Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0698
HULL, J.A group of young people gathered in the woods behind an apartment complex to drink. A 15-year-old girl passed out, was moved to another location in the woods, and was sexually assaulted.
A jury convicted defendant of kidnapping with the intent to commit rape or sexual penetration (Pen. Code, § 209, subd. (b)(1); unspecified section references that follow are to the Penal Code), rape of an unconscious person (§ 261, subd. (a)(4)), and digital penetration of an unconscious person (§ 289, subd. (d)). Sentenced to a life term with the possibility of parole plus a determinate term of 20 years, defendant appeals, asserting that (1) accomplice testimony was not corroborated, (2) insufficient evidence supports his convictions for kidnapping and rape, (3) the trial court and prosecutor violated defendant’s constitutional right to confront his accuser, (4) the court erroneously ruled that defendant’s silence constituted an adoptive admission, (5) the court erred in instructing the jury, (6) cumulative error compels reversal, (7) the court violated section 654 in imposing sentence, (8) unauthorized fines must be corrected, and (9) the imposition of the upper term sentence violated his constitutional right to a jury trial.
We amend the abstract of judgment to reflect restitution and parole revocation fines in the appropriate amount, and otherwise affirm the judgment.
Facts and Proceedings
The 15-year-old victim went with some friends to a wooded area behind their apartment complex to drink. Teenagers often congregated in this area, where there were a number of logs in a pile. We will refer to this area as “the log pile” to distinguish it from the different location where the sexual assault took place.
Defendant, the 20-year-old brother of one of the victim’s friends, was already at the log pile when the group arrived. They were joined by one of defendant’s friends, Luke Branson.
The victim and the others drank a lot of vodka. The victim became drunk, kissed Branson, and told him that she wanted to have sex with him. She sat on the ground, leaning against the log, and spoke incoherently. When she tried to stand up, she passed out. She did not remember anything that occurred after this point.
Branson was the main prosecution witness and described what transpired. According to his testimony, defendant said, “Come on, let’s go fuck her.” Branson accompanied defendant, who picked the victim up and carried her approximately 50 to 85 feet to a more secluded area, across a road and down into a gully where there were trees and bushes. The area was not visible from the road but was another place where teens often gathered to smoke and drink. We refer to this site as “the wooded area.”
Defendant put the victim on the ground, said he was going to get some condoms, and started to walk back to his apartment.
As defendant neared the apartment complex, he ran into another teen, Daniel R., who was headed to the log pile to join everyone else. Defendant said, “We’re getting ready to fuck some bitch, do you want a condom?” Daniel said he was “not cool with that,” and continued to the log pile. En route, Daniel met defendant’s brother, Matt, who told him that no one was at the log pile. Matt and Daniel instead went to the wooded area, where the victim was lying unconscious, with her head in Branson’s lap. She was fully clothed.
Daniel tried to wake the victim, but was unsuccessful. Branson told him that he would take care of her, and Daniel returned to the apartment complex.
Defendant came back to the wooded area and gave Branson a condom. Branson and defendant undressed the victim, leaving only her swimsuit top around her neck. According to Branson, defendant put his fingers into the victim’s vagina. Branson put his mouth on the victim’s breast. Branson then put on a condom and tried to penetrate the victim; as described later in this opinion, his testimony was equivocal as to whether he actually did so. He said that Matt covered the victim’s eyes and, at one point, defendant held her legs as Branson tried to penetrate her. The victim did not regain consciousness at any time. Branson did not ejaculate, and he threw the condom and its wrapper on the ground.
Branson heard people calling the victim’s name and saw flashlights. Defendant and Branson left the victim, ran up the embankment, across the road, and back to defendant’s apartment, where they sat on the patio and smoked cigarettes. When a police officer asked if they had seen the victim, they replied they had not.
At some point, another neighbor noticed the police action, and asked Daniel if he knew what had happened. While they were talking, defendant came up to them and said there was a girl who was naked, drunk, and passed out in the woods. Daniel led the neighbor to the wooded area, where they found the victim.
Emergency personnel took her to the hospital. The victim was still unconscious and had a blood alcohol level of 0.30. A nurse performing an external pelvic examination of the victim noticed plant matter and dirt in and around the victim’s genitals. She also noticed redness and a small tear, injuries consistent with penile and digital penetration. Because the victim began to struggle, the nurse was unable to perform an internal examination. The victim eventually regained consciousness, but did not remember anything that had happened.
Officers investigating the assault took defendant and his brother, Matt, to the police station for questioning. When the brothers were left alone in the police car, a recording device picked up their conversation. Defendant said to Matt: “Me and [Branson] were together, you don’t know [Branson’s] name . . . .” “I’m just making sure you don’t (inaudible) all you know is that [the victim] (inaudible) was with Melissa [defendant’s sister].” “Just say, just say, just say that’s all you know.”
