Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F05419
BUTZ, J.A jury convicted defendant Samuel Santiago Arciniega, Jr., of five counts of forcible rape (Pen. Code, § 261, subd. (a)(2); counts one through five), and counts of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1); count eight), misdemeanor false imprisonment by violence (§ 236; count nine), and misdemeanor annoying or molesting a child under age 18 (§ 647.6, subd. (a); count ten). He was acquitted of two counts of foreign object penetration. (§ 289, subd. (a)(1); counts six & seven.) Defendant was sentenced to state prison for 29 years, consisting of the three-year middle term on count eight, four fully consecutive middle terms of six years each on counts one through four, and a consecutive term of two years (one-third the middle term) on count five. He was ordered to serve 171 days concurrent on counts nine and ten.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the trial court erroneously allowed the jurors to submit questions to be asked of witnesses, (2) the imposition of consecutive sentences violated his Sixth Amendment rights as set forth in Apprendi, Blakely, Booker, and Cunningham, (3) his fully consecutive sentences on counts three and four were improper because he had no reasonable opportunity to reflect between the commission of those two acts, and (4) his sentence on count nine or count ten must be stayed pursuant to section 654 because both counts were committed pursuant to the same intent and objective; the Attorney General concedes this last point. We shall modify the judgment.
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621] (Booker); Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).
FACTUAL BACKGROUND
June 17, 2005 incident involving R.S.
In approximately April 2005, defendant went to Denver, Colorado, for a bachelor party. While there, he met R.S., who was working as a dancer at a club. After defendant returned to Sacramento, he talked to R.S. by telephone three to four times per week. They became good friends but never discussed a romantic relationship.
In June 2005, defendant bought R.S. an airline ticket from Denver to Sacramento so that she could attend a disc jockey (DJ) competition. She arrived in Sacramento on June 16, 2005, and took a taxicab to defendant’s residence. That evening they smoked marijuana, walked to a restaurant, ate dinner, and returned to defendant’s house. That night they both slept on his futon mattress, but he made no advances toward her.
A couple of times the next day, defendant asked R.S. to “show [him] a little love.” She answered that she did not show her affection for her friends that way.
Before defendant went to work that morning, R.S. noticed that her airline ticket had been purchased by a person named “David” and was for a one-way trip rather than a round trip. Defendant told R.S. that he would take care of the ticket. She telephoned friends to arrange a trip back to Colorado.
Around 7:00 pm., defendant arrived home from work, went to the bedroom and saw R.S. putting on her makeup and getting ready to go to a nightclub where defendant had a DJ job that evening. He entered the bedroom and turned off the light. She turned the light back on and asked him not to turn it off again. He grabbed her, pulled her toward him, and asked her to do a dance and strip for him. She refused. He told her she had no choice and, if she did not dance for him, she could gather her belongings and leave.
R.S. ran to the bathroom and tried to lock the door. Defendant pushed the door open, came inside, grabbed her by the neck, and pushed his thumbs into her throat. She tried to scream but became lightheaded. He shut the bathroom window, pushed her up against the sink, continued to choke her, and told her that he would kill her. As the struggle continued, he moved her back to the bedroom.
In an effort to avoid being hurt, R.S. began to act as if she were acquiescing in defendant’s demands. She pulled her sweatshirt over her head. Then she ran out of the bedroom and down some stairs. When she was almost to the bottom, she felt her hair being pulled from behind. Her sock-clad feet slipped on the hardwood steps and caused her to fall. A white scrunchie that had been in her hair was pulled out.
Still grasping R.S.’s hair, defendant smashed her face into the stairs three times so hard that she heard her nose crack. In the ensuing struggle, her bra was pulled off and an earring was pulled from her ear. He pulled her into the bedroom and removed her pants and underwear.
R.S. got away from defendant, ran around the room, and evidently removed his cellular telephone from its charger in an attempt to call 911. She dialed the number “9” and later dialed the number “1” but never completed the call because he took the phone away from her.
