Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC256280
ELIA, J.This case comes to this court for a third time. Following this court's reversal of appellant's first and second convictions, appellant Sterling Brown was again tried on a third amended information, which charged him with making criminal threats (Pen. Code, § 422, count one); false imprisonment (§ 236-237, count two); rape (§ 261, subd. (a)(2), count three); and forcible oral copulation (§ 288a, subd. (c)(2), count four). The information alleged that appellant had one prior serious felony conviction within the meaning of sections 1170.12 and 667, subdivision (a), which was, in addition, a strike within the meaning sections 667, subdivisions (b)-(i) and 1170.12, and had served four prior prison terms within the meaning of section 667.5, subdivision (b).
All undesignated statutory references are to the Penal Code.
On May 28, 2008, a jury found appellant guilty on all counts. Appellant waived jury trial on the prior conviction and prior prison term allegations. Subsequently, appellant admitted the prior prison term allegations, but challenged that his prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) in case number 191394, was a strike. Subsequently, the court found that this conviction was a strike based on a finding that appellant had personally inflicted great bodily injury on the victim.
On February 26, 2009, the court denied probation and sentenced appellant to 27 years, eight months in state prison. The court chose count three (rape) as the principal term and imposed the midterm of six years doubled pursuant to sections 667, subdivisions (b)-(i) and 1170.12, for a total of 12 years. As to the remaining counts, the court imposed consecutive terms of one-third the midterm doubled-that is one year, four months for count one (criminal threats), four years for count four (forcible oral copulation), and one year, four months for count two (false imprisonment). In addition, the court imposed a consecutive five-year term pursuant to section 667, subdivision (a) for the prior serious felony conviction and four consecutive one-year terms pursuant to section 667.5, subdivision (b) for the four prior prison terms. The court imposed various fines and fees, which we detail later.
Appellant filed a timely notice of appeal on March 26, 2009.
On appeal, appellant raises five issues. First, he contends that the prosecutor committed misconduct in disclosing his criminal background to the jury. Second, the court prejudicially erred when it misstated CALCRIM No. 225 on circumstantial evidence of intent or mental state. Third, the court violated the prohibition against double jeopardy when it imposed additional fines and fees following his appeal and retrial. Fourth, the court erred in failing to stay, pursuant to section 654, the term imposed for false imprisonment. Finally, the cumulative effect of the foregoing errors requires reversal of the judgment.
For reasons that follow, we strike two of the additional fines that the court imposed and stay the sentence on count two pursuant to section 654; as so modified, we affirm the judgment.
Facts
The issues raised on appeal render a detailed recitation of all the testimony adduced at retrial unnecessary other than to note the following. Appellant and Yvonne met at "Toons" nightclub in downtown San Jose on Monday July 22, 2002. Yvonne was with her friend Stacey at the club. Yvonne gave appellant a ride home. Stacey needed to use the rest room so they went into appellant's apartment. Before Yvonne left, she exchanged telephone numbers with appellant. They kissed, but because Yvonne pushed appellant away, he gave Yvonne a "hickey" on her neck. On Tuesday, Yvonne and appellant talked on the phone. On Wednesday and Thursday nights of that week, Yvonne visited appellant's apartment; they had consensual intercourse and performed oral sex on each other. After they had intercourse on Thursday, Al, appellant's friend or cousin arrived at appellant's apartment. Appellant started to call Yvonne "a bitch, a ho, a slut." He told Yvonne that he was "going to put [her] out on San Pablo Avenue and pimp [her] out." Yvonne did not spend the night. Before she left to give Al a ride home, appellant apologized for his behavior.
We refer to Yvonne by her first name to protect her identity, no disrespect is intended.
After talking to appellant during the day on Friday, later, Yvonne and Stacey went to appellant's apartment in order for Al to meet Stacey. They arrived at the apartment around midnight. Appellant was not there. Al arrived just as Yvonne and Stacey arrived. Stacey wanted some beer so Yvonne drove to the 7-Eleven. On the way, they noticed appellant walking so they bought him beer. When they got back to the apartment appellant was there. Appellant appeared intoxicated. Appellant, Al, Stacey and Yvonne sat and talked and listened to music. Appellant drank beer, but Yvonne did not. Appellant became "very angry and disrespectful." According to Yvonne, "One minute he would sit there and say stuff to [her] that was disrespectful. [She] would turn around and... would turn back and he would have a smile on his face. So his moods fluctuated from seeming angry and mad to 'I'm just joking about it'...." Yvonne clarified that appellant called her the same names as before "... a bitch.... a ho.... a slut." This made Yvonne scared.
At around 4 a.m., Yvonne left to drive Stacey and Al to their respective homes because Stacey had people waiting for her at her apartment and Al had to go to work. At some point, Al realized he had left his cell phone at appellant's apartment so after Yvonne dropped Stacey at home, she returned to appellant's apartment with Al.
When they arrived at appellant's apartment, Al went around to a side window where appellant's room was located. Yvonne stayed in the car on the driveway with the motor running. When appellant came outside, he told Yvonne to "park the car. Park the fucking car, bitch." Yvonne got out of the car. She felt intimidated. As Yvonne walked down the hallway, appellant shoved her. Yvonne asked appellant if he was going to hit her and appellant replied, " 'No. That's just the beginning.' " Appellant was angry and Yvonne became very scared.