Defendant continued, “All they’re going to do is ask us questions. Do not break down Matt, Matthew, do not break down. They’re gonna ask you some questions. [¶] . . . [¶] You don’t know nothing. Don’t let em fucking--just tell them I wasn’t involved, you weren’t involved. You weren’t even near the girl.” He added, “[J]ust say you didn’t see her. Say you might have seen her earlier at the pool today. That’s the only time you see her. Or you--or you heard that Melissa was kicking it with her earlier just a little while ago. That’s all you, that’s all you, that’s all you know. But if they are trying to say was I with her? No. Were you with her? No. Was [Branson] with her? No. Me and [Branson] were together.” He added, “[W]e didn’t do anything any ways. We just don’t want to mix up our stories. We didn’t do anything. We weren’t even--we weren’t even with her anyways.”
The next night, officers conducted a probation search of the apartment where defendant lived with his family. They found an empty vodka bottle, similar to the one found at the log pile. They also found a package of condoms that matched the one found in the wooded area.
DNA on the condom found in the wooded area matched that of Branson and the victim.
Branson entered a plea agreement with the prosecution and testified at trial against defendant. The jury was instructed that Branson was an accomplice as a matter of law.
A jury convicted defendant of kidnapping with the intent to commit rape or sexual penetration, rape of an unconscious person, and digital penetration of an unconscious person. The trial court sentenced defendant to a prison term of life with the possibility of parole plus a determinate term of 20 years.
This appeal followed.
Discussion
I
Corroboration of Accomplice Testimony
Defendant contends that there was no evidence corroborating Branson’s testimony about defendant’s involvement in two of the charged offenses, aggravated kidnapping and digital penetration, necessitating reversal on those counts. We disagree.
Section 1111 provides in relevant part: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” This provision “serves to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.)
Corroborating evidence must tend to connect the defendant with the commission of each crime charged. (People v. Hillhouse (2002) 27 Cal.4th 469, 492; see, People v. Rodrigues (1994) 8 Cal.4th 1060, 1128-1130.)
As the California Supreme Court recently explained, “To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562-563; accord People v. Rodrigues, supra, 8 Cal.4th at pp. 1128-1129; People v. Szeto (1981) 29 Cal.3d 20, 27.)
“To determine if sufficient corroboration exists, we must eliminate the accomplice’s testimony from the case, and examine the evidence of other witnesses to determine if there is any inculpatory evidence tending to connect the defendant with the offense. [Citations.] ‘[C]orroboration is not sufficient if it requires interpretation and direction to be furnished by the accomplice’s testimony to give it value . . . .’ [Citation.] It must do more than raise a conjecture or suspicion of guilt, however grave. [Citations.] On the other hand, unless a reviewing court determines that the corroborating evidence should not have been admitted or that it could not reasonably tend to connect a defendant with the commission of a crime, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
“Although corroborating evidence need only be slight and may be entitled to little consideration when standing alone [citations], it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators. [Citations.]” (People v. Falconer, supra, 201 Cal.App.3d at p. 1543; see also People v. Zapien (1993) 4 Cal.4th 929, 982.)
Ultimately, the evidence “is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.” (People v. Fauber (1992) 2 Cal.4th 792, 834.)
Here, the majority of the evidence of defendant’s involvement in the crimes of aggravated kidnapping, rape of an unconscious person and digital penetration came from Branson, who testified at trial that defendant carried the victim from the log pile to the wooded area. At that site, according to Branson, defendant penetrated the victim with his finger and held her leg while Branson raped her. The court properly instructed that Branson was an accomplice as a matter of law and that his testimony had to be corroborated by independent evidence. We examine the corroborating evidence supporting each of the challenged offenses.
A. Aggravated Kidnapping
Defendant asserts there was insufficient evidence apart from Branson’s testimony to connect him with the crime in such a way as to satisfy the jury that Branson was telling the truth.
In arguing that sufficient corroboration exists to support defendant’s conviction, the People point out that witness testimony and physical evidence bore out much of Branson’s testimony, thereby establishing Branson’s credibility. We agree that evidence demonstrated that the group of people drank at the log pile, that the victim was moved, that defendant obtained condoms, and that the victim was sexually assaulted. But Branson’s credibility in the abstract is not sufficient for purposes of corroboration; there must be independent evidence that connects defendant with the commission of the charged offense. (See People v. Davis, supra, 36 Cal.4th at p. 543.)
We find that there is evidence in the record, independent of Branson’s testimony, that reasonably tended to connect the defendant with the kidnapping and was sufficient to satisfy the jury that Branson was telling the truth.
As noted, when Daniel R. met defendant as defendant was coming out of the woods to obtain condoms, defendant said “We’re getting ready to fuck some bitch, do you want a condom?” Defendant’s statement shows that defendant intended to participate in the sexual assault of the victim with Branson and it was reasonable for the jury to conclude that defendant and Branson together would move her to a more secluded location before defendant went to obtain the condoms.
