.)
Abercrombie recently reached the same conclusion, stating: “We believe parole status qualifies under the recidivism exception for three reasons: [¶] First, parole is ‘a release under supervision of a parole officer following service of some term of incarceration.’ [Citation.] Thus, parole, by its very nature, relates to the fact that the defendant was committed to state prison by virtue of having a prior felony conviction. [¶] Second, as with a prior conviction, a parolee’s status can be established by a judicial review of criminal court records. . . . And the examination of court records involves ‘ “the type of inquiry that judges traditionally perform as part of the sentencing function.” ’ [Citation.] [¶] Third, as in the case of a prior conviction, the defendant’s parole status ‘ “does not relate to the commission of the offense, but goes to the punishment only.” ’ [Citation.] A parole violation is an archetypical sentencing consideration that is materially different from the crime-based facts that posed Sixth Amendment problems under Cunningham and Blakely[ v. Washington (2004) 542 U.S. 296].” (Abercrombie, supra, 161 Cal.App.4th at p. 75; see also People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515 [court could properly rely on factors related to recidivism to impose upper term].)
Defendant urges us not to follow Yim, arguing that it ignored the principles articulated in People v. Trujillo (2006) 40 Cal.4th 165, and that under Trujillo the court may look only at the records that show the basis for the conviction and the facts of the offense of which defendant was convicted. Trujillo concluded that in determining whether a prior conviction was a serious felony within the meaning of the Three Strikes law, the trial court could not properly rely on statements made by a defendant reflected in a probation officer’s report. (Trujillo, at pp. 179-181.) As the court stated, such statements, made after the defendant’s guilty plea in the prior matter had been accepted, “are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ ” (Id. at p. 179.) Trujillo did not consider the question now before us, and does not stand for the proposition that the trial court may not consider court records related to a defendant’s recidivism. We agree with the reasoning of Yim and Abercrombie, and conclude the trial court could properly rely on defendant’s parole status in imposing the upper term.
The question of whether Blakely precludes a trial court from making findings on aggravating factors in support of an upper term sentence is currently pending before the California Supreme Court. (People v. Towne (S125677) argued and submitted Apr. 2, 2008; see also People v. Garcia (2008) 162 Cal.App.4th 18, 35, fn. 8 [2008 Cal.App. Lexis 583, *** 31, fn 8].)
Having reached this conclusion, we need not consider defendant’s other challenges to the selection of the upper term for the rape and sexual penetration counts. Under this state’s determinate sentencing system, the existence of a single aggravating factor is sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); accord, Black II, supra, 41 Cal.4th at p. 813.) Where the defendant challenges the use of fact not found true by a jury under Cunningham, we follow the rule that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.) As to defendant’s contention that the trial court improperly made dual use of prior prison terms, we follow Osband, which stated that improper dual use of the same fact for imposition of both an upper term and an enhancement does not necessitate resentencing if it is not reasonably probable that a more favorable sentencing would have been imposed absent the error. (Osband, supra, 13 Cal.4th at p. 728.) On this record, we see no reasonable probability of a different result if the court had not considered the prior convictions.
4. Full Consecutive Terms
The trial court sentenced defendant to full consecutive terms for the rape and sexual penetration counts. (§ 667.6.) Defendant contends the trial court committed a variety of errors in doing so.
Defendant acknowledges that the Three Strikes law required the trial court to order the indeterminate term for receiving stolen property to run consecutively to the determinate terms for the sex offenses. (§ 667, subd. (e)(2)(B), § 1170.12, subd. (c)(2)(B).) His challenge on this point is limited to the trial court’s decisions to impose consecutive terms for the two sex offenses and to order full consecutive terms under section 667.6, rather than principal and subordinate terms under section 1170.1.
a. Legal Background
Section 667.6 provides in pertinent part: “(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. . . . [¶] (d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”
The offenses listed in subdivision (e) include the rape and sexual penetration offenses of which defendant was convicted. (§ 667.6, subd. (e)(1), (8), § 261, subd. (a)(2), § 289, subd. (a).)
In making a discretionary decision to impose full consecutive terms, the trial court first decides whether to sentence defendant to concurrent or consecutive terms. Our Supreme Court has described the process as follows: “A decision to sentence under section 667.6, subdivision (c) is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively. [¶] This does not mean that the reasons justifying full term consecutive sentencing under section 667.6, subdivision (c) must necessarily be different than those used to justify the imposition of consecutive sentences under section 1170.1. The criteria listed in [California Rules of Court, rule 425 [now 4.425]—which, as noted, incorporate those of rules 421 and 423 [now 4.421 and 4.423]—apply to both decisions and cover all degrees and nuances of depravity. What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (People v. Belmontes (1983) 34 Cal.3d 335, 347-348, fn. omitted; see also People v. Pena (1992) 7 Cal.App.4th 1294, 1317 (Pena).)
All subsequent rule references are to the California Rules of Court.
b. The Trial Court’s Ruling
The trial court explained its initial decision to make the sentences on the two sex offenses consecutive as follows: “The defendant’s prior convictions as an adult . . . are obviously numerous and are of increasing seriousness. This defendant has suffered . . . four prior convictions for burglary, three of which are of residential burglary of the first degree. Those are serious crimes as defined by California statute. They are violent crimes as defined by California statute. . . . [¶] But they pale in significance and degree of violence with the crimes he committed in this incident against the victim Jane Doe. So . . . to use the sterile language of the rule of court, the defendant’s prior convictions as an adult are numerous and are of increasing seriousness[. T]hat, as I’ve said, is a vast understatement. This defendant has escalated his behavior from residential burglary, serious in itself, to the most hideous and violent and offensive crimes of a person and that is rape and other sexual assaults. So these two rules of court, in my judgment, amply justify the exercise of the court’s discretion in imposing consecutive sentences for count one, consecutive as to both count two and consecutive to count three.”
The trial court then acknowledged that it needed to make a separate sentencing decision under section 667.6. It first determined that the sex offenses were committed on separate occasions for purposes of section 667.6, subdivision (d), stating, “In my judgment the facts amply reflect the following: The defendant committed a sexual assault pursuant to section 289 of the Penal Code. He could have stopped after that. There’s no question that he had the opportunity to reflect on his actions, and he chose to continue in a separate and different sexual assault, that is rape.” The court then went on to describe other factors that it believed justified the imposition of a full consecutive sentence under section 667.6, subdivision (c), stating, “This crime was a crime, again using the sterile language of the rule of court, the crime of rape, violence, great bodily harm, or threat [of] a great bodily harm. It exhibited an extraordinarily high degree of cruelty and viciousness and callousness.” The court also found that the victim was particularly vulnerable, that she “literally had the key in her lock of her front door,” that she was snatched from the doorstep of her house, dragged down a walk, nearly suffocated in the process, taken to a dark, secluded place, and sexually assaulted twice.
c. Applicability of Cunningham
We first consider defendant’s contention that the trial court violated the rule of Cunningham by imposing full consecutive sentences without a jury trial on the findings that formed the basis for the sentence decision. Our Supreme Court held in Black II that, “consistent with this court’s determination in Black I [People v. Black (2005) 35 Cal.4th 1238], . . . neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.” (Black II, supra, 41 Cal.4th at p. 806; see also id. at pp. 820-823.) Black I had ruled that the rationale of Blakely and Apprendi was not implicated by a statute that allowed judges to decide whether to impose consecutive sentences without jury fact finding; as the court stated, “The jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.” (Black I, supra, 35 Cal.4th at p. 1263.) In reaching this conclusion, the court cited with approval People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231, which held that the imposition of full consecutive sentences under section 667.6, subdivision (d) did not violate a defendant’s right to a jury trial. (Black I, supra, 35 Cal.4th at p. 1263, fn. 19.) Accordingly, we reject defendant’s claim of Cunningham error.
Black II considered the imposition of consecutive terms under section 669, which provides in relevant part: “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” Black II was decided after the United States vacated Black I and remanded the case to the California Supreme Court for further consideration in light of Cunningham. (Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36, 127 S.Ct. 1210]; Black II, supra, 41 Cal.4th at p. 805.) Our Supreme Court explained in Black II that Cunningham did not undermine its previous conclusion in Black I that the imposition of consecutive sentences did not implicate a defendant’s Sixth Amendment rights. (Black II, supra, 41 Cal.4th at p. 821.)
d. Imposition of Full Consecutive Terms
Defendant contends the factors the trial court relied on in imposing full consecutive terms do not support its decision. In making its initial decision to impose consecutive terms, the trial court relied on both defendant’s prior convictions and the nature of his offenses against Doe. The court noted that defendant had four prior convictions for burglary, three of which were residential burglary of the first degree, and stated that they were serious and violent crimes as defined by California statute. The burglary conviction occurred in the State of Indiana, the residential burglary convictions in California. Defendant contends, and the Attorney General concedes, that two of the residential burglaries the court relied on occurred after the attack on Doe and do not qualify as “prior convictions.” (See People v. Rojas (1988) 206 Cal.App.3d 795, 798-802.) A third prior conviction for residential burglary had already been used to add a five-year enhancement and could not be used to impose consecutive sentences. (Rule 4.425(b)(2).) The single remaining Indiana conviction could not be considered “numerous or of increasing seriousness.” (Rule 4.421(b)(2).) We agree with defendant that his prior convictions do not provide a basis to impose consecutive sentences.
Rule 4.421 lists as circumstances in aggravation the fact that a defendant has engaged in violent conduct that indicates a serious danger to society and the fact that the defendant’s prior convictions are numerous or of increasing seriousness. (Rule 4.421(b)(1), (2).)
We reach a different result regarding defendant’s challenge to the trial court’s reliance on the violence of his attack on Doe in imposing consecutive sentences. Defendant argues that the trial court erred in doing so because violent conduct is a necessary element of the crimes of rape and sexual penetration. (See People v. Fernandez (1990) 226 Cal.App.3d 669, 679 [trial court improperly used fact that forcible lewd conduct (§ 288) had involved violence, bodily harm, threat of bodily harm as aggravating factor where force was element of crime]; People v. McElrath (1985) 175 Cal.App.3d 178, 188, fn. 7 [violence is inherent in multiple forcible sex crimes, and alone cannot justify sentencing under § 667.6, subd. (c)]; People v. Lee (1980) 110 Cal.App.3d 774, 784 [force and violence “may be inherent in forcible rape itself”].) Here, the trial court could reasonably conclude that defendant’s actions—including his conduct in suffocating Doe as he pulled her to a secluded spot—exceeded the violence inherent in the sex crimes themselves and justified imposition of consecutive sentences. We conclude that this factor supports the trial court’s decision to impose consecutive sentences.
The trial court recited this fact in explaining its decision to impose full consecutive sentences under section 667.6.
The trial court then made a separate decision to impose full consecutive sentences under section 667.6, rather than principal and subordinate sentences under section 1170.1, relying on both the mandatory provision of section 667.6, subdivision (d) and the discretionary provision of section 667.6, subdivision (c). As relevant here, subdivision (d) mandates full consecutive terms where the crimes involve the same victim on different occasions. The trial court found this section applicable on the ground that defendant had the opportunity to reflect after the digital penetration, and chose to carry on to rape Doe.
Defendant contests this finding, noting that the two acts took place “almost simultaneously” and that there were no pauses, intervening actions or cessation of the assaultive behavior. In Pena, upon which defendant relies, the Court of Appeal concluded the trial court should not have sentenced the defendant under section 667.6, subdivision (d) where after raping the victim, the defendant “simply flipped the victim over and orally copulated her.” (Pena, supra, 7 Cal.App.4th at p. 1316.) The court concluded the assault was continuous, and that the defendant “did not cease his sexually assaultive behavior, and, therefore, could not have ‘resumed’ sexually assaultive behavior.” (Ibid.; see also People v. Corona (1988) 206 Cal.App.3d 13, 15, 18 [no interval between sex crimes affording reasonable opportunity to reflect; defendant did not resume sexually assaultive behavior because he never ceased it]; People v. Garza (2003) 107 Cal.App.4th 1081, 1092-1093 [concluding defendant had adequate opportunity to reflect between two sexual acts when he put gun in back seat and changed positions]; People v. Plaza (1995) 41 Cal.App.4th 377, 384-385 [sustaining finding under § 667.6, subd. (d) where assaultive sexual behavior had stopped when the defendant pushed victim into another room and removed her clothing, and again when the defendant stopped, listened to answering machine, and punched holes in wall].) However, a finding of “separate occasions” does not require “a change of location or an obvious break in a perpetrator’s behavior.” (People v. Irvin (1996) 43 Cal.App.4th 1063, 1070-1071.)
Here, defendant digitally penetrated Doe and almost immediately raped her. We question whether the evidence supports a conclusion that he had the opportunity to reflect and nevertheless resumed his sexually assaultive behavior (§ 667.6, subd. (d)), because he does not appear ever to have ceased that behavior. We need not decide this issue, however, because whether or not the trial court erred in basing its decision to impose full consecutive sentences on the mandatory provisions of section 667.6, subdivision (d), it acted properly under the discretionary provisions of subdivision (c). In making its discretionary decision, the trial court concluded that the crimes involved violence, great bodily harm, or threat of great bodily harm; that they exhibited an extraordinarily high degree of cruelty, viciousness, and callousness; that the victim was particularly vulnerable in that she was taken from the doorstep of her house; that she was dragged away to a secluded place; that she was nearly suffocated in the process; and that she was assaulted twice in an “offensive and intrusive manner.” The trial court’s conclusion that the attack involved the threat of violence is supported by the fact that defendant repeatedly threatened to kill Doe. The evidence also shows that defendant had Doe pull her sweatshirt over her head during the attack, increasing her vulnerability, and that during the rape he told her to moan and “enjoy it” as she cried.
Defendant’s behavior is similar in viciousness and callousness to that found to support a full consecutive sentence in People v. Pock (1993) 19 Cal.App.4th 1263 (Pock). There, the victim testified that her clothing was cut off, her attackers threatened to cut her hair, her mouth was covered, and her hands were tied, and defendant threatened to kill her if she called the police. The court in Pock concluded that these facts “clearly rose above those necessary to commit the offense” and supported the court’s decision under section 667.6, subdivision (c). (Pock, at pp. 1277-1278.) Similarly here, defendant’s behavior shows a callousness and viciousness that rise above that necessary to commit the offenses in question and that support the trial court’s decision.
Because we reach this conclusion, we reject defendant’s argument that his counsel rendered ineffective assistance by failing to object to the sentence.
III. DISPOSITION
The trial court is directed to modify the sentence to strike one 5-year enhancement, and to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P. J., SEPULVEDA, J.