Defendant then grabbed R.S., threw her back onto the futon, retrieved a condom from a closet, put it on, got on top of her, and raped her (count one). During the rape, the condom came off and he put it back on; when it came off a second time, he got a new condom from the closet, put it on, and reinserted his penis (count two). Thereafter, they had sex with R.S. on top. Initially, she was facing defendant (count four); later he withdrew, had her turn to face away from him, and then reinserted his penis (count three). Thereafter, defendant withdrew his penis and reinserted it without a condom (count five). Eventually R.S. noticed blood on her legs and faked a pain so that defendant would stop.
The verdict forms specify the acts constituting each rape; for example, count one is specified as being the “first time with condom.”
When defendant stopped having sex with R.S., he went downstairs and answered a ringing telephone. She went to the bedroom window and asked people passing by the outside of the house to call 911. At least two of them did so. Sacramento police officers arrived at the house, kicked open the door, and found defendant at the top of the stairs. R.S. told police that defendant had raped her.
R.S. was taken to a medical center where analysis of a urine sample revealed the use of methamphetamine and marijuana.
Defendant testified on his own behalf and denied that he had any physical altercation with R.S. He acknowledged having sex with R.S. and claimed that each act was consensual.
The defense presented several witnesses who suggested that R.S. had the appearance of a methamphetamine user. A defense psychiatrist testified that one of the most serious side effects of methamphetamine use is toxic psychosis, which is “the inability to accurately perceive reality.” He explained that when a person is under the influence of methamphetamine and has a psychotic episode, the episode will be imprinted in the brain as if it had really happened.
May 1, 2006 incident involving A.H.
In April 2006, 15-year-old A.H. and her friend were in the music department of a large retailer. The duo discussed A.H.’s upcoming 16th birthday party. Defendant overheard them talking, introduced himself, and told A.H. that he was a DJ for a local radio station. He said that he could help her with her party and said that he was 23 years old. They exchanged telephone numbers.
During the ensuing weeks, defendant and A.H. conversed frequently on the telephone and she spent time with him at the store where they had met. During one conversation, defendant told A.H. that he wanted to be more than her friend; A.H. responded that he was too old and she did not feel that way for him. Defendant said that “age was just a number.” A.H., uncomfortable with the conversation, quickly changed the subject.
One night, prior to the incident alleged at trial, defendant invited A.H. to a house that he was taking care of. A.H., her friend Tania, and Tania’s boyfriend, Jose, went to the house, although defendant did not want Jose to come. When they arrived, defendant was the only person present and there was a lot of alcohol in the kitchen. During the next five hours the group sat around, watched television, listened to music, and drank alcohol. At one point, while A.H. was in the bathroom, defendant walked in; A.H. believed that defendant knew she was in the bathroom.
After that night, A.H. continued to talk to defendant on the telephone. She mentioned that she wanted to work and needed a work permit but could not get one because of her grades. Defendant told A.H. that he knew a high school principal who owed him a favor and could help her out. A plan was made for A.H. to go to the same house as the prior incident and meet with defendant’s friend.
On May 1, 2006, after her mom told her that she could not meet with defendant and his friend, A.H. left school around 10:15 am. and went to the house. Defendant was there with his brother making alcoholic drinks; A.H. did not drink any alcohol even though defendant insisted. After 20 minutes, defendant’s brother left; A.H. sat with defendant on the couch, watched a movie, and waited for his friend to arrive.
While waiting, defendant moved closer to A.H., shoved her down on the couch, and held her hands above her head. He lifted her shirt, kissed her stomach, and started touching the clothing between her legs. A.H. moved her whole body and got defendant off of her. She got up, grabbed her backpack, ran out to the bus stop, and called Tania to tell her what happened. A.H. met with her mother and discussed the incident. They contacted police that evening.
After the incident, defendant continued to call A.H. but she did not answer his calls. Eventually, at a detective’s behest, A.H. placed a pretext telephone call to defendant.