Moreover, after defendant returned from the apartments with the condoms, he went to the wooded area where the assault occurred, that is, to the more secluded location where the victim had been moved. He knew where to go.
Finally, defendant’s statements to his brother while they sat in the police car were further evidence of guilt, which allowed the jury reasonably to infer that defendant had participated in the entire sequence of events, including the kidnapping. Most notably, defendant said that he and Branson were together. He did not distinguish among the various events to limit or minimize his participation in them.
While one could speculate that defendant left the log pile to get condoms while Branson and the victim were still there, that Branson alone moved the victim to the wooded area, that defendant then returned to the log pile to find no one there and then went to the wooded area as another place known to the young people in the area and, finally, that his statements to his brother arose only because he knew he had participated in the rape, on this record the jury could reasonably reject such a scenario and conclude, as it did, that Branson was telling the truth when he implicated defendant in the kidnapping. Where, as here, we cannot say the independent evidence offered in corroboration of Branson’s testimony could not reasonably tend to connect defendant to the kidnapping, the finding of the trier of fact on the issue of corroboration may not be disturbed on appeal. The evidence is sufficient.
B. Digital Penetration
Branson testified that defendant committed this offense before Branson raped the victim. Substantial evidence demonstrates that an act of digital penetration occurred. A nurse described the injury to the victim’s vagina and said this injury was consistent with digital penetration.
Again, defendant’s statement to Daniel R. (“We’re getting ready to fuck some bitch, do you want a condom?”) shows clearly that defendant intended to participate as an actor in the sexual assault itself and not merely as an observer or aider and abettor. And again, when talking to his brother in the police car, defendant did not parse his participation in the events that took place. He instructed his brother to say that none of the three had done anything, nor had they even seen the victim other than in the company of their sister earlier in the day. As with the kidnapping charge, we cannot say that this evidence could not reasonably tend to connect defendant with the crime of digital penetration of the victim and, therefore, we cannot disturb the jury’s finding on that charge.
II
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his convictions for aggravated kidnapping and rape. His claims are unpersuasive.
A. Kidnapping
Defendant asserts that there was insufficient evidence of asportation to establish that a kidnapping occurred. To the contrary. The victim was unconscious at the log pile and somehow ended up at the wooded area. She did not get there under her own power. Someone moved her to this area, a spot 50 to 85 feet from the original site, down a gully, and into a secluded area away from public view. The asportation element of aggravated kidnapping is met if the victim is moved a distance more than incidental to the commission of the sexual offense, and the movement substantially increased the risk of harm to the victim. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152, 1155.)
That is precisely what happened here. The victim was moved a distance away, to a place that significantly decreased the possibility that she might be seen or rescued. This movement was not merely incidental to the rape. (See People v. Dominguez, supra, 39 Cal.4th at pp. 1153-1154.) More than sufficient evidence established the asportation element of aggravated kidnapping.
B. Rape
Defendant was convicted of rape of an unconscious person based on the theory that he aided and abetted Branson, the person who actually had sexual intercourse with the victim. Defendant contends that his conviction must be reduced to attempted rape because there is insufficient evidence of penetration to sustain a conviction on the greater offense. We disagree.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.)
A reasonable inference “‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.’ [Citation.]” (People v. Raley (1992) 2 Cal.4th 870, 891.)
“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones, supra, 51 Cal.3d at p. 314.)
At trial, Branson testified that he put on a condom and “began to try to have sex with [the victim]. After a minute, I stopped, partly because I couldn’t, and partly because I felt it was wrong, so I stopped.” He explained that he “[t]ried to insert [his] penis in her vagina,” but was not able to do so. When asked whether he knew if the tip of his penis entered the victim’s vagina, Branson responded, “Not that I know. It might have. I don’t recall it doing that, I mean.”
Later Branson was asked, “And when you say you tried to have sex with her, did the tip of your penis go [past] the outer lips of her vagina?” Branson replied, “As far as I can remember, no.” Counsel asked, “Did the tip of the condom?” Branson answered, “I believe so, yes.”
During cross-examination, defendant’s attorney asked Branson whether he had sex with the victim. Branson responded, “If you call it sex, yes.” He later stated that he knew the condom “had been inside her or touched her,” and on several occasions admitted having lied when he told officers that he did not have sex with the victim.
A nurse testified that the redness and swelling on portions of the victim’s genitalia were consistent with penile penetration. In response to questions from defense counsel, the nurse acknowledged that redness can be caused by infection, but added that infection usually involves more discharge, swelling and redness to a different part of the genital area than seen on the victim.
The victim testified that in the 60 days preceding the assault, she had not had any injury to, or medical treatment of, her genitals and had not had intercourse with anyone.
