Opinion
No. A109515.
November 17, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Under California Rules of Court, rules 976(b) and 976.1, only the introductory paragraph, part I of the Discussion on pages 1157-1160, and the Disposition are certified for publication.
Superior Court of San Mateo County, Nos. SC53216 and SC53618, Craig L. Parsons.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Farooq A. Aleem appeals from convictions of multiple counts of sexual and related offenses against two young women, identified as Jane Doe 1 and Jane Doe 2. FACTS Defendant parked in a secluded area. He told her to take off her clothing, telling her he would kill her if she refused. When she refused, he pulled a knife out from under the seat and put it against her throat. He seemed very angry and threatening. Jane Doe 3 removed her clothing. Defendant took an identification card which had been in the pocket of her pants. At that point, he calmed down, and started talking about getting some alcohol, talking about having her steal some. Jane Doe 3 agreed. Defendant drove to a Safeway in Diamond Heights while Jane Doe 3 put her clothing back on. When they got to the Safeway, she ran to an employee, telling him to call the police. She then locked herself in the bathroom. Defendant banged on the door, but then left. Jane Doe 2 The charges involving Jane Doe 2 arose out of events taking place on December 19, 2002. Jane Doe 2 testified that she left her boyfriend's house at approximately 1:00 that morning. She took a bus, getting off at a transfer point. Defendant came by and offered her a ride. Jane Doe 2 got into the car. Another man also was in the car. Instead of taking Jane Doe 2 home, defendant drove over the Bay Bridge and then to Fairfield, asserting that they were going to a party. They went to a Fairfield residence, where two other people were present, playing video games. Defendant told her to sit down. A few minutes later defendant told her to follow him. Jane Doe 2 replied that she thought it would be better for her to stay where she was. Defendant, in a "stern voice" again told her to follow him. Jane Doe 2 followed him into a bathroom, where he told her to take off her clothing. She stated she did not want to do it, and he again demanded, in a louder voice, that she take her clothing off. Defendant then removed Doe 2's jacket, shirt and bra, and pulled down her pants and underpants. He made her sit on the toilet and demanded that she orally copulate him and physically forced her to do so, telling her, "Don't think that I won't hit you." She pulled away, but defendant made her resume the oral copulation. The victim stated that she was too frightened to scream. At some point, someone else knocked on the door of the bathroom. Defendant left, telling Jane Doe 2 to wait. Jane Doe 2 put her clothing back on. The other man from the car came in, holding a condom, asking "if he could. . . ." Jane Doe 2 refused, and asked him to take her home. He replied that he would have to check with his brother. They left the bathroom, going to another room where defendant joined them, motioning that they should leave and telling the victim, "Let's go." Jane Doe 2 hesitated, causing defendant to tell her again to leave, using a sterner tone of voice. Defendant and Jane Doe 2 got into the car. By this time, defendant had taken her wallet and cell phone. They drove back to San Francisco. During the drive, defendant tried to force her to orally copulate him. She resisted, and he stopped. During the drive, defendant also used what the victim believed was crystal methamphetamine. Defendant stopped at a toll booth. The victim did not attempt to jump out, explaining later that she had been too scared to realize anything at that moment. Defendant drove to a parking lot on Twin Peaks in San Francisco. He removed the victim's clothing and again directed her to orally copulate him. When she refused, he reached back behind his seat, telling her, "Don't think I won't pull out my gun and shoot you." Jane Doe 2 testified that she was in fear for her life, and hoped that if she complied with defendant's demands he would take her home. She stopped after a minute, but defendant demanded that she continue, pushing her head onto his penis. Another car arrived. Defendant left, driving to a residential neighborhood in Bernal Heights, allowing the victim to dress during the drive. The victim asked him to take her home, but he refused and again forced her to orally copulate him until he ejaculated. The victim testified that defendant also digitally penetrated her at each San Francisco location. Defendant then drove Jane Doe 2 to a location near her home. He gave her back her wallet and cell phone, after obtaining her telephone number. She thought that he would let her leave if she gave him her number. Defendant let Jane Doe 2 get out of the car and she walked home. She did not report the events to the police for approximately one month, when she did so at the urging of friends. Jane Doe 1 The charges involving Jane Doe 1 arose out of events taking place on January 14, 2003. According to the victim, defendant