Al and appellant argued in appellant's apartment over the cell phone. At one point, appellant looked at Yvonne and told her " 'get your shit and leave. You're dismissed.' " As Yvonne went to get up, appellant grabbed her around the neck and slapped her twice "dead center in the middle" of her face. Appellant hit Yvonne in the face so hard she fell back on the bed; appellant told her " 'Bitch, you don't fucking know me. You don't know what I'm fucking capable of.' " Yvonne explained that appellant had mentioned he "had a nine-millimeter in the closet." Yvonne was bleeding from her mouth and nose. Yvonne tried to go to the bathroom, but appellant prevented her from getting up. Instead he threw her a towel. Eventually, appellant let Yvonne use the bathroom, but followed her into the bathroom. Appellant apologized to Yvonne and told her it was part of "growing pains" and she had "to learn to respect him." Appellant told her it would not happen again. Appellant tried to kiss her, but she said she had blood in her mouth. When they went back to appellant's room, Al said that he was going to leave. Appellant told Al, " 'You have to leave. You have to leave. I have to make things right with her.' " As Al started to walk down the hallway, Yvonne followed him because she wanted to leave. Appellant told Yvonne she was staying the night. Yvonne told appellant she wanted to go home. Yvonne went to her car and retrieved her purse. As she was standing outside with appellant, he apologized "profusely" and told Yvonne it would never happen again.
Appellant ordered Yvonne to go into the apartment. When they got to appellant's room, he ordered Yvonne to lie on the bed. At this time, appellant was sitting in the corner of the room laughing and saying " 'My kids are going to drive you fucking crazy.' " He told Yvonne her new name was "Mrs. Brown." Yvonne was scared.
Appellant pulled out his penis and told Yvonne to orally copulate him. Yvonne told him no. Appellant told Yvonne to put a condom on him as he was " 'not about to catch AIDS behind some bitch.' " Yvonne put the condom on appellant and he took off her pants and underwear. Yvonne was scared and complied because she was afraid if she did not appellant would hurt her even more. At this point, Yvonne was crying. Appellant got on top of Yvonne and had intercourse with her. Although Yvonne did not cry out, she tried to push appellant away. After appellant ejaculated, "he went down to [Yvonne's] vaginal area and he licked [Yvonne] two times... and said, 'I'm not going to make you come until you're Mrs. Brown.' " As they were lying on the bed with appellant against the wall, he put his arm around Yvonne's neck and intertwined his legs with hers. After a few minutes when Yvonne realized that appellant had passed out she threw his hand off her, got dressed, grabbed her stuff and left. She went to a pay phone to call Stacey, but she could not reach her. Thereafter, she went to Stacey's apartment. When Stacey opened the door, she told Stacey " 'He raped me and he hit me like a fucking man.' "
Discussion
Alleged Prosecutorial Misconduct
In People v. Brown, H029123, we reversed appellant's convictions on the ground that the admission of the testimony of one of the prosecution witnesses that appellant had just been released from prison was prejudicial error. On retrial, the prosecutor assured the trial court that he would remind the witness "not to say that the defendant is on parole or that the defendant has been in prison or has been released from prison. [¶]... I will be extremely careful about how I question her so that she does not say that. [¶] I just have to say, if I think she's about to say that, I'll rush up and turn the microphone off or something. I just don't want her to say that. I'm aware of that." Defense counsel indicated that if it were to occur he would immediately move for a mistrial. The trial court admonished defense counsel, "make sure your questioning doesn't elicit that either."
We granted appellant's request to take judicial notice of our prior opinion in this case.
During the prosecution's direct examination, Yvonne testified that on the night she first met appellant, he made what she perceived were gang references by saying "Piru. Woo-woo. Nigga what.... MP Hoods." However, at the time she did not think he was in a gang because he seemed too old to be gang affiliated. Nevertheless, later, when appellant became "disrespectful, " Yvonne thought appellant might have some gang affiliation.
On cross-examination, defense counsel showed Yvonne a copy of some of her preliminary hearing testimony and asked her to review "page 30, lines 19 through 22." Thereafter, Yvonne indicated that this testimony revealed that although she had testified at the preliminary hearing that appellant had referred to "Norte, " she was not "sure whether or not he was gang affiliated" even after the preliminary hearing.
On redirect, the prosecutor asked Yvonne to read from her testimony given in appellant's 2003 trial regarding her conversation with another witness. The court permitted Yvonne to do so over defense counsel's hearsay and improper impeachment objections. Thus, Yvonne read the following testimony from the trial transcript. "I told her what had happened. I said, you know, I don't know what to do. I'm scared because I really have a strong feeling he's gang affiliated. I'm afraid if I call the police and he gets arrested, two days later he is arraigned. I had no idea of his criminal background and had a feeling --"
Immediately, defense counsel objected and asked to approach the bench. The following occurred at sidebar:
"[Defense counsel]: Judge, with all due respect to [the prosecutor], who I respect, I think he is engaging in intentional prosecutorial misconduct here. [¶] The whole idea behind the two appeals of this case has been information - - his criminal record, his probation [sic] status. He has directed this witness to read a portion of [the] transcript where she refers to his criminal background. He is inviting error in this case. [¶] First of all, the first appeal was reversed because of mention of his probation [sic] status. To go into criminal background, knowingly, is exactly and precisely the same thing and invites the jury to speculate. Somehow - - criminal past is completely objectionable. I think it constitutes prosecutorial misconduct.
Defense counsel was incorrect in making this assertion. In the first appeal in this case this court reversed appellant's conviction because of inadequate Miranda warnings. We have taken judicial notice of this court's unpublished opinion in case number H026138.