At trial, defendant testified that after his brother left, defendant excused himself from the couch and said he was going to his bedroom to watch a movie. A.H. joined him on the bed. At some point, defendant got on top of A.H. and started kissing and touching her. In response, she kissed him and rubbed on him. Realizing it was wrong, defendant stopped. A.H. became upset, said that she should have gotten an early dismissal from school, grabbed her belongings, and left.
DISCUSSION
I
Defendant contends the trial court abused its discretion and violated his due process and jury trial rights when it allowed the jurors to submit questions to be asked of witnesses. We are not persuaded.
A. Background
During pretrial instructions the trial court advised the jurors that it would give them “the opportunity to submit written questions to those witnesses to me to be asked of the witness. I will review your question with counsel before asking it, and unless the question violates one of the rules of evidence I’ve just given you, I’ll ask your question of the witness.” The court also told the jurors to “keep an open mind about this case. In other words, don’t form any opinions on it until the matter is submitted to you for deliberation.”
During trial, outside the jurors’ presence, the trial court stated: “The record will reflect that consistent with the practice of proof by the Supreme Court of our state I have obviously allowed jurors to ask questions, while that procedure was not endorsed. In fact, I believe it was opposed by both counsel in pretrial discussions. Nonetheless, I gave counsel each counsel the opportunity to be heard on the question. I then resolved to do so over their objections. The Supreme Court has handed down minimal guidelines on this. They have said that it is not prejudicial or abusive of either party’s rights to allow questioning. When doing so, they require the questions be reviewed in chambers outside the presence of the jury to take evidentiary objections to the questions. We’ve done that. They’ve also said that counsel should be allowed follow-on questions after asking the questions the jurors posed. I’ve done that. Beyond that, they are not they haven’t said much else nor has our Judicial Coun[cil] Advisory Committee, which adopts rules of court, and I sit on that committee, and I chair the uniform rules committee or subcommittee, which reviews those rules.”
B. Analysis
Our Supreme Court has held that a trial judge “has discretion to ask questions submitted by jurors or to pass those questions on and leave to the discretion of counsel whether to ask the questions.” (People v. Cummings (1993) 4 Cal.4th 1233, 1305 (Cummings); see People v. Majors (1998) 18 Cal.4th 385, 407 (Majors).)
Defendant claims that Cummings and Majors are distinguishable. We disagree.
In Cummings, as in the present case, juror questions were received “[o]n several occasions during the trial.” (Cummings, supra, 4 Cal.4th at p. 1304.) We reject any suggestion that Cummings is distinguishable on the basis of the number of questions submitted.
The defendant in Cummings claimed that, in three instances, the jury questions were “prejudicial.” (Cummings, supra, 4 Cal.4th at p. 1304.) The court rejected the claim, noting that the only “prejudice” was the elicitation of additional evidence of the defendant’s guilt. (Ibid.) Defendant has not shown that the questions from his jury were prejudicial in any manner that the Cummings questions were not.
Defendant concedes that Majors did not indicate how many jury questions had been submitted by jurors in that case. Thus, the “numerous questions” asked in this case do not suffice to distinguish it from Majors.
Because Cummings and Majors are not distinguishable, this court is bound to follow them regardless of any contrary authority from other jurisdictions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant’s citation of authorities from the lower federal courts does not help him here. (E.g., United States v. Ajmal (2d Cir. 1995) 67 F.3d 12, 14-15; United States v. Bush (2d Cir. 1995) 47 F.3d 511, 513; United States v. Cassiere (1st Cir. 1993) 4 F.3d 1006, 1018.) However, he has preserved the issue for later review.
II
The trial court ruled that fully consecutive sentences on counts one through four (forcible rape) were justified under both the discretionary provisions of section 667.6, subdivision (c), and the mandatory provisions of section 667.6, subdivision (d). The court imposed a consecutive subordinate term for the count five rape pursuant to section 1170.1.
In this part, we consider defendant’s contention that the discretionary full-term consecutive sentences on counts one through four and the subordinate consecutive sentence on count five violated his Sixth Amendment rights as set forth in Apprendi, Blakely, Booker, and Cunningham.
Defendant acknowledges that the California Supreme Court has held that imposition of consecutive sentences does not implicate his Sixth Amendment rights (People v. Black (2007) 41 Cal.4th 799, 820-823), and that this court is bound to follow that precedent (Auto Equity Sales, supra, 57 Cal.2d at p. 455). However, he raised this claim in order to preserve it for further review following the United States Supreme Court’s grant of certiorari in Oregon v. Ice (2009) 555 U.S. ___ [172 L.Ed.2d 517] (Ice).)
After briefing in this case was completed, the United States Supreme Court ruled in Ice that “twin considerations historical practice and respect for state sovereignty counsel against extending Apprendi's rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that ‘extends down centuries into the common law.’ [Citation.] Instead, specification of the regime for administering multiple sentences has long been considered the prerogative of state legislatures.” (Ice, supra, 555 U.S. at p. ___ [172 L.Ed.2d at p. 525].) Because Ice has been decided adversely to him, defendant’s Apprendi claim must fail.
III
This brings us to defendant’s contention that the mandatory full-term consecutive sentences (§ 667.6, subd. (d)) on counts three and four were improper because those crimes were not committed on separate occasions, in that he had no reasonable opportunity to reflect between the commission of those two sex acts. It is not necessary to consider this claim at length because any error could not have been prejudicial.
As noted, the trial court selected full-term consecutive sentences for counts three and four “pursuant to either or both Penal Code section 667.6, sub[division] (c) or sub[division] (d).” Defendant reasons that the erroneous imposition of mandatory consecutive terms was prejudicial because the alternative imposition of discretionary consecutive terms violated the principles of Apprendi.
In part II, ante, we rejected the predicate of defendant’s claim of prejudice. The trial court’s exercise of its discretion to impose fully consecutive terms on counts three and four did not violate defendant’s Sixth Amendment rights. Any error in the alternative finding that consecutive sentences were mandatory, based upon an allegedly inadequate opportunity to reflect, was necessarily harmless.
IV
Defendant contends, and the Attorney General concedes, the sentence on count nine (false imprisonment of A.H.) or count ten (annoying and molesting A.H.) must be stayed pursuant to section 654 because both counts were committed pursuant to the same intent and objective. We accept the Attorney General’s concession.
“‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which... comprises an indivisible transaction punishable under more than one statute.... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162 (Coleman); see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The prosecutor explained in closing argument that there were two charges involving A.H. “[T]he first one is false imprisonment. The elements are that [defendant] intentionally and unlawfully restrained, detained, or confined a person, and [defendant’s] act made that person stay or go somewhere against that person’s will. [¶] Okay. It’s a simple charge in that he restrained, detained, or confined her. When he held her down on the couch by her wrists with his body on top of her preventing her from moving, she was restrained and detained. She was not able to go. He was forcing her to stay.”
The prosecutor then told the jury that the other charge related to A.H. was annoying or molesting a child. He outlined the facts that demonstrated that defendant knew that A.H. was a child under 18 years of age. Then he summarized the facts that constituted the charge as follows: “He held her first with both of her wrists, and he tried to lift up her shirt with his mouth. When he was having difficulty with that, he used his hands and lifted her shirt, how he kissed her stomach and he was trying to touch down in her vaginal area and got his hand where her pubic hair starts. She was telling him no, but he kept on going until she was finally able to get him off of her, and she ran from the house grabbing her backpack, immediately called her friend and then her mother.”
The prosecutor did not contend, and the evidence did not show, that defendant falsely imprisoned A.H. in count nine with any intent or objective other than his commission of the offense in count ten. Thus, the sentence on count nine or count ten must be stayed pursuant to section 654. (Coleman, supra, 48 Cal.3d at p. 162.) We shall modify the judgment by staying the sentence on count ten pursuant to section 654.
DISPOSITION
The judgment is modified by staying the sentence on count ten pursuant to section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: RAYE, Acting P. J., HULL, J.