approached her while she was waiting at a bus stop in San Francisco, sometime after midnight. Defendant invited her to smoke some marijuana with him and another man who was in his car. Jane Doe 1 got into the car. They drove around, smoking marijuana and sniffing cocaine. Defendant told her he would drive her home, but instead drove to a motel in Daly City. Jane Doe 1 stated that she had difficulty remembering everything. She didn't want to remember and had blocked the events out of her mind. In addition, the drugs made her feel drowsy and nauseous and delirious. She didn't believe she could get away from the men and went with them to the motel room. Defendant kissed her. He pushed her down and felt her body over her clothing. Defendant told her to take a shower. He came in while she was showering and pressed his penis against her vagina. The victim testified she couldn't remember what else happened while they were in the bathroom. When she was interviewed by the police later that day, however, she stated that defendant forced her to copulate him orally after the shower. She testified that although she had blocked out the events of the night, she knew she had answered the detective's questions truthfully. At some point Jane Doe 1 was able to get dressed. She tried to leave the motel room, but defendant stepped in front of the door, saying, "You don't want to do that." He told her, "If you walk out the door, I'm going to fuck you up." Jane Doe 1 sat back down in a chair. She tried to leave, but defendant grabbed her arm. She testified that they all stayed calm for a while and then they headed back out. She could not remember if defendant said anything to her, but when she asked him to take her home, he told her, "You haven't finished your job yet. You need to finish what you started." They got back into the car. Defendant drove to Diamond Heights. His companion tried to touch Jane Doe 1 during the drive, but she would not allow it and he slapped her in the face, telling her, "You shouldn't be acting like this because something bad is going to happen to you." At Diamond Heights, defendant threatened Jane Doe 1 that if she kept resisting they would have to beat her. He ordered her to get into the passenger seat. The passenger and Jane Doe 1 changed seats. Defendant ordered her to orally copulate him. The victim testified that when she refused, he told her, "You better." She stopped trying to fight. He forced her head down onto his penis, slapping her at some point. She told the police that defendant pulled her head down onto his penis, grabbing her hair. She tried to pinch him and he hit her on the head to make her stop. She tried to get away but he forced her back. Defendant put his finger into her vagina. Defendant ejaculated into the victim's mouth. He then drove her to a gas station and dropped her off, telling her that if she told anyone he would kill her. Defendant also wrote a telephone number on a piece of paper, which he gave to the victim. Jane Doe 1 walked home, where she told her mother what had happened. Her mother called the police. Jane Doe 1 was examined by a nurse practitioner, who testified that Jane Doe 1 told her that defendant had offered her a ride, drove her to Twin Peaks, then to a hotel. He took her into the bathroom, kissed her neck and forced her into an act of oral copulation. He then drove her to Diamond Heights, where he grabbed her hair and forced her down on his penis again, ejaculating into her mouth. He put his finger into her vagina and touched his penis to her vagina. A second man, who she said was named "Dog," fondled her over her clothes and slapped her twice in the face. Jane Doe 1 told the nurse that she had not engaged in any voluntary drug use within the 96 hours preceding the assault, but had sniffed white powder involuntarily. The nurse found evidence of blunt trauma from something hitting the back of the victim's throat. There was evidence of some minor injury to the victim's vagina. The police contacted the manager of the motel, asking that he call them if defendant returned. On January 17, 2003, defendant went back to the motel and the manager called the police. They found defendant and a woman in the room. Defendant had a baggie of marijuana and a cigarette containing cocaine on his person. The police found another baggie of marijuana in defendant's car. Verdict The jury convicted defendant of a number of counts involving both victims or related to crimes against those victims. The court sentenced defendant to an indeterminate term of 65 years to life under the "one-strike" law (Pen Code, § 667.61), comprised of two consecutive 25-year-to-life terms and a consecutive 15-year-to-life term. It further imposed a determinate term of 16 years on the remaining counts, to be served consecutively to the indeterminate term.
Defendant also was charged with offenses against a third young woman, Jane Doe 3, but the jury hung on all charges involving her, except for a charge of assault to commit oral copulation, on which they returned a verdict of not guilty. The court declared a mistrial as to the other charges.
See footnote, ante, page 1155.