"[The prosecutor]: My response to that is, with all due respect, which is what someone says when they're going to say something disrespectful, I completely disagree. This is 356 Evidence Code, which is why I'm bringing the statements in to put in context. When defense counsel yesterday - - I have a number of statements like this - - picks out a line, under Evidence Code 356, I'm entitled - - this is a question about gang affiliation. And error - - this is, by the way, from the first trial transcript. Her quote is 'I told her what happened. I said, you know, I don't know what to do. I'm scared because I really have a strong feeling he is gang affiliated. I'm afraid if I call the police [and he gets arrested], two days later - - I had no idea of his criminal background. And I had a feeling if I saw him driving down the street, he was going to hurt me even more.' [¶] What I've instructed this witness, in order to comply with the Court of Appeal's decision, was never to say 'probation, ' never to say 'parole, ' never to say 'prison.' Okay. [¶] She is saying I have no idea what his guy is capable of. That's not saying that he has a criminal history or criminal background. There is no evidence that's being introduced like that in this particular case.... [¶] If the court believes that that is objectionable, okay, and shouldn't come in, then we simply move to strike it. [¶] The problem that happened with the second decision is Judge Condron said that statement could come in - - parole and prison could come in for limited purpose. I think if there is a remedy - - and I don't think there is - - simply to strike that, I can move on to page 165 of this transcript where she explains the problem to how she felt about the - - being involved in gangs. That's the solution. I do not believe that her saying, 'I was afraid because I had no idea of his criminal background' is a totally ambiguous statement. She has no idea. The jury is not given any information in this case whether he does or doesn't have criminal -
"[Defense counsel]: We're both experienced attorneys. We know the damage is done once the jury hears it. [The prosecutor] knows he wanted the jury to hear that. He wanted the jury to hear that part that said, 'I had no idea of his criminal background.' There is no other way to take that.
"The Court: Well, reasonable minds could differ in terms of that interpretation. So your objection is noted. It's overruled."
However, the court went on to ask the prosecutor the purpose of having Yvonne read verbatim from the transcript. The prosecutor explained that the evidence was being offered under Evidence Code section 356 because certain things were left out of the trial transcript when defense counsel cross-examined Yvonne regarding her testimony on page 90 of the first trial transcript. The prosecutor indicated that what was left out "is counsel left impression [sic] and asked her many times on cross-examination you really weren't afraid of him." The prosecutor continued, "Judge, what I would suggest, in [an] abundance of caution, would be to strike her previous answer." The court agreed to do what the prosecutor suggested and strike part of Yvonne's answer.
The court informed the jury that defense counsel's objection was sustained and that the court was striking all of Yvonne's previous answer. At the request of defense counsel, the court admonished the jury to disregard the answer.
Subsequently, during pre-deliberation instructions, the court told the jury that if the court had struck testimony from the record, they must disregard it and must not consider that testimony for any purpose.
Later, the prosecutor sought to put on the record "a brief discussion" that had occurred "on Thursday out in court... that wasn't on the record." The court stated that the discussion had been put on the record, but if the prosecutor wanted to do it again, the court would be "happy to do it." The prosecutor explained again that he was having Yvonne read "under Evidence Code section 356" from proceedings that had occurred in January 2003 to put Yvonne's testimony into context. The prosecutor stated that defense counsel had "made the motion for a mistrial" and "also said it was prosecutorial misconduct because after the second trial the case was reversed because Candace Ventra said the victim was afraid of the defendant for, among other reasons, he had just gotten out of prison." Again, the prosecutor asserted that he "thought the statement was admissible, and also not violative of any in limine motions" because the statement was "not asserting that the defendant has a criminal background or prior convictions."
Although the clerk's transcript indicates that there were discussions outside the presence of the jury on Thursday, May 22, to "discuss scheduling, " the reporter's transcript for Thursday, May 22, does not contain any of those discussions.
The prosecutor went on to explain that he asked the court to strike Yvonne's testimony, which the court did. The court asked defense counsel if he had any comment. Defense counsel stated, "Yes, your honor. [¶] Your honor, I just note for the record we had initially objected when she started to read from the transcript. So I think we preserved the record in that way. And we objected when the portion that came up regarding criminal - -I submit based on previous objections at the bench and in court." The court indicated that the "record will speak for itself. And I think I indicated, as we all had put on the record, that my interpretation of that comment that Yvonne made, as [the prosecutor] stated, it's not a positive statement, he had a criminal background and she didn't know about it, and gang affiliation. [¶] So that was a factor that she considered in terms of her level of fear. That's the way I interpreted it. That's the - - the reason I overruled your objection, but later on struck the testimony pursuant to the request of [the prosecutor]."
As noted, defense counsel objected on the ground of "improper impeachment" and hearsay.
Appellant contends that the prosecutor's disclosure to the jury of his criminal background was prejudicial misconduct. He argues that it is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order.
Certainly, "it is misconduct to elicit or attempt to elicit inadmissible evidence in violation of a court ruling. [Citation.]" (People v. Silva (2001) 25 Cal.4th 345, 373.) However, "[c]onduct by a prosecutor that does not violate a court ruling is misconduct only if it amounts to 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury' [citations] or 'is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citation.]" (Ibid.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.)
Appellant contends that the statement that Yvonne read to the jury at the prosecutor's request disclosed his criminal history in violation of both the trial court's in limine ruling and this court's prior holding. Thus, he argues the prosecutor's actions were misconduct.