Defendant contends that the evidence presented at trial is insufficient to establish that penetration occurred. We disagree.
Rape involves “[a]ny sexual penetration, however slight[.]” (§ 263.) “The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.” (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
Defendant focuses his attention on the lack of evidence of vaginal penetration. But, as People v. Karsai makes clear, vaginal penetration is not required for rape; penetration of the external genital organs is sufficient. Here, Branson acknowledged that the tip of his condom penetrated the victim, and the physical examination of the victim disclosed results consistent with penile penetration. A medical witness explained why an infection was unlikely as the source of these symptoms.
More than sufficient evidence supports the jury’s conclusion that sexual penetration occurred. (See People v. Holt (1997) 15 Cal.4th 619, 669.)
III
Right to Confrontation
Defendant contends that actions by the trial court and the prosecutor violated his constitutional right to confront an essential witness, Luke Branson. Specifically, defendant asserts that the trial court erroneously precluded evidence detailing Branson’s plea agreement, such as the maximum exposure Branson originally faced, the negotiated sentencing range he received, and the offenses Branson admitted by pleading no contest. Defendant contends that additional error occurred when the prosecutor failed to correct Branson’s misstatement that the trial judge, rather than Branson’s sentencing judge, would be the one to assess his truthfulness in testifying when imposing sentence. No constitutional violation occurred.
“[T]he existence of a plea agreement is relevant impeachment evidence that must be disclosed to the defense because it bears on the witness’s credibility. [Citation.] Indeed, . . . ‘when an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness’s credibility.’ [Citation.]” (People v. Fauber, supra, 2 Cal.4th at p. 821; see also People v. Phillips (1985) 41 Cal.3d 29, 46.)
“Full disclosure is not necessarily synonymous with verbatim recitation, however. Portions of an agreement irrelevant to the credibility determination or potentially misleading to the jury should, on timely and specific request, be excluded.” (People v. Fauber, supra, 2 Cal.4th at p. 823.) “Although the exposure through cross-examination of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of confrontation, the confrontation clause does not prevent a trial court from imposing reasonable limits on a defense counsel’s inquiry into the potential bias of a prosecution witness. . . . [¶] The confrontation clause simply guarantees an opportunity for effective cross-examination; it does not assure a chance to cross-examine in whatever way, and to whatever extent, the defense might wish.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385-1386.)
“On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683].) “As long as the cross-examiner has the opportunity to place the witness in his or her proper light, and to put the weight of the witness’s testimony and credibility to a reasonable test which allows the fact finder fairly to appraise it, the trial court may permissibly limit cross-examination to prevent undue harassment, expenditure of time, or confusion of the issues. [Citations.] Thus, a trial court’s exercise of discretion to exclude evidence does not implicate or infringe a defendant’s federal constitutional right to confront the witnesses against him, unless the prohibited cross-examination might reasonably have produced a significantly different impression of the witness’s credibility.” (In re Ryan N., supra, 92 Cal.App.4th at p. 1386.)
Defendant cannot meet this standard.
The trial court precluded defendant from introducing evidence outlining the specifics of the maximum sentence Branson initially faced and the sentencing range under the plea agreement, concluding that this information was not relevant and was potentially confusing to the jury. The court noted, however, that defense counsel could nonetheless “talk about the fact that [Branson] was facing significantly more time without describing what that time was. I think that you can say that there is a range of time that he is facing and he would be sentenced on the lower end if his testimony was found to be truthful by the trial judge; and if found to be untruthful, he would be looking at the upper range.”
Defense counsel responded that he had not intended to talk about the maximum and minimum times, and added that he agreed it would not be proper to “argue, that gee, you are facing a life sentence, aren’t you, type of thing. I think that would be improper.”
Having agreed with these limitations, defendant cannot now assert that the court improperly curbed his cross-examination by refusing to permit questioning about the potential punishment faced by Branson. Any claim of error is forfeited. Moreover, the court properly weighed the potential for confusion and prejudice against the probative value of this evidence. There was no abuse of discretion. (See In re Ryan N., supra, 92 Cal.App.4th at p. 1385.)
Defendant next asserts the court erred in refusing to permit him to ask Branson about the crimes to which he entered his no contest plea. Defendant asserted the pleas of no contest to digital penetration and statutory rape were inconsistent with his trial testimony. The court concluded that Branson may have entered a plea to the charge of digital penetration based on his culpability as a principal rather than as the actual perpetrator and therefore his plea was not inconsistent with his trial claim that he did not place his fingers in the victim’s vagina.
The court found “the somewhat more troubling issue” to be the possible inconsistency between Branson’s plea of no contest to statutory rape and his trial testimony, in which he equivocated as to whether penetration occurred. The court concluded, “But in analyzing all of the arguments made by both sides, I think that the probative value of going into the specifics of what he pled to and why, and the collateral issues that they would raise, is outweighed by the consumption of time and the risk of confusing the jury and the prejudicial effect. So I’m not going to allow you any further inquiry in that area, and I’ll note your objection for the record.”
In arguing that the trial court’s ruling was erroneous, defendant fails to recognize that the court’s decision was predicated on Evidence Code section 352. Defendant asserts only that he “should have been permitted to confront Branson with his plea.” He does not argue that the court abused its discretion in weighing the probative value of this evidence against its potential for confusion, prejudice, and consumption of time. And absent such a showing, the court’s ruling cannot be disturbed.
Defendant raises one final claim involving the plea agreement. At trial, Branson testified that Judge Kingsbury, the trial judge, would be the person to decide his truthfulness under the terms of the plea agreement. In reality, it was Branson’s sentencing judge who would make that determination. Defendant contends that this distinction was important because the jury would assume that the credibility determination would be made by the judge who heard Branson’s testimony, not someone who would rely on a cold record and the prosecutor’s assessment. Defendant contends that the prosecutor is “under an affirmative duty to ensure that prosecution witnesses do not misrepresent the nature of inducement that they have received in exchange for their testimony. That duty was breached here when Branson was allowed to mislead the jury to believe that Judge Kingsbury would decide whether his trial testimony was truthful.”
Defendant’s claim of error is meritless. Not only did defense counsel fail to raise this claim in the trial court, he reinforced Branson’s testimony by asking him whether “Judge Kingsbury is going to make the decision as to how much time you’re going to spend in prison” and reaffirming with Branson that Branson entered his plea in front of a different judge, not Judge Kingsbury. Defense counsel was just as responsible as the prosecutor for any “misleading” of the jury.
But more importantly, defendant’s claim that this “misconduct” was prejudicial is unpersuasive. The references to the respective roles of the judge and prosecutor in assessing Branson’s credibility were fleeting, and defense counsel explicitly told the jury that it was a judge, not the prosecutor, who would make the determination about punishment. Defense counsel effectively cross-examined Branson and challenged his version of events. Given the overwhelming evidence against defendant, there is no likelihood that a different result would have occurred had the prosecutor corrected Branson’s mistake. The prosecutor’s error, if any, was harmless.
IV
Adoptive Admission
At trial, a police officer testified that, after searching defendant’s bedroom and the hall closet in a probation search, he asked defendant where the victim’s cigarette lighter was, adding that the victim had told the officer that defendant had it. Defendant gave the disposable lighter to the officer. The officer then showed defendant condoms that had been found in the apartment and asked defendant if they were his. Defendant did not say anything.
Over defendant’s objections, the court concluded that defendant’s silence qualified as an adoptive admission and instructed the jury on adoptive admissions pursuant to CALJIC No. 2.71.5. On appeal, defendant contends that his silence under these circumstances cannot be deemed an adoptive admission. We agree, but conclude that the error was harmless.
Evidence Code section 1221 provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
“Under this provision, ‘If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.’ [Citations.] ‘For the adoptive admission exception to apply, . . . a direct accusation in so many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1189.)
“‘To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question [of fact] for the jury to decide.’ [Citation.]” (People v. Riel, supra, 22 Cal.4th at pp. 1189-1190.)
The California Supreme Court observed, “‘[A] typical example of an adoptive admission is the accusatory statement to a criminal defendant made by a person other than a police officer, and defendant’s conduct of silence, or his words or equivocal and evasive replies in response. . . .’” (People v. Silva (1988) 45 Cal.3d 604, 623-624.)
One commentator emphasized this distinction: “A criminal defendant’s silence in the face of a police officer’s accusation is more reasonably due to exercise of the privilege against self-incrimination than to a belief in the truth of the accusation. Hence such silence does not constitute an adoptive admission, and the police officer’s accusatory statement and defendant’s silence in response are inadmissible against a criminal defendant.” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2007) Exceptions to Hearsay Rule, § 3.26, pp. 94-94.1.)
Here, defendant’s silence was in response to a police officer’s questioning during a probation search. Under these circumstances, defendant’s silence cannot be construed as an adoptive admission, and the court’s instruction to the jury was erroneous.
However, the error was harmless under any standard. (See People v. Carter (2003) 30 Cal.4th 1166, 1197.) Defendant told Branson that he was going back to the apartment to get condoms. On his way there, he ran into Daniel R., and told him, “We’re getting ready to fuck some bitch, do you want a condom?” Defendant’s mother told officers that the closet in which the condoms were found was the closet in which defendant kept his clothes and belongings. Given this evidence (and the overwhelming evidence otherwise linking defendant to the charged crimes), the erroneous treatment of defendant’s silence as an adoptive admission can only be deemed harmless error.
V
Instructional Error
Defendant raises several claims of instructional error, and we address each in turn.
A. Instruction on the Natural and Probable Consequences Doctrine
Defendant contends that the court erred in instructing the jury on the natural and probable consequences doctrine pursuant to CALJIC No. 3.02. Specifically, he asserts that his convictions for the sex offenses cannot be based on the theory that these crimes were the reasonably foreseeable consequences of the aggravated kidnapping because he was the perpetrator--not the aider and abettor--of that intended offense. Defendant is mistaken.
“Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254.)
After giving general instructions on aiding and abetting, the trial court instructed the jury pursuant to CALJIC No. 3.02 that liability for rape could also be predicated on the natural and probable consequences doctrine if the jury made the following findings beyond a reasonable doubt: “[O]ne, the crime [of] kidnap to commit the rape or unlawful sexual penetration, Count One, was committed; two, that the defendant aided and abetted the commission of that crime; three, . . . that a co-principal in the crime committed the crime . . . of rape of an unconscious person, Count Two . . .; and four, the crime . . . of rape of an unconscious person [Count Two is a] natural and probable consequence of the commission of the crime of [kidnapping] to commit rape or unlawful sexual penetration, Count One.”
This instruction concluded that the jury had to be “satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime . . . of rape of an unconscious person, Count Two . . . [is a] natural and probable consequence[] of the commission of that target crime.”
In closing argument, the prosecutor argued that defendant aided and abetted the charged offenses, and then addressed an alternative theory of liability under the alternative natural and probable consequences doctrine. The prosecutor argued: “And one way this plays a role in this particular case and there is a variety of ways it can, one way would be if you found that the defendant did, in fact, participate with Luke Branson in picking up and carrying the victim out into the woods. And then he left. [¶] Well, if he’s guilty of kidnapping for purposes of sexual assault, rape of an unconscious person, sexual penetration of an unconscious person, then the fact that Luke Branson committed that crime is a natural and probable consequence of that kidnapping. And he can be guilty of the kidnapping whether or not that intended end result occurs. But he’s also responsible, even if it doesn’t, or even if he is gone and it does. And it’s a natural and probable consequence.”
Defendant asserts that the natural and probable consequences doctrine is inapplicable if he committed, rather than aided and abetted, the intended act of aggravated kidnapping. Noting that the prosecutor theorized and Branson testified that defendant actually committed the kidnapping and did not aid and abet someone else, defendant contends the court erred in instructing the jury on the natural and probable consequences theory pursuant to CALJIC No. 3.02. (See People v. Prettyman, supra, 14 Cal.4th at p. 269.)
However, the evidence was not so clear cut. Branson knew what defendant intended when defendant picked the victim up and carried her to a clearing, saying “[L]et’s go fuck her.” Branson accompanied him and then waited at the site while defendant went to get condoms. Given this evidence, the jury could have concluded that defendant and Branson acted together in committing an aggravated kidnapping, with each aiding and abetting the other. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164.) In that case, instructions on aiding and abetting under the natural consequences doctrine would have been proper.
But more importantly, defendant is wrong in his apparent belief that a perpetrator cannot be held liable for the natural and probable consequences of an intended crime. A perpetrator and an aider and abettor “are equally liable for the natural and foreseeable consequences of their crime. Both the perpetrator and the aider and abettor are principals, and all principals are liable for the natural and reasonably foreseeable consequences of their crimes.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376; accord People v. Culuko (2000) 78 Cal.App.4th 307, 329-330.)
If defendant kidnapped the victim for the purpose of committing sex offenses, his liability for the ensuing sexual assault could appropriately be based on a natural and probable consequences theory. To the extent that the instruction erroneously limited this theory to aiders and abettors, defendant can only have benefitted. If the jury concluded that he did not aid and abet the kidnapping, it would not have relied on CALJIC No. 3.02 for a basis of liability. The instruction would have been inapplicable, and defendant cannot demonstrate prejudice.
Finally, in any event, the evidence of defendant’s involvement in the sexual offenses was overwhelming, as already detailed. Defendant aided and abetted count 2, rape of an unconscious person, by obtaining condoms and holding the victim during the assault. The evidence also established that he was the sole perpetrator of count 3, penetration of an unconscious victim. Under these circumstances, there was no reasonable likelihood of a different verdict in the absence of the challenged instruction. The error, if any, was harmless. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1378.)
B. Failure to Give Mayberry Instruction
Defendant contends that the trial court erred in failing to instruct the jury, sua sponte, that a reasonable yet mistaken belief the victim consented to have sexual intercourse was a defense to the charges of rape and aggravated kidnapping. (People v. Mayberry (1975) 15 Cal.3d 143.) No evidence was introduced to support giving such an instruction.
“The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim’s equivocal conduct on the basis of which he erroneously believed there was consent.
“In addition, the defendant must satisfy the objective component, which asks whether the defendant’s mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted.)
“In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Dominguez, supra, 39 Cal.4th at p. 1148.)
Defendant cannot satisfy either of these tests. At no time did defendant suggest that he was relying on a Mayberry defense. Rather, in his arguments to the jury, defense counsel repeatedly acknowledged that a rape occurred, but argued there was insufficient evidence linking defendant to that crime.
Absent reliance on a Mayberry defense and absent the request for such an instruction, defendant’s right to a Mayberry instruction “depends on whether the defendant has proffered ‘substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented to sexual intercourse.’ [Citation.]” (People v. Dominguez, supra, 39 Cal.4th at p. 1148.) No such evidence was adduced.
Defendant claims that he believed the victim would be awakened to participate in sexual activity and that Branson “would only attempt to have sex with her if she was conscious.” Defendant’s claim defies both evidence and logic. When the group first gathered at the log pile, the victim became drunk, kissed Branson, and told him that she wanted to have sex with him. However, the victim then passed out and could not be revived. She remained unconscious while she was moved to the wooded area, undressed, and assaulted. She was unconscious when she was found in the woods and was unconscious when she was taken to the hospital. She remembered nothing of the events that transpired. Under no stretch of the imagination could anyone have reasonably believed that the victim consented to sexual contact, or that sexual contact would occur only if the victim was conscious. (See also People v. Dancy (2002) 102 Cal.App.4th 21, 36-37 [rejecting concept of advance consent to unconscious sexual intercourse].)
Because there was no evidence that defendant relied on a mistake-of-fact defense and no evidence to support to such a defense, the trial court was under no obligation to give a Mayberry instruction. Defendant’s claim to the contrary is meritless.
C. Failure to Instruct on Lesser Included Offenses
Defendant contends that the court erred in failing to instruct on several lesser included offenses, necessitating reversal of his convictions. We do not agree.
“An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, ‘evidence from which a rational trier of fact could find beyond a reasonable doubt’ that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged.” (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
1. Simple Kidnapping as a Lesser Included Offense to Aggravated Kidnapping
Defendant contends that the trial court should have instructed on simple kidnapping as a lesser included offense to kidnapping with intent to commit rape because, arguably, neither the asportation nor specific intent elements required for aggravated kidnapping were met. As our previous discussion makes clear, that is not the case.
Defendant asserts that “because the movement was from one wooded area to another, with no significant boundaries crossed and no substantial change in environment, there was room for the jury to find that the asportation element necessary for aggravated kidnapping was not met.” The evidence established otherwise: there was in fact a substantial change in environment. The victim was moved from one wooded area to another, in a gully and away from public view. The evidence, if believed, established the necessary asportation requirement for aggravated kidnapping.
Similarly, the evidence does not support defendant’s claim that he did not move the victim with the intent to sexually assault her while she was unconscious. The victim was unconscious throughout these events, including while she was moved. When defendant picked up the victim to carry her away, he said “Come on, let’s go fuck her.” Defendant’s claim that he moved the victim in order to have sex with a conscious, consenting partner has no credible evidentiary support in the record.
If defendant was guilty of any crime, it was aggravated kidnapping. Under those circumstances, the court had no obligation to instruct on simple kidnapping as a lesser included offense. (See People v. Mendoza, supra, 24 Cal.4th at p. 174.)
2. False Imprisonment as Lesser Included Offense to Aggravated Kidnapping
Defendant asked the court to instruct the jury on false imprisonment by violence or menace (§ 236) as a lesser included offense to kidnapping, but the court refused. On appeal, defendant contends this ruling was erroneous. It was not.
The instruction requested by defendant provided in relevant part, “Every person who by violence or menace violates the liberty of another person by intentionally and unlawfully restraining, confining, or detaining that person and compelling that person to stay or go somewhere without [his/her] consent is guilty of the crime of false imprisonment by violence or menace in violation of Penal Code section 236. [¶] ‘Violence’ means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint. [¶] ‘Menace’ means threat of harm express or implied by word or act.” The instruction then outlined the elements to be proved, including that “[t]he restraint, confinement or detention was accomplished by violence or menace.”
There was no basis for giving this instruction because there was no absolutely no evidence of violence or menace. Because the victim was unconscious throughout the entire ordeal, there was no need for either violence or threats and neither occurred.
The court properly concluded that there was no evidence to support giving the requested instruction.
3. Attempted Rape as Lesser Included Offense of Rape
Defendant contends that because the evidence relating to penetration was equivocal, the court should have instructed the jury on the lesser included offense of attempted rape. Any error was harmless.
As we have already noted, the evidence of penetration was less equivocal than defendant claims. Branson’s testimony centered on whether he penetrated the victim’s vagina. But that is not the act required for rape. The issue was not whether defendant penetrated the victim’s vagina, but whether he penetrated her external genital organs. (See People v. Karsai, supra, 131 Cal.App.3d at p. 232.)
Moreover, any error in failing to instruct on attempted rape was harmless. The jury was instructed on sexual battery as a lesser included offense to the rape charge, and defense counsel urged the jury to return such a verdict if it concluded there was no penetration. It did not do that, and instead convicted defendant of rape. Implicit in the jury’s verdict is a determination that penetration occurred. An instruction on attempted rape, also based on the lack of penetration, would not have had any effect.
VI
Cumulative Error
Defendant suggests that the cumulative effect of the court’s many errors was prejudicial, necessitating reversal. We have found few, if any errors. Their combined effect is no more prejudicial when considered collectively than when considered individually.
VII
Section 654
Section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Defendant contends that the trial court violated this proscription by imposing sentences for aggravated kidnapping and the two resulting sex offenses. Citing cases such as People v. Latimer (1993) 5 Cal.4th 1203, defendant asserts that because the kidnapping was for the purpose of committing the sexual offenses, the course of conduct was indivisible and the court should have stayed execution of sentence on all but the kidnapping count. We disagree.
“‘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.]’ [Citation.]” (People v. Coleman, supra, 48 Cal.3d at p. 162.)
The trial court could properly conclude here that multiple punishment was appropriate because defendant had separate intents and objectives. When defendant picked up the victim to carry her to the wooded area, he told Branson, “[L]et’s go fuck her.” He left the area and went back to his apartment to get condoms, telling Daniel R. en route that “We’re getting ready to fuck some bitch.” This evidence supports an inference that defendant kidnapped the victim with the intent to rape her.
But that is not what happened. Defendant did not rape the victim himself, but instead aided and abetted Branson as Branson assaulted the victim. The assault did not occur immediately after the kidnapping, but only after defendant returned to the scene with condoms. Defendant also committed an entirely different offense by inserting his finger in the victim’s vagina.
Section 654 does not preclude multiple punishment under these circumstances. There was no sentencing error.
VIII
Parole Revocation and Restitution Fines
In imposing sentence, the trial court ordered that defendant “pay a $1,000 restitution fine on Count Two [rape], a $1,000 restitution fine on Count Three [digital penetration], and a $10,000 restitution fine on Count One [aggravated kidnapping] pursuant to Penal Code section 1202.4 for a total of $12,000.” The abstracts of judgment reflect a parole revocation fine of the same amount.
Defendant contends, and the People concede, that these fines must be reduced to a $10,000 restitution fine and a $10,000 probation revocation fine. We agree.
Section 1202.4, subdivision (b) provides that a restitution fine must be imposed “[i]n every case where a person is convicted of a crime” (italics added) and must be set in an amount of “not less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000).” Section 1202.45 requires the court to assess a parole revocation fine in the same amount.
““[T]he maximum [restitution] fine that may be imposed in a criminal prosecution is $10,000 “regardless of the number of victims or counts involved.” [Citation.]’ [Citation.]” (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.)
Defendant was convicted of three offenses, all tried in one case. Under section 1202.4, the maximum authorized fine is $10,000. We therefore modify the judgment to reflect a restitution fine of $10,000 and a parole revocation fine of the same amount. (See People v. Blackburn, supra, 72 Cal.App.4th at p. 1534.)
IX
Imposition of Upper Term
Defendant contends the court’s imposition of the upper term violated his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. (Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) We disagree.
In Blakely, the United States Supreme Court held that any circumstance “‘[o]ther than the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412]) that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Id. at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413].) In Cunningham, the United States Supreme Court concluded that the middle term is the statutory maximum under California’s determinate sentencing scheme absent proper proof of other factors. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
However, in People v. Black (2007) 41 Cal.4th 799 (Black), decided subsequent to Cunningham, the California Supreme Court held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.) This is so because “[u]nder California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.) The court also held that the exception to the requirement for a jury trial for “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412]) “include[s] 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,” such as whether those convictions are numerous or of increasing seriousness. (Black, supra, at p. 819.)
The probation report prepared for defendant’s sentencing in the present case outlined various aggravating factors, including defendant’s prior juvenile and adult record. This record reflected 11 felony and misdemeanor offenses between 1996 and 2002, including possession or manufacture of an incendiary device, various drug offenses, driving while intoxicated, burglary, vehicle theft, receiving stolen property, and unlawful sexual intercourse.
Citing California Rules of Court, rule 4.421(b)(2), the trial court explicitly listed defendant’s criminal history as a factor justifying the imposition of the upper term. Under Black, the court could properly consider this factor without a jury finding. There was no error in imposing the aggravated sentence.
Disposition
The judgment is modified to reflect a restitution fine of $10,000 and a probation revocation fine of $10,000. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstracts of judgment to reflect these modifications and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: MORRISON, Acting P.J., CANTIL-SAKAUYE , J.