The jury convicted defendant of four counts of oral copulation by force or fear (Pen. Code, § 288a, subd. (c)(2); one count of false imprisonment by means of force or fear (Pen. Code, § 236); one count of attempted sexual battery (Pen. Code, § 209, subd. (b)(1); one count of preventing or dissuading a witness by threat of force or violence (Pen. Code, § 136.1. subd. (c)(1); two counts of criminal threats (Pen. Code, § 422), one count of sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1), and one count of sexual battery (Pen. Code, § 243.4, subd. (a).)
All statutory references are to the Penal Code.
DISCUSSION I. Venue
The charges relating to Jane Doe 1 arose out of conduct occurring in San Francisco and San Mateo Counties. The charges relating to Jane Doe 2 arose out of conduct occurring in San Francisco, Alameda and Solano Counties. Penal Code section 777 provides that when a crime is committed within a particular county, venue lies in that county. ( People v. Posey (2004) 32 Cal.4th 193, 209 [ 8 Cal.Rptr.3d 551, 82 P.3d 755].) Section 781 states that where a crime is committed partly in one county and partly in another, or when the acts or effects constituting the crime or requisite to its commission occur in more than one county, venue lies in each of the counties in question. ( 32 Cal.4th at p. 209.) San Mateo, therefore, was a proper venue for the crimes committed in San Mateo County and for any crime partly committed in San Mateo and partly in San Francisco, or where the acts or effects of a crime committed in San Francisco occurred in San Mateo. San Francisco was a proper venue for the crimes allegedly committed in San Francisco and also for any crimes partly committed in San Francisco or where the acts or effects of the crimes occurred in San Francisco, even if the crimes were partly or even wholly committed in San Mateo, Alameda or Solano Counties. Similarly, Solano and Alameda Counties were proper venues for crimes committed in San Francisco where the acts or effects of the San Francisco crimes occurred in Solano or Alameda County. In addition, section 784 provides that for the crime of kidnapping, venue is proper in the county where the offense was committed, or where the victim was taken, or where an act was done by the defendant in instigating, procuring, promoting or aiding in the commission of the offense or in abetting the concerned parties. San Francisco, Alameda and Solano Counties, therefore, were proper venues for the charges involving the kidnapping of Jane Doe 2.
All statutory references are to the Penal Code.
Section 784 provides that jurisdiction for kidnapping "[i]s in any competent court within the jurisdictional territory in which the offense was committed, or in the jurisdictional territory out of which the person upon whom the offense was committed was taken or within the jurisdictional territory in which an act was done by the defendant in instigating, procuring, promoting, or aiding in the commission of the offense, or in abetting the parties concerned therein."
On July 15, 2003, pursuant to section 954, the San Mateo District Attorney moved to consolidate all the crimes for purposes of prosecuting them in San Mateo. The motion was supported, in part, with a letter from the San Francisco District Attorney agreeing that defendant might be prosecuted in San Mateo for the crimes subject to prosecution in San Francisco.
Section 954 allows the trial court to consolidate related offenses so that they may be tried in one proceeding, or to order the offenses be tried separately.
Defendant did not object to consolidation. On September 15, 2004, how-ever, approximately one month before trial, defendant moved to dismiss any charges for crimes where either Solano or Alameda provided a proper venue, contending that those crimes could not be prosecuted in San Mateo in the absence of written consent from the Solano and Alameda County District Attorneys. The court ultimately dismissed six counts relating to crimes committed outside of San Mateo or San Francisco, but allowed trial to go forward on four counts based on conduct committed partly in San Francisco, reasoning that because the cases could be tried in San Francisco, the San Francisco District Attorney could agree to have the matters tried in San Mateo. Defendant was convicted of two of those counts: counts 17 and 18, each charging him with violating section 288a, forcible oral copulation, involving Jane Doe 2. Both crimes were committed in San Francisco, but each charged count included an allegation of kidnapping that allegedly began in Solano County, continued through Alameda County and ended when defendant released the victim back in San Francisco County. Defendant contends that his convictions of those crimes must be reversed because they were tried in San Mateo without the written agreements of the Solano and Alameda County District Attorneys.
The counts originally were numbered differently, but ultimately were charged as counts 17 and 18 in an amended information.
Defendant cites section 784.7, which provides in relevant part: "(a) When more than one violation of [specified sex offenses] occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present evidence in writing that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions where there is no written agreement from the district attorney shall be returned to that jurisdiction." Defendant's position is that notwithstanding that the crimes in question were committed in San Francisco, because section 781 expands venue so that the crimes might also have been tried in either Alameda or Solano Counties, section 784.7 acts to limit the power of San Francisco's District Attorney to agree to having the crimes tried in San Mateo. This interpretation of section 784.7 is wholly inconsistent with its purpose, which is "to permit offenses occurring in different counties to be consolidated so that a victim may be spared having to testify in multiple trials in different counties." ( People v. Betts, supra, 34 Cal.4th at p. 1059 fn. 15; see also Price v. Superior Court, supra, 25 Cal.4th at p. 1055.) In addition, such an interpretation would require San Mateo to "return" the case to both Alameda and Solano if those counties fail to agree to venue even though the crimes in question were committed in San Francisco. Indeed, under defendant's interpretation of section 784.7, the crimes couldn't be tried in San Francisco without the written agreement of Alameda and Solano, creating the possibility that the crimes couldn't be tried at all. We decline to give the statute a construction that subverts the intent of the Legislature. (See People v. Cottle (2006) 39 Cal.4th 246, 254 [ 46 Cal.Rptr.3d 86, 138 P.3d 230].) We find, therefore, that section 784.7 requires only that if no other statute authorizes trial in a particular jurisdiction, the case can be tried there by agreement of the district attorney of any jurisdiction providing an appropriate venue. As San Francisco provided an appropriate venue, it was enough that San Francisco agreed that the crimes might be tried in San Mateo.
For purposes of the venue statutes, the terms "jurisdiction" and "jurisdictional territory" refer to the place or places appropriate for a defendant's trial. Venue does not implicate the trial court's fundamental jurisdiction in the sense of either personal or subject matter jurisdiction. ( People v. Betts (2005) 34 Cal.4th 1039, 1049 [ 23 Cal.Rptr.3d 138, 103 P.3d 883]; People v. Posey, supra, 32 Cal.4th at pp. 207-208; Price v. Superior Court (2001) 25 Cal.4th 1046, 1054 [ 108 Cal.Rptr.2d 409, 25 P.3d 618].)
As explained in Price v. Superior Court, supra, 25 Cal.4th at pages 1055-1056, "Section 784.7 was enacted to protect repeat victims of child abuse or molestation and victims of domestic violence, offenses that are often inflicted on the same victim by the same perpetrator, from the need to make multiple court appearances to testify against the perpetrator and to reduce costs of separate trials. A Senate floor analysis by the Senate Rules Committee regarding the measure, which originated as Assembly Bill 2734, offered the author's statement of the purpose of the bill:
"`[Assembly Bill] 2734 seeks to provide for the ability to combine trials when the victim and the defendant are the same for all the offenses. In crimes of domestic violence and child abuse or molestation, there is a high degree of mobility. The first offense may happen in one county, and then the victim moves to another county. The defendant follows them and commits the same crime again. Because of the repeat offenses, the victim is faced with the possibility of multiple trials.
"`[Assembly Bill] 2734 would allow the trials to be combined when the defendant, victim and crime are the same. This will save the victim from testifying in the multiple trials over several years. Additionally, this will provide a cost savings to the trial court system by reducing the number of trials.' (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 2734, as amended June 15, 1998.)"
The People also raise the issue of the timeliness of defendant's complaint about venue. A defendant's right to be tried in a venue authorized by statute is a right subject to waiver by the defendant. ( People v. Simon (2001) 25 Cal.4th 1082, 1097 [ 108 Cal.Rptr.2d 385, 25 P.3d 598].) In Simon, the court, after a thorough analysis of existing law, held, "taking into account the nature and purpose of the venue safeguard and the substantial state interest in protecting the integrity of the process from improper `sandbagging' by a defendant, we conclude that a defendant who fails to raise a timely objection to venue in a felony proceeding forfeits the right to object to venue — either at trial or on appeal." ( Id. at p. 1104.) The court later held that a defendant who fails to raise an objection to venue prior to trial ordinarily will be deemed to have forfeited such a claim. ( Id. at p. 1108.) Here, defendant had every chance to object to venue at the section 954 hearing, but did not raise the issue until over a year later. He did, however, raise the point prior to trial. As we conclude that defendant's interpretation of section 784.7 is incorrect, we need not decide whether he has forfeited the right to object to venue by failing to raise the issue at the section 954 hearing.
II.
Failure to Object to Interview with Jane Doe 1 Defendant complains that the jury was permitted to hear evidence of Jane Doe 1's statements to the police and to a nurse practitioner, asserting that because Jane Doe 1 testified she could not recall many of the details of the night in question, her earlier statements provided the only evidence of several of the alleged crimes. Defendant contends that trial counsel's failure to object to this evidence denied him the effective assistance of counsel, requiring reversal. A defendant making a claim of the ineffective assistance of counsel bears the burden of demonstrating counsel's acts or omissions fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. ( People v. Weaver (2001) 26 Cal.4th 876, 955.) "Further, once defendant has met his burden, the reviewing court must examine the record to determine if it contains any explanation for counsel's conduct. If such an explanation is apparent from the record and it is evident that `counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.'" ( People v. Moore (1988) 47 Cal.3d 63, 82.) "If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." ( People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Finally, we will not ordinarily second-guess trial counsel's tactical decisions if we find those decisions to have been made on an informed basis. ( People v. Moore, supra, at p. 82.) Here, trial counsel stipulated to the introduction of the statement made to the police — strongly suggesting an affirmative desire to have the jury hear it. Counsel then used the statements to support the argument that Jane Doe 1 consented to defendant's actions, or at least defendant held an honest belief that she was consenting. Counsel pointed out Jane Doe 1 had been smoking marijuana before she met up with defendant and used both cocaine and marijuana while in the car. Counsel argued Jane Doe 1 was not at all afraid of defendant, but went with him out of the desire to obtain drugs, suggesting any later "recollection" of force or fear was manufactured and not real. In support of that argument, counsel contrasted Jane Doe 1's court testimony with her statement to the police. "So what did she say in court? In court she testified that she was scared when they got to the motel room, and she didn't know what to do. What did she tell the detective? `I was okay. He didn't threaten me. I walked in there. It wasn't a problem.'" Counsel asserted that Jane Doe 1 did not seem to be very upset on the taped interview. "It was no big deal. She wasn't upset. There [were] some sniffles. Probably due to the ingestion of cocaine or a cold, but I didn't hear any crying. I didn't hear any trauma." Counsel emphasized that at the end of the taped interview, Jane Doe 1 stated, "I really wouldn't have tripped over it if he wouldn't have threatened me." Counsel pointed out that the detective then told her that she was the victim, arguing the detective, whether or not intentionally, persuaded her to say that she had been forced into the acts. The record accordingly reflects that counsel made an informed tactical choice to use the statement to support the defense position. That choice was well within the range of "reasonable competence." Similarly, counsel attacked Jane Doe 1's credibility by pointing out that her statement to the nurse practitioner was inconsistent with her other statements. He also used those inconsistencies to argue that the victim's misrepresentations to the nurse predisposed the nurse to believe a sexual assault had occurred. The record therefore again reflects that the failure to object to the nurse's statement was the result of a reasoned choice.
Counsel argued: "And then [after the victim's statement that she would not have `tripped' but for defendant's threats] you hear [the detective] saying, `Look, you didn't do anything wrong. It's him. He's the one who forced it. He's the one who grabbed you. You're the victim here. Are you the victim here? Did he do it this way?' And he just goes after her. `You're the victim. You did it. They did these things. They all did it.' I'm not saying he did this intentionally. I'm not saying he did it in an attempt to change her testimony, but it had that effect. It wasn't a neutral investigation. When she was asked — he was asking her questions. He wasn't asking her questions on the tape of, `So what type of voice did he say when he said this? What did he do when he grabbed you? Describe the force he used to pull you to the bed.' Instead, `Did he yank you down? Did he threaten you? Was it a threatening type of voice?' He asked leading questions because he goes in with an inherent bias."
As we find that counsel's failure to object was the result of a reasonable, tactical choice, we need not consider whether the statements might have been admissible as exceptions to the hearsay rule either as prior inconsistent statements (Evid. Code, § 1235) or past recollection recorded (Evid. Code, § 1237).
III.
Evidence of Physical Force or Fear in Kidnapping in Connection with Charge of Forcible Oral Copulation Section 667.61 (the "one-strike law"), subdivisions (a) and (d)(2) provide for a 25-year enhancement for committing forcible oral copulation (§ 288a, subd. (c)(2)) where the "defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense." Section 667.61, subdivisions (b) and (e)(1) create a 15-year enhancement where the defendant kidnapped the victim "[e]xcept as provided by paragraph (2) of subdivision (d). . . ." Counts 17 and 18 charged defendant with forcible oral copulation of Jane Doe 2. It was alleged that defendant was a person described by section 667.61, subdivision (e)(1) (the 15-year enhancement) in connection with count 7 and also with counts 17 and 18. It also was alleged that defendant was a person described by section 667.61, subdivision (d)(2) (the 25-year-to-life enhancement) in connection with counts 17 and 18. The jury found true that defendant had kidnapped Jane Doe 2 within the meaning of section 667.61, subdivision (d)(2) in connection with counts 17 and 18. The court therefore sentenced defendant to two 25-year-to-life terms. Defendant contends that the evidence does not support the jury's finding the truth of the section 667.61, subdivision (d)(2) allegations in connection with counts 17 and 18 — forcible oral copulation of Jane Doe 2 in San Francisco, after defendant transported her there from Fairfield. The contention is based on defendant's assertion that there is no evidence he used physical force to move the victim from Fairfield to San Francisco. Defendant does not dispute that kidnapping can be accomplished by some means other than by force, such as by instilling fear in the victim. He also does not dispute that the enhancing allegations of section 667.61, subdivision (d)(2) are satisfied by simple kidnapping, and concedes, as he must, that "there may have been sufficient evidence that [the victim] was moved against her will based on a reasonable apprehension of harm." Defendant claims, however, that the jury was instructed it could find the allegations of section 667.61, subdivision (d)(2) true only by finding the kidnapping was accomplished by physical force. As, in defendant's opinion, there was no evidence of physical force, it follows that he was convicted on insufficient evidence. Defendant cites instructions given the jury in connection with charges of kidnapping of different victims. Count 6 charged defendant with violating section 209: kidnapping Jane Doe 1 for purposes of committing oral copulation or rape ("aggravated kidnapping"). Count 20 charged defendant with the same offense regarding Jane Doe 3. As to those charges, the jury was instructed, "Kidnapping is the unlawful movement by physical force of a person without that person's consent. . . ." But the jury also was instructed that kidnapping, "a violation of Penal Code section 207, a crime, is a lesser included offense of Count 6 and Count 20. Kidnapping within the meaning of the special allegations pursuant to Penal Code section 667.61(e)(1) with Counts 7, 17 and 18 is as follows: [¶] Every person who unlawfully and with physical force or by any other means of instilling fear, steals or takes, or holds, detains or arrests another person and carries that person without her consent, compels any other person without her consent and because of a reasonable apprehension of harm, to move for a distance that is substantial in character, is guilty of the crime of kidnapping in violation of Penal Code section 207, subdivision (a). [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was moved by the use of physical force, or by any other means of instilling fear. . . ." (Italics added.) It is true that the instruction mentioned section 667.61, subdivision (e)(1), and did not specifically mention subdivision (d)(2). We see no reason to assume from this that the jury would have understood that the instruction did not define kidnapping for purposes of subdivision (d)(2), but instead would have adopted the definition included as part of the instruction on the separate crime of aggravated kidnapping. Defendant asserts that section 209 and section 667.61, subdivision (d)(2), state aggravated forms of kidnapping so that the jury must have grafted the instruction for section 209 onto section 667.61, subdivision (d)(2), instead of the "simple kidnapping" definition given in connection with subdivision (e)(1). Section 667.61, however, itself distinguishes between the "simple kidnapping" of subdivision (e)(1) and the "aggravated kidnapping" of subdivision (d)(2). As the jury was instructed, subdivision (d)(2) adds the element that the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the underlying offense. In addition, the prosecutor, in closing argument, explained to the jury that the elements of kidnapping, including movement of the victim by "the use of physical force or by any other means of instilling fear" applied to the special allegations of counts 17 and 18. In sum, we conclude that there is no reasonable possibility that the jury misunderstood the requirements of section 667.61. It is even less likely that the jury, had it been misled into believing that it had to find physical force, found the existence of physical force even though, according to defendant, there was no evidence of physical force. And finally, on this record, it is inconceivable that the jury, finding (as defendant suggests) that the victim was moved by physical force, would not have found that she was moved by some means of instilling fear. In sum, defendant suffered no prejudice as a result of the instruction.IV.
See footnote, ante, page 1155.
V.