We point out that there was no order from this court that the prosecutor could violate. Section 1260 provides that in a criminal appeal: "The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances." Section 1262 provides in part that "If a judgment against the defendant is reversed such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct." Here we did not otherwise direct. After the remittitur "the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted." (§ 1265, italics added.) Thus, the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court. Here, by implication, all we ordered was a new trial. Thus, it was for the trial court to set the terms of that retrial and it was incumbent on defense counsel to seek any in limine rulings that he sought fit.
Appellant asserts, "[n]otwithstanding the prosecutor's protestations to the contrary, the proffered evidence clearly informed the jury that [he] had a criminal history." He continues, the "truncated version" of Yvonne's statement that the jury heard carried "sufficient information to convey the... objectionable message that [he] had a criminal history" and the disclosure to the jury was misconduct by the prosecutor.
Appellant argues that the expression "I had no idea" is used "in common speech to express a state of ignorance about a fact that one later becomes aware of. The reference to [his] criminal history is not contained in an assertion regarding [Yvonne's] state of mind at the time of the alleged offense and it does not tend to prove that [Yvonne] thought [he] was a gang member as the prosecutor contended. While the jury did not hear what specific result [Yvonne] feared if she called the police, the statement as heard by the jury conveyed the information that [Yvonne] feared calling police and that this fear was made plausible by the fact that, although [he] had a criminal history, she did not know about it at the time. The trial court's finding that 'reasonable minds could differ' on the interpretation of the disclosure supports the conclusion that it is reasonably likely that some or all of the jurors understood the disclosure to mean that [he] had a criminal background."
We agree with appellant. Notwithstanding the trial court's assertion that reasonable minds could differ in terms of defense counsel's interpretation of the meaning of the phrase at issue here, we have no doubt that a reasonable juror could infer from the phrase "I had no idea of his criminal background" that appellant had a criminal background that Yvonne did not know about at the time, but of which she later learned.
In asking Yvonne to read the statement she made during a prior hearing in which she said "I had no idea of his criminal background, " the prosecutor violated the trial court's implied in limine ruling, and, whether done intentionally or not, committed misconduct. (People v. Friend (2009) 47 Cal.4th 1, 31.)
Although the court did not directly order the prosecutor not to elicit any testimony about appellant's criminal background, we infer from the court's order to defense counsel to "make sure your questioning doesn't elicit that either, " that the court was ruling inadmissible any testimony regarding appellant's criminal background.
Nevertheless, we conclude that the misconduct was harmless.
Although exposing a jury to a defendant's prior criminality can prejudice the defendant's case (People v. Harris (1994) 22 Cal.App.4th 1575, 1580), an admonition to disregard the evidence can cure the prejudice. (People v. Avila (2006) 38 Cal.4th 491, 573; People v. Valdez (2004) 32 Cal.4th 73, 123.) Absent evidence to the contrary, we presume the jury follows a trial court's admonition to disregard evidence that the court strikes. (People v. Avila, supra, 38 Cal.4th at p. 574.)
Moreover, the oblique and fleeting reference to appellant's "criminal background" was not so outrageous or inherently prejudicial that the admonition to disregard it would have been ineffectual. (People v. Jennings (1991) 53 Cal.3d 334, 375.) The jury was not directly told that appellant had a criminal background, or the composition of that background. Rational jurors who were instructed to disregard Yvonne's testimony could not reasonably have speculated that appellant had an extensive criminal history. After the court struck the testimony, the jury heard no more about it; the subject was not referenced in any way during closing argument. It is as likely as not that Yvonne's testimony "I had no idea of his criminal background" had passed from the jurors' minds by the time they began deliberations.
The excluded statement in this case is far less troublesome than the inflammatory statement at issue in appellant's previous appeal-that he had just been released from prison, which was admitted in his previous trial albeit for a limited purpose, and which carried with it the implication that appellant had committed serious crimes in the past. The statement in this case is not of a similar nature or effect. Accordingly, we conclude that any harm from the statement was cured by the trial court's admonition to the jury to disregard the testimony.
Finally, appellant contends that the trial court erred by denying his motion for mistrial. We point out that although defense counsel objected to Yvonne's testimony on the ground of prosecutorial misconduct, he did not move for a mistrial on that ground. Furthermore, the trial court had no duty to declare a mistrial on its own motion. Nor could the court take defense counsel's request for an admonition as evidence that appellant would consent to a mistrial. As we shall explain, this is so because once a jury trial has commenced and jeopardy has attached, the court may not declare a mistrial on its own motion unless there is a legal necessity or the defendant consents. (Curry v. Superior Court (1970) 2 Cal.3d 707, 712, 717-718 (Curry).)
Certainly, after the verdict, defense counsel moved for a new trial, but his "sole contention" was that the prosecutor committed misconduct in rebuttal argument because his comments "shifted the burden of proof on the issue" of the SART nurse's testimony and "raised the issue of gang membership which was precluded during in limine motions." It appears that the prosecutor misspoke when he put on the record that defense counsel had moved for a mistrial when Yvonne made the statement at issue here.
California courts have held that an error in law or procedure, such as the erroneous admission of evidence, does not constitute a "legal necessity" for purposes of this rule. (Curry, supra, 2 Cal.3d at p. 714.) "In California, legal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity. [Citations]." (Id. at pp. 713-714.) A defendant's consent to a mistrial when there is no legal necessity is not evidenced by his or her request for an admonition. Consent must be shown by affirmative conduct, such as initiating or joining a motion for mistrial. (Id. at p. 713.) A defendant's affirmative consent to a mistrial normally amounts to a waiver of the prohibition against double jeopardy; if a mistrial is then declared the prosecution may proceed to retry the defendant. For this or other tactical reasons, a defendant may choose not to move for mistrial even when a palpably prejudicial error has occurred. (Id. at p. 717.) Thus, even if we were to assume that prejudicial error occurred, and appellant, as here, requested an admonition but did not move for a mistrial, the court could not declare a mistrial on its own motion unless it first obtained appellant's affirmative consent. Otherwise, the court, in the name of a paternalistic concern for appellant's welfare, would deprive appellant of his constitutionally protected freedom to choose. (Ibid.)
Curry concerned double jeopardy, an area of law in which the courts have deliberately declined to impose a duty upon the defendant to forewarn the trial court of legal error that will permit the defendant to assert the defense of double jeopardy in subsequent proceedings. It is because a defendant has no obligation to alert the trial court that it is about to err in a manner that sets up a double jeopardy defense that a defendant's silence does not constitute waiver or consent when the court declares a mistrial without legal necessity. (Curry, supra, 2 Cal.3d at p. 713.)
Accordingly, here, the real question is should the trial court have obtained appellant's consent to a mistrial. For reasons that follow, we answer this question in the negative.
Since we have found that any prejudice was cured by the trial court's admonition to the jury, necessarily, we must conclude that the trial court acted within its discretion in not declaring a mistrial and not seeking appellant's consent. Furthermore, for the same reason, even if we assumed that defense counsel made a mistrial motion, which never made it into the record, we conclude that the trial court acted within its discretion in not declaring a mistrial.
A mistrial should be granted "only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) "Irreparable damage" occurs whenever prosecutorial misconduct is judged to be " 'incurable by admonition or instruction. [Citation.]' " (People v. Wharton (1991) 53 Cal.3d 522, 565.) Whether any prejudice is incurable is a question on which the trial court has considerable discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.)
Instructional Error
Appellant contended at trial that he had a reasonable good faith belief that Yvonne had consented to the sexual conduct with which he was charged. Accordingly, the trial court instructed the jury with CALCRIM No. 225. In so doing, however, the court misspoke. Thus, the jury was told that the "People must prove not only that the defendant did the acts charged, but also he acted with a particular intent and/or mental state. [¶] The instructions for each crime explain intent or mental state required. [¶] Intent or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find a defendant guilty has been proved, you must be convinced that the People have proved each act essential beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. [¶] If you can draw two or more reasonable conclusions from circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did not [verbatim] have a required intent or mental state, and another reasonable conclusion supports a finding the defendant did not, you must conclude the required intent, mental state was not proved by circumstantial evidence. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (Italics added.)
Appellant contends and respondent agrees that the trial court made a misstatement during the reading of CALCRIM No. 225. We agree because the above italicized language should read "did." Where appellant and respondent disagree is why this misstatement was harmful to appellant.
Appellant argues that the trial court's reading of the circumstantial evidence instruction erroneously informed the jury that to return a verdict of acquittal in a case where there are two or more conclusions reasonably drawn from circumstantial evidence, it must find that all, or at least two of the conclusions support a finding that the required intent had not been proven. The trial court stated correctly the requirement that to support a guilty verdict the jury had to find that the only reasonable conclusion supported by the evidence was that appellant had the required intent or mental state. However, the next sentence of the instruction addressed the case of two or more reasonable conclusions and permitted an acquittal only where both conclusions supported a finding that appellant did not have the alleged mental state. Thus, appellant argues, the instruction conveyed to the jury the contradictory requirements that to convict they must find there was only one reasonable conclusion pointing to guilt, but to acquit, they must find two or more reasonable conclusions pointing to innocence.
"When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.)
Furthermore, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record. (People v. Haskett (1990) 52 Cal.3d 210, 235.)
Recently, our Supreme Court explained, however, that "[t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. 'We of course presume "that jurors understand and follow the court's instructions." [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.' [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 200-201.)
Here, the jury was given the correctly worded instructions in written form. The record indicates that each juror had a copy of the written instructions to use in the jury room. We must presume that they were guided by those copies. (People v. Osband (1996) 13 Cal.4th 622, 687.) Furthermore, the error here was so obvious that we do not find it reasonably likely that the jurors misapplied or misconstrued the law in the way that appellant contends.
In essence, the oral instruction told the jury that if there were multiple reasonable views of the evidence (two or more) and two pointed towards appellant not having the required intent/mental state they must conclude that appellant did not have the required intent/mental state. However, the oral instruction told the jury that before they could rely on circumstantial evidence to conclude that appellant had the required intent/mental state they must be convinced that the only reasonable conclusion supported by the evidence was that appellant had the required intent/mental state. So, even if the jury was faced with multiple reasonable views of the evidence (two or more) and only one pointed towards appellant not having the required intent/mental state and the rest did, they would not have been able to rely on this circumstantial evidence to conclude appellant had the required intent/mental state because then they would not be able to say that the only reasonable conclusion supported by the evidence was that appellant had the required intent/mental state.
The oral instruction does not, as appellant asserts, tell the jury they can acquit only if two reasonable conclusions point to appellant not having the required mental state.
Accordingly, we find no error here that could possibly have prejudiced appellant.
Double Jeopardy
Appellant's trial followed two reversals on appeal. At sentencing, the trial court imposed the following fines and fees, which had not been imposed at appellant's original sentencing hearing.
We granted appellant's request to take judicial notice of the abstract of judgment from his first trial.
The court imposed (1) a fine of $300 pursuant to section 290.3 plus a penalty assessment of $510 pursuant to section 1464 and Government Code section 76000; (2) a fine of $70 pursuant to section 288a, subdivision (m) plus penalty assessments of $129.5; and (3) a fee of $129.75 pursuant to Government Code section 29550.2, subdivision (a).
At the time of the appellant's offenses, section 290.3, subdivision (a) provided in pertinent part, "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Stats. 1995, ch. 91, § 121.) Section 1464, subdivision (a)(1) provided, "Subject to Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, there shall be levied a state penalty in an amount equal to ten dollars ($10) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses...." (Stats. 2000, ch. 248, § 1, eff. Aug. 28, 2000.) Government Code section 76000, subdivision (a) provided, "In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses...." (Stats.1997, ch. 850, § 40.) Section 288a, subdivision (m) provided that the court "may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision." (Stats.1998, ch. 936, § 5, eff. Sept. 28, 1998.) Government Code section 29550.2, subdivision (a) provided, "Any person booked into a county jail pursuant to any arrest by any governmental entity not specified in Section 29550 or 29550.1 is subject to a criminal justice administration fee for administration costs incurred in conjunction with the arresting and booking if the person is convicted of any criminal offense relating to the arrest and booking. The fee which the county is entitled to recover pursuant to this subdivision shall not exceed the actual administrative costs, as defined in subdivision (c), including applicable overhead costs as permitted by federal Circular A 87 standards, incurred in booking or otherwise processing arrested persons. If the person has the ability to pay, a judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt." (Stats.1997, ch. 47, § 2.)
Appellant contends that the imposition of these fines and fees are barred by the principles of double jeopardy and violative of due process.
Appellant's claim is cognizable on appeal even though he failed to object to the imposition of the fines and fees below. "[A] [d]efendant's failure to object does not preclude his arguing on appeal that he was placed twice in jeopardy. [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5.)
Respondent concedes that as to the section 288a fine and the section 290.3 fine, appellant is correct. However, with regard to the criminal justice administration fee of $129.75, double jeopardy concerns are not implicated and the fee must stand.
It is well established that "[w]hen a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing." (People v. Hanson (2000) 23 Cal.4th 355, 357 (Hanson).) In Hanson, the question was whether a statutorily mandated restitution fine came within this rule. The Supreme Court concluded such a fine constituted punishment and found no principled basis for excluding it from double jeopardy principles. (Id. at p. 357.)
In reaching this conclusion, the Hanson court considered whether, as a matter of statutory construction, the Legislature intended restitution fines to constitute punishment. Including numerous references to the Penal Code, the Hanson court's analysis proceeded as follows: "To begin, restitution fines are imposed only upon conviction of a criminal offense. (See § 1202.4, subd. (a).) Although originally enacted as part of the Government Code, the operative statute is now contained in the Penal Code (§ 1202.4...), which expressly denominates 'fines' as 'punishments.' (§ 15; see §§ 17, subd. (b), 18, 19, 19.6, 19.8....) Section 1202.4, subdivision (a)(3), provides that restitution fines are distinct from restitution orders and are 'in addition to any other penalty....' [Citation.] [¶] Several other features of the statute compare with the imposition of criminal punishment generally. Except for 'compelling and extraordinary reasons, ' which the trial court must state on the record (§ 1202.4, subd. (c)), a restitution fine is mandatory even in the absence of a crime victim (§ 1202.4, subd. (a)(3)(A)) and must be made a condition of probation, if granted (§ 1202.4, subd. (m)). As with other types of fines, the money is deposited into the state treasury; it is earmarked for the Restitution Fund, which enables the state to compensate victims of crimes. (§ 1202.4, subd. (e)....) The amount varies in the trial court's discretion--ranging from a minimum of $200 to a maximum of $10,000 (§ 1202.4, subd. (b)(1))--and may be calculated by multiplying $200 by the years of imprisonment imposed and then multiplying by the number of counts. (§ 1202.4, subd. (b)(2).) In addition, the court 'shall consider any relevant factors including... the seriousness and gravity of the offense and the circumstances of its commission... and the number of victims involved in the crime.' (§ 1202.4, subd. (d).) 'A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine.' (§ 1202.4, subd. (c).)" (Hanson, supra, 23 Cal.4th at pp. 361-362.) Thus, the Hanson court's conclusion was that "the Legislature intended restitution fines as a criminal penalty rather than as a civil remedy." (Id. at p. 362.)
Guided by the Hanson court's analysis, we conclude that both the section 288a fine and the section 290.3 fine are punishment. Both fines are imposed only upon conviction of a criminal offense (§§ 290.3, subd. (a) [sex crimes in general], 288a, subd. (m) [oral copulation specifically]). Both fines are contained in the Penal Code, "which expressly denominates 'fines' as 'punishments.' " (Hanson, supra, at p. 362.) As to the section 290.3 fine, it is mandatory and in addition to any imprisonment or fine or both. (§ 290.3, subd. (a).) Although the section 288a fine is not mandatory, it may be imposed in addition to "any punishment imposed under [section 288a]." (§ 288a, subd. (m).)
While, in contrast to a restitution fine, the court "shall" take into consideration a defendant's ability to pay the section 288a fine and shall impose the section 290.3 fine "unless the court determines that the defendant does not have the ability to pay" (§§ 288a, subd. (m), 290.3, subd. (a)), we believe that because historically fines have been considered part of the punishment for double jeopardy purposes (Jeffers v. United States (1977) 432 U.S. 137, 154-155), both fines are punishment and their imposition in this case violates double jeopardy principles.
As to the criminal justice administration fee (Gov. Code, § 29550.2), obviously it is not in the Penal Code. Government Code section 29550.2, is located among other civil statutes and provides that execution shall be issued on the order of reimbursement "in the same manner as a judgment in a civil action." (Gov. Code, § 29550.2, subd. (a).) This section was enacted in 1992 as part of a bill addressing California's then-existing fiscal crisis. (Stats. 1992, ch. 696, § 20, pp. 3007-3008.) At the same time as it enacted Government Code section 29550.2, the Legislature added numerous provisions to various codes allowing for the collection of fees by government agencies to help offset the cost of services provided. (Stats. 1992, ch. 696, § 4 et seq., p. 3003 et seq.) Without regard to the nature or severity of their respective offenses, the fee is assessed against all convicted offenders, but is limited to the actual administrative costs incurred and is collected only if the convicted offender has the ability to pay.
"In assessing whether a statute imposes punishment, we inquire (1) whether the Legislature intended the sanction to be punitive and, if not, (2) whether the sanction is so punitive in effect as to prevent the court from legitimately viewing it as regulatory or civil in nature, despite the Legislature's intent. [Citations.]" (People v. Rivera (1998) 65 Cal.App.4th 705, 709 (Rivera).)
In Rivera, supra, 65 Cal.App.4th at pages 707-711, the court concluded that the criminal justice administration fee is not properly classified as punishment for ex post facto purposes.
As noted, the intent of the Legislature in enacting Government Code section 29550.2 was to address the then fiscal crisis. (Stats. 1992, ch. 696, § 20, pp. 3007-3008.) Government Code section 29550.2 "does not promote the traditional aims of punishment-retribution and deterrence-in the same way a restitution fine does. For example, requiring a convicted criminal to return ill-gotten gains to the victim serves as retribution and a deterrent by removing any profit from the crime. Requiring a convicted criminal to pay booking costs incurred as the result of the person's arrest does not have the same effect. Criminal justice administration fees are imposed not as retribution for what the convicted criminal has done to a victim and/or to society, but for his or her use of jail services as the result of criminal behavior." (Rivera, supra, 65 Cal.App.4th at p. 711.)
"As to the effect of the fees, their amount is not so excessive in relation to the stated purpose so as to prevent us from legitimately viewing them as nonpunitive in nature. Section 29550.2 specifically provides that the fees shall not exceed the actual administrative costs incurred in booking or otherwise processing those who are arrested and convicted. In effect, the statute imposes an administrative 'user' fee." (Rivera, supra, at pp. 710-711.)
Although Rivera was concerned with ex post facto principles, the analysis is identical for double jeopardy purposes. As the Hanson court outlined it, " 'Whether a particular punishment is criminal or civil [for purposes of double jeopardy] is, at least initially, a matter of statutory construction. [Citation.] A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." [Citation.]' [Citation.] An initial determination that the legislature did not intend to impose a criminal sanction does not end the inquiry, however, since a statutory scheme may be ' "so punitive either in purpose or effect" [citation] as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty" [citation].' [Citation.]" (Hanson, supra, 23 Cal.4th at p. 361.)
As can be seen, the intent of the Legislature was to address a fiscal crisis and not impose a criminal sanction. As to the effect of the fee, in making this determination "the United States Supreme Court has suggested that the factors listed in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169..., 'provide useful guideposts....' [Citation.]" (Hanson, supra, 23 Cal.4th at p. 361.) "These factors include '(1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"'; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." ' [Citation.]" (Ibid., fn. 4.)
The purpose of the criminal justice administration fee is to compensate local agencies for the administrative costs of arresting and booking individuals, which does not involve an affirmative disability or restraint, and which has not historically been regarded as punishment. The fee does not require a finding of scienter, and the statute makes no mention of scienter. In contrast to a fine, the fee is not expressly and statutorily defined as punishment. The fee has only a minimal element of deterrence. Furthermore, since the fee is limited to actual and demonstrated administrative costs, it cannot be condemned as excessive to the stated purpose of compensation.
Based on the foregoing, we conclude that the criminal justice administration fee is not punishment, and therefore, is not subject to double jeopardy principles. In light of this conclusion, there was no constitutional impediment to the imposition of the criminal justice administration fee made at appellant's sentencing.
Section 654Appellant was sentenced to consecutive terms on all four counts. During sentencing, the court indicated that it was imposing consecutive terms based on a determination that appellant "had time to reflect."
The court framed the issue concerning consecutive versus concurrent sentences as "did [appellant] have an opportunity to pause before he made his next decision and to act and make a decision on whether or not he was going to continue either the same kind of conduct or another type of conduct, in which overall was an assault against the victim in this case."
Appellant contends that the court erroneously imposed a consecutive sentence on count two, false imprisonment, and that term should be stayed pursuant to section 654.
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The statute prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of conduct constitutes a single act within the meaning of section 654 depends upon the "intent and objective" of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of the offenses were incidental to, or were the means of accomplishing or facilitating one objective, the defendant may receive only one punishment. (Ibid.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes shared common acts or were part of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
The question of whether a defendant harbored a "single intent" for purposes of section 654 is a factual determination to be made by the sentencing court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. (People v. Green (1988) 200 Cal.App.3d 538, 543-544.)
Appellant argues that the false imprisonment was part of an indivisible course of conduct incident to one objective and intent to engage in sexual activity with Yvonne. The evidence shows that he sought to keep Yvonne with him only in connection with and during their sexual activity. Thus, he argues, the sole objective of the false imprisonment was the accomplishment of sexual acts. Any other apparent objective was merely incidental thereto.
Respondent points out that to succeed on this issue appellant must overcome two hurdles. First, he must show that the false imprisonment occurred closely enough in time and circumstance to the other crimes so as to form one occasion so as to avoid the mandatory consecutive provisions of the " 'three strikes' law." Second, appellant must show that the trial court's discretionary ruling under section 654 was incorrect by showing the false imprisonment was done for objectives "identical" to appellant's objectives in committing the sex crimes. Respondent contends that appellant cannot clear either of these hurdles.
As to the first of these hurdles, a defendant with one or more prior "strike" felonies within the meaning of the "three strikes" law is subject to consecutive sentencing as follows: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count...." (§ 667, subd. (c)(6).) This subdivision "clearly provides that consecutive sentencing is mandatory for any current felony convictions 'not committed on the same occasion, and not arising from the same set of operative facts.' " (People v. Hendrix (1997) 16 Cal.4th 508, 512.) Conversely, "if two current felonies either were committed on the same occasion or do arise from the same set of operative facts, the three strikes law does not mandate consecutive sentencing; the trial court retains discretion to sentence either concurrently or consecutively. [Citation.]" (People v. Danowski (1999) 74 Cal.App.4th 815, 821.)
The statutory phrase "committed on the same occasion" refers to "at least... a close temporal and spatial proximity between the acts underlying the current convictions." (People v. Deloza (1998) 18 Cal.4th 585, 595.) Crimes arise "from the same set of operative facts" if common acts establish elements of each offense. (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
Respondent argues that the primary goal of the false imprisonment was to prevent the victim leaving the room so as to prevent her from reporting the crime; thus it arose from a different set of operative facts and was not committed on the same occasion. We cannot agree with respondent that the false imprisonment was not committed on the same occasion. The analysis for determining if section 667, subdivision (a)(6) "requires consecutive sentencing is not coextensive with the analysis for determining if section 654 permits multiple punishment." (People v. Deloza, supra, 18 Cal.4th 585, 595.) Spatially, all the crimes occurred in appellant's residence and temporally within a few minutes of each other. Therefore, the trial court retained discretion to impose either concurrent or consecutive sentences. Where "the three strikes law does not mandate consecutive sentencing, section 654 applies to sentencing under the three strikes law." (People v. Danowski, supra, 74 Cal.App.4that p. 824.)
As to the second of appellant's hurdles-showing the false imprisonment was done for objectives identical to appellant's objectives in committing the sex crimes- the prosecutor argued to the jury there are a "number of acts here of false imprisonment. After the defendant hits her, he wouldn't let her get off the bed and go the bathroom. Told her to 'sit her ass down.' Wouldn't let her leave the apartment and go home. She asked to do that many times. 'You're going to spend the night, ' he told her. She repeatedly told the defendant she wanted to go home. He would not let her. Finally[, ] he raped her and then held her in the bed."
Specifically, respondent argues that we can infer numerous objectives on appellant's part; first, after he hit Yvonne, he wished to keep her in the bedroom to avoid detection; next his interest turned to making up with her so that he could convince her to forgive him; then his interest turned to sexual gratification and he maintained Yvonne's "imprisonment" to satisfy his sexual desires; finally, after he sexual gratified himself he intertwined his legs around Yvonne's to stop her leaving and reporting what had happened.
Certainly with respect to any instance of false imprisonment that occurred before the forcible oral copulation and rape, appellant's intent and objective was to keep Yvonne with him so he could have sexual relations with her. We reject respondent's arguments to the contrary. Respondent is parsing appellant's objective "too finely." (People v. Britt (2004) 32 Cal.4th 944, 953)
Regarding the false imprisonment after the sexual assaults, in People v. Martinez (1980) 109 Cal.App.3d 851 , the defendant had been convicted of two offenses, assault with intent to commit rape and false imprisonment by use of force and violence. The defendant had assaulted his victim, dragged her under a bridge and after he desisted from his attempted rape, held her for a few moments to attempt to convince her not to complain to the police. The court held that these actions involved the same criminal event and, pursuant to section 654, only one sentence could be served for that sequence of events. (Id. at p. 858.)
Relying on People v. Foster (1988) 201 Cal.App.3d 20 (Foster), People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen) and People v. Saffle (1992) 4 Cal.App.4th 434 (Saffle), respondent argues that the trial court's implied finding of multiple criminal objectives was supported by substantial evidence and therefore section 654 is not implicated.
In Foster, supra, 201 Cal.App.3d 20, the court upheld multiple punishments for robbery and false imprisonment where the defendant and an accomplice robbed a convenience store and locked the clerks and a customer in the store's cooler. (Id. at pp. 23, 28.) The court rejected the defendant's claim that the false imprisonment was merely incidental to the robbery, explaining: "The imprisonment of the victims occurred after the robbers had obtained all of the money, and therefore was not necessary or incidental to committing the robbery. Locking the victims in the store cooler was potentially dangerous to their safety and health. It is analogous to a needless or vicious assault committed after a robbery, which has long been held separately punishable and distinguