Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07296
SIMS, Acting P. J.Following a bench trial, the trial court convicted defendant Daniel Louis Snowden of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), kidnapping to commit rape (§ 209, subd. (b)(1)), false imprisonment (§ 236), and assault with a deadly weapon (§ 245, subd. (a)(1)), while sustaining firearm and one one-strike allegations (§§ 667.61, subds. (d)(2), (e)(4), (e)(5), 12022.5, subd. (a), 12022.53, subd. (b)). Defendant was sentenced to a prison term of 50 years to life plus 13 years.
Undesignated section references are to the Penal Code.
On appeal, defendant contends: (1) his jury trial waiver was invalid; (2) insufficient evidence supports his false imprisonment conviction; (3) the false imprisonment conviction must be reversed as a lesser included offense of forcible rape; (4) the court did not understand its discretion to impose concurrent life terms; and (5) his life term for kidnapping to commit rape was unauthorized. We shall order a correction to the abstract and affirm.
BACKGROUND
In September 2003, T.P., recently kicked out of her group home for turning 18, went to Sacramento with two other women to work as a prostitute. She started in the Stockton Boulevard area and wound up at a local bar. T.P. went to the bar’s parking lot, where she noticed defendant, who asked her to come over.
T.P. went to the car and talked to defendant for about five minutes, but did not intend to solicit him for prostitution. Defendant sounded “kind of nerdy at first,” but his demeanor changed: he got violent, pulled out a little silver semiautomatic gun, and told T.P. to get in the car. T.P. complied and defendant drove off with her.
Defendant soon grabbed T.P.’s neck, pushed her head down, and forced her to perform oral sex on him while he drove. When she resisted, defendant told T.P. he would cut her open and leave her body by the trash cans.
T.P. testified defendant forced her to orally copulate him again after the car stopped. Defendant moved T.P.’s seat back and he got on top of her. He then took off her shirt, fondled and kissed her, and then raped her.
Defendant kept telling T.P. he was her new pimp now, calling himself Pimping Brady or Pimping Breezy. After finishing, defendant started to drive, finally letting her off at a West Sacramento hotel parking lot, where he told T.P. to make $500 for him as a prostitute.
As T.P. called 911 from a pay phone at a gas station, defendant’s car pulled in. He got out of the car, asked T.P. who she was calling, punched her in the stomach, and slapped her in the face before driving off.
T.P.’s sexual assault examination did not rule out consensual sex or sexual assault.
C.R. testified under immunity. In November 2003, she was homeless and working as a prostitute. She was on Stockton Boulevard walking to a friend’s house after midnight, not intending to solicit prostitution, but open to offers if propositioned. Defendant pulled over in his car and propositioned C.R., who accepted the offer and took $30 from him. C.R. got in and performed oral sex on defendant as he drove to a nearby hamburger restaurant. When they got to the parking lot, defendant asked C.R. for intercourse without a condom, which she refused.
Defendant, who called himself Brazy, quickly changed his demeanor and took a gun from the arm rest. Pointing the revolver at C.R.’s face, defendant told her to disrobe. He then fondled C.R., lifted her skirt up, jumped over to the passenger seat, and raped her. C.R. subsequently testified she did not remember whether she performed oral sex on defendant.
Seeing defendant’s gun, C.R. was afraid to jump out of the car and leave after the rape. Defendant continued driving, and at some point ordered C.R. to leave. As the car slowed down for a traffic light, C.R. decided to grab defendant’s cell phone and jump out.
C.R. ran down the middle of the street and called 911 while defendant chased her in his car. Approaching a convenience store, she heard sirens, and defendant then drove off.
C.R. admitted she had told the officer, the 911 dispatcher, and the nurse conducting her medical exam that she had been forced into the car at gunpoint. She did so because of her past; C.R. wanted the authorities to take her report seriously.
The first responding officer took C.R.’s statement. C.R., who cried so much that she could barely speak, said her assailant pulled a gun on her, forced her into his car, and compelled her to perform oral sex on him. When the assailant got to the parking lot, he forced her to have unprotected intercourse with him. The assailant, who called himself Brazy, held a gun the entire time.
Defendant’s DNA was found in swabs taken from both victims. Both T.P. and C.R. identified defendant as their assailant in photographic lineups.
DISCUSSION
I.
The following colloquy among the court, defense counsel Kenneth Rosenfeld, and defendant took place just before the court was scheduled to rule on in limine motions:
“[The Court:] So we are here on these motions in limine this morning. We talked yesterday about the possibility of doing this as a court rather than a jury trial, and that decision will have some bearing on these motions.
“Have you had a chance to discuss that with [defendant], [Defense Counsel]?
“[Defense Counsel]: Yes, your Honor, I have.
“The Court: What do you think[?]
“[Defense Counsel]: If I may allow [defendant] to speak.
“The Court: [Defendant].
“The Defendant: Yes, sir. I think it would be -- it would be good.
“The Court: You want to do a court trial?
“The Defendant: Yeah, yes, sir.
“The Court: All right. All right. Let me advise you that you -- whenever the Government charges you with a crime, they have to prove [it] beyond a reasonable doubt, and you have a number of rights that apply in that situation.
“I am going to advise you what all those rights are. You are going to have all those rights intact when you are trying the case to me, just the same as you would with a jury.
“The only difference is going to be that I will be the finder of facts instead of the jury, okay. So all the rights that you have are, the right to a jury trial, the right to see and hear witnesses testify under oath, and have your attorney question them, the right to remain silent, not incriminate yourself, and the right to testify, to present a defense, and use the court’s subpoena power to bring evidence and witnesses to court.
“Do you understand all those rights?
“The Defendant: Yes, sir.
“The Court: And do you waive your right to a jury trial so that the case will be tried to a court, and the court will be the finder of fact?
“The Defendant: Yes, sir.”
The court next obtained the People’s and defense counsel’s consent to the jury trial waiver, and then said: “All right. Well, this is going to make our motions in limine a little easier.”
Defendant contends his jury trial waiver was invalid because he did not understand the nature of the right or the consequences of the waiver, and it was improperly induced by an implied promise from the court that he would receive a benefit if he waived jury trial. He is mistaken.
A.
“The Sixth Amendment, made applicable to the states in this context by the Fourteenth Amendment of the federal Constitution, confers upon a defendant in a criminal prosecution the right to a trial by jury. [Citation.]” (People v. Collins (2001) 26 Cal.4th 297, 304.) “Nonetheless, the practice of accepting a defendant’s waiver of the right to jury trial, common in both federal and state courts, clearly is constitutional. [Citation.]” (Id. at p. 305.) “To protect against inappropriate incursions on a defendant’s exercise or waiver of a fundamental constitutional right, such as that to jury trial, the federal Constitution long has been construed as requiring procedural safeguards, such as the requirement that a waiver of the right in question be made by the defendant personally and expressly. [Citations.]” (Id. at pp. 307-308.) The same holds true under the state Constitution. (Id. at p. 308.) “As with the waiver required of several other constitutional rights that long have been recognized as fundamental, a defendant’s waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, ‘“‘made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,’”’ as well as voluntary ‘“‘in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’”’ [Citations.]” (Id. at p. 305.)
The trial court does not have to elicit the reasons for a jury trial waiver when the defendant, represented by competent counsel, appears to make an intelligent, knowing and voluntary waiver of his right to a jury trial on the record, and indicates he has no questions or need to discuss the matter with counsel. (See People v. Diaz (1992) 3 Cal.4th 495, 571.) An appellate court will not reverse a jury trial waiver that otherwise appears voluntary, knowing, and intelligent based on the defendant’s posttrial assertion he or she did not understand some aspect of a jury trial. (See id. at pp. 570-571.)
Defendant claims his statement that the jury trial waiver would be “good” for him demonstrates he did not understand the consequences of the waiver. He argues a bench trial could not benefit him because his only hope was to discredit the victims before the jury. Noting that both victims were prostitutes with prior convictions for crimes involving moral turpitude, and that C.R. lied to the authorities and made prior inconsistent statements in the preliminary hearing, defendant asserts his potentially strong attack on their credibility was effectively wasted by opting for a bench trial.
Defendant has presented no evidence in the record or authority supporting his contention that a judge or jury will treat impeaching evidence differently, or that one or the other is more inclined to favor the accused. Without more, we will not second-guess defendant’s decision, made in consultation with trial counsel, to waive his right to a jury trial.
The court explained the right to a jury trial and the consequences of a waiver to defendant. Defendant clearly and unequivocally expressed his desire to waive his right to a jury and trial counsel agreed with his decision. These circumstances establish his waiver was knowing. (People v. Smith (2003) 110 Cal.App.4th 492, 502; see also People v. Panizzon (1996) 13 Cal.4th 68, 83-84.)
B.
It is settled that the waiver of a jury trial is involuntary if a trial court induces the waiver by promising “some benefit” to the defendant. (People v. Collins, supra, 26 Cal.4th at p. 300.) Defendant claims the court’s statement before the waiver that the decision on whether to have a jury trial would “have some bearing on [the in limine] motions,” and its statement after the waiver: “All right. Well, this is going to make some of our motions in limine a little easier,” show an implied promise of favorable rulings, which improperly induced the waiver.
When defendant gave his waiver the court was considering in limine motions by both parties addressing defendant’s criminal history, the admissibility of the 911 tape, the victims’ criminal and sexual history, defendant’s statement to law enforcement, and his in-custody status when he gave the statement. The court’s statements were no more than commonsense observations that a jury trial waiver would simplify some of its rulings on the pending motions. No reasonable person would take the court’s statements to imply a promise of some benefit if defendant waived his right to a jury trial.
II.
Defendant next argues his conviction for false imprisonment against C.R. (count seven) is not supported by substantial evidence. He is wrong.
In considering a sufficiency of the evidence claim, we view the evidence in the light most favorable to the judgment, presume in support of the judgment every fact which may be reasonably deduced from the evidence, and “determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 510; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) False imprisonment requires some restraint of the person. Any exercise of force, or express or implied threat of force, by which a person is deprived of liberty or compelled to remain where he or she does not wish to remain, is an imprisonment. The imprisonment may be committed by acts or words, or both, or by merely operating upon the will of the individual. (People v. Agnew (1940) 16 Cal.2d 655, 659-660.)
While C.R. was initially a willing passenger of defendant, she did not want to be in the car by the time he raped her. C.R. testified that after the rape she was afraid to leave because defendant had a gun nearby. She left only after defendant told her to leave.
C.R.’s testimony is substantial evidence that defendant held her against her will through the threat of his gun as he continued to drive after the rape. His claim that she was not transported against her will “before, during and after” the rape is without merit.
III.
Defendant asserts he cannot be convicted of both the forcible rape of C.R. (count nine) and false imprisonment (count seven), as false imprisonment is a lesser included offense of forcible rape. Not so.
A defendant cannot stand convicted of both a greater and a lesser included offense for a single act or course of conduct. (People v. Ortega (1998) 19 Cal.4th 686, 692.) “In deciding whether multiple conviction is proper, a court should consider only the statutory elements.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Under the elements test, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288.)
Under this test, false imprisonment is not a lesser included offense within the crime of rape. Forcible rape is sexual penetration, however slight, accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another. (§§ 261, subd. (a)(2), 263.) Forcible false imprisonment is the unlawful violation of the personal liberty of another effected by violence, menace, fraud, or deceit. (§§ 236, 237, subd. (a).) A person can be raped in a place where she has chosen to be and wishes to remain. A person can be raped in a place from which she cannot leave, such as in cases of lawful custody in jail or in a hospital. A person can be raped in a place from which she lacks the capacity to leave, such as in cases of an invalid or a person who has already been unlawfully restrained by another. False imprisonment may often accompany rape, but it is not essential to the offense and thus is not a lesser included offense for purposes of the rule advanced by defendant.
There is another reason to reject defendant’s claim. The rule against conviction on lesser included offenses only applies to multiple convictions arising from the same act or course of conduct. (People v. Ortega, supra, 19 Cal.4th at p. 692.) Defendant committed the crime of false imprisonment by keeping C.R. in the car against her will after the rape was complete. The rule against convicting on lesser and greater included offenses does not apply to this situation.
IV.
Pursuant to the one strike law (§ 667.61), the court sentenced defendant to consecutive 25-years-to-life terms for the two forcible rape convictions. When defendant asked if some of the enhancements could be taken off his sentence, the court replied: “No, no. I could have run maybe a couple of those concurrent, but the life sentences are required to run on top of each other.”
Defendant asserts this demonstrates the court did not understand its discretion to have the one strike sentences run concurrently.
Although section 667.61 mandates separate life terms for each offense, it does not mandate that the life terms be served consecutively. (People v. Rodriquez (2005) 130 Cal.App.4th 1257, 1261-1263.) Nevertheless, the version of section 667.6, subdivision (d), in effect at the time mandates that full-term consecutive sentences be imposed on convictions for forcible rape (§ 261, subd. (a)(2)) where the crimes were committed on separate victims or on the same victim on separate occasions. (Stats. 2002, ch. 787, § 16.)
As defendant’s two rapes were committed against separate victims and on separate occasions, the court correctly concluded it had no discretion to impose concurrent terms and imposed the consecutive sentences as mandated by law.
V.
Defendant was convicted of the aggravated kidnapping (§ 209, subd. (b) (count one)) and forcible rape (§ 261, subd. (a)(2) (count three)) of T.P. The court imposed a 25-years-to-life one strike sentence for count three, finding the single qualifying circumstance that defendant kidnapped the victim, increasing the risk inherent in the underlying offense. (§ 667.61, subd. (d)(2).)
Pursuant to section 209, subdivision (b)(1), the court imposed a life term for the aggravated kidnapping conviction (count one), but stayed the sentence pursuant to section 654. However, the abstract states the aggravated kidnapping sentence is consecutive to the other terms. Defendant contends section 209, subdivision (d), precluded the court from imposing the life term for aggravated kidnapping. The Attorney General argues it is unnecessary to reach this contention, as we can remedy the matter by ordering the abstract corrected to reflect the stayed sentence.
At the time of the offenses, former section 209, subdivision (b), provided for a life term if the defendant kidnaps for the purpose of committing rape and the kidnapping increases the risk inherent in the underlying offense. Subdivision (d) stated: “Subdivision (b) shall not be construed to supersede or affect Section 667.61. A person may be charged with a violation of subdivision (b) and Section 667.61. However, a person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61.” (Stats. 2000, ch. 287, § 3.) Since the aggravated kidnapping was used to sentence defendant under the one strike law, the court could not also impose a life term for aggravated kidnapping under section 209.
Subdivision (d) of section 209 does not provide for an alternative sentence if the life term cannot be imposed. Defendant asserts he must be sentenced under the provision setting the punishment for simple kidnapping, section 208.
In construing a statute, we begin by examining the statute’s language, giving the words their ordinary meaning. If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We also generally avoid an interpretation that renders any portion of the statute superfluous, unnecessary, or a nullity because we presume that the Legislature does not engage in idle acts. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634.)
Simple kidnapping is a lesser included offense of aggravated kidnapping with a commensurately lower punishment. Although aggravated kidnapping was once part of section 208, it has always been considered a separate crime from simple kidnapping. (People v. Rayford (1994) 9 Cal.4th 1, 8-11.)
Section 208 sets the punishment for simple kidnapping at three, five, or eight years. (§ 208, subd. (a).)
Accepting defendant’s argument would reduce his liability to a lesser offense even though substantial evidence supports his aggravated kidnapping conviction. Subdivision (d) of former section 209 addresses only whether a defendant can be “punished” under former section 209, subdivision (b); it does not define the substantive offense of aggravated kidnapping or mandate reducing an aggravated kidnapping conviction to a lesser offense. Defendant’s argument would invoke subdivision (d) to effectively nullify his aggravated kidnapping conviction, a result the Legislature could not have intended.
The best interpretation is to read subdivision (d) of former section 209 to require the court to impose and stay execution of the life sentence. This is consistent with the statutory language, as defendant will not be punished by the stayed term.
We conclude the court correctly imposed and stayed the life term for aggravated kidnapping. The abstract of judgment, which shows this as a consecutive term, must be corrected to reflect the oral pronouncement of judgment. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement controls]; People v. Mitchell (2001) 26 Cal.4th 181, 186-187 [appellate court may correct clerical errors on its own motion or upon application of the parties].)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the sentence for violation of Penal Code section 209, subdivision (b) (count one), is stayed. The court is further directed to send a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
We concur: RAYE, J., CANTIL-SAKAUYE, J.