Aggravated Kidnapping Defendant contends that there is insufficient evidence to support his conviction of count 6, kidnapping Jane Doe 1 for the purpose of committing oral copulation (§ 209). He points out that, like the allegations of section 667.61, the offense of kidnapping for purposes of committing oral copulation requires a finding that the movement of the victim increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. (§ 209, subd. (b)(2).) The charge at issue referred to the forcible oral copulation occurring after defendant drove Jane Doe 1 from the San Mateo motel room to Diamond Heights. Defendant again contends that the movement actually increased the likelihood of detection and reduced his opportunity to commit additional crimes. As discussed previously, simply moving the victim from one place to another by automobile exposed her to the possibility of an accident or to injury, including injury resulting from an attempt to escape from the car. While it appears that Jane Doe 1 made no attempt to elicit help from the motel clerk, there was at least one person at the motel — the clerk — who could have been a source of help. According to the victim, there was no one at the Diamond Heights location. In addition, it appears that defendant took his victims to deserted public places for the specific reason of sexually assaulting them. While defendant assaulted Jane Doe 1 in the motel room, he also allowed her to get dressed again — a course of conduct inconsistent with the idea that he intended to assault her again at that location. The jury reasonably could conclude that moving Jane Doe 1 to Diamond Heights increased the risk of an additional assault. The evidentiary requirement was met.
VI.
Section 654 and Counts 1 and 9 Section 654 prohibits punishing a defendant more than once for the same act or omission whether or not the offense is punishable in different ways by different provisions. Defendant complains that the court violated section 654 by imposing separate terms for his conviction of criminal threats as alleged in count 9, and for his conviction of false imprisonment as alleged in count 1, which required a finding that he had willfully and unlawfully violated the personal liberty of the victim by means of violence, menace, fraud or deceit. (§§ 236 237, subd. (a).) Each count involved Jane Doe 1, and, according to defendant, each was based on defendant's statement that he would "fuck her up" or "knock her out" if she tried to leave the motel room. Defendant points out that although he had been charged with making two criminal threats, the jury returned a guilty verdict only as to one of those charges. It follows, in defendant's opinion, the jury must have concluded that defendant committed the false imprisonment by means of the same threat that formed the basis of the sustained charge of criminal threats. The contention assumes that the threat was the only thing that violated the victim's personal liberty. The evidence, however, is consistent with the conclusion that defendant, by means of menace, effectively imprisoned the victim in the motel room long before he made the specific threat in question. While the prosecutor reminded the jury of defendant's verbal threat when she argued he was guilty of false imprisonment, it does not follow the jury was unaware of other conduct of menace or violence or based its finding on a single threat. In addition, in context, the argument encompassed more than the single threat. The prosecutor stated, "In Count One of the Information, the defendant is charged with false imprisonment. This is against Jane Doe No. 1. . . . And in order to find him guilty of this crime, the People have to prove these three elements, that the defendant restrained, confined or detained Jane Doe, and that the confinement or restraint or detention was against her will, she did not consent to it, and that it was accomplished by violence or menace. . . . [¶] Ladies and Gentlemen, Jane Doe No. 1 testified that the defendant would not let her go. She tried to leave twice, she was already confined or restrained or detained in that motel room after not wanting to be there. It was clearly against her will. And that he accomplished it by threatening violence, an express word, `I'm going to knock you out.' This was clearly committed by violence." (Italics added.) Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination and whose findings will not be reversed on appeal if there is substantial evidence to support them. ( People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The evidence supports the trial court's finding that the crime of false imprisonment was accomplished by acts different from defendant's specific threat. As we find that the charges were supported by different acts, we need not and do not consider the Attorney General's argument that section 654 allows the same act to be punished in different ways if the defendant operated with more than one objective.
VII.
Section 654 and Counts 7 and 13 Defendant also complains that the court violated section 654 when it imposed separate terms for his convictions of criminal threats as alleged in count 13 and for forcible oral copulation as alleged in count 7. Each count involved conduct in connection with Jane Doe 1 at the Diamond Heights location. The evidence is that defendant threatened the victim that she risked being beaten if she kept resisting. He then ordered her to get into the front seat of the car, after which he ordered her to orally copulate him, forcing her head down onto her penis, pulling on her hair, slapping or hitting her on the head when she tried to pull away and physically forcing her to continue. In defendant's view, he accomplished the oral copulation by threatening the victim that if she continued to resist he would have to beat her. He argues that he cannot be punished separately for the threat because the threat was the means of accomplishing the forcible oral copulation. Section 654 literally applies only when punishment arises out of multiple statutory violations produced by the same act or omissions. Because the statute is intended to ensure punishment commensurate with culpability, however, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. ( People v. Harrison (1989) 48 Cal.3d 321, 335.) "It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored `multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, `even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" ( Ibid.) Here, while it can be assumed that defendant threatened the victim, in part, to get her to commit an act of oral copulation, the evidence supports a finding that defendant's many acts and words of intimidation were intended to gratify defendant's wish to exert dominance over the victim, to make her afraid, to force her to do whatever he said or to prevent her from trying to escape. The oral copulation was accomplished by a separate act of physical force. Section 654 was not violated.
The victim told the police, "So then we go out to Diamond Heights. [¶] . . . [¶] . . . And then he's telling me that I have to finish my job and stuff. [¶] . . . [¶] So he tells his friend to change with me seats and all of, sorry, sorry. Um, before that he was telling me um, that if I kept, if I kept, um, resisting that they were gonna have to, instead of them doing me a favor they were gonna have to beat me and stuff."
VIII.
Crimes Charged in Counts 17 and 18 as Crimes Committed On More Than a Single Occasion At the time of defendant's crimes, section 667.61, subdivision (g) provided that the enhanced term required by the section "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." The court sentenced defendant to two life terms under the section: one for the oral copulation alleged in count 17 and a second term for the oral copulation alleged in count 18. Defendant contends that imposing two terms was error, asserting that both crimes occurred during a single occasion for purposes of sentencing under section 667.61. The court in People v. Jones (2001) 25 Cal.4th 98 ( Jones) considered what comprises a single occasion under section 667.61, subdivision (g). The defendant in that case committed a series of forcible sexual acts on the victim over a period of approximately two hours. ( Id. at p. 101.) All acts were committed in the backseat of a car and the only breaks in time between acts appeared to be those necessary to move the victim into a different position so that the defendant might engage in the next act. ( Ibid.) The Supreme Court recognized that in a different statute, section 667.6, subdivision (d), requiring consecutive terms for sex crimes committed on separate occasions, the Legislature has directed courts to 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." (§ 667.6, subd. (d); Jones, supra, at p. 104.) The court pointed out that the Legislature could have, but did not, use the same statutory language in section 667.61, subdivision (g). ( Id. at p. 105.) For that reason, and because of other inconsistencies in the statutes and the harshness of the punishment dictated by section 667.61, the court concluded, "for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a `single occasion' if they were committed in close temporal and spatial proximity." ( Id. at p. 107.) The Legislature has responded by amending section 667.61 so that it now expressly incorporates the language of section 667.6, subdivision (d). (§ 667.61, subd. (i).) Defendant, however, was sentenced under the earlier version of the law, and we therefore consider whether the evidence supports the trial court's conclusion that the crimes charged in counts 17 and 18 were not committed in close temporal and spatial proximity. Count 17 charged the oral copulation occurring in the deserted parking lot on Twin Peaks after defendant drove Jane Doe 2 back to San Francisco from Fairfield. Defendant stopped, apparently because another car had driven up. He drove off, allowing the victim to put her clothing back on. Defendant drove to a second location, the residential neighborhood in Bernal Heights, where he again forced the victim to orally copulate him while he digitally penetrated her. Although, as defendant emphasizes, both acts of oral copulation took place in defendant's car, they took place at two separate locations. Defendant estimates that it took between eight and 15 minutes to drive from one location to the other, and, as noted, the victim was undressed at one location but clothed at the other. This was not an uninterrupted series of sex crimes such as those at issue in Jones, supra, 25 Cal.4th 98, but two crimes separated by time and space. The trial court properly sentenced defendant to two terms.
That provision has been carried over into the revised section 667.1, and now appears in subdivision (i). (See Stats. 2006, ch. 337, § 33, eff. Sept. 20, 2006.)
IX.
Restitution to Jane Doe 3 Defendant complains that he was ordered to pay restitution to Jane Doe 3 when he was acquitted of any charges involving her. The Attorney General concedes the error.
DISPOSITION
The judgment is modified to strike the order that defendant pay restitution to Jane Doe 3. In all other respects the judgment is affirmed.Swager, J., and Margulies, J., concurred.
A petition for a rehearing was denied December 13, 2006, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied March 14, 2007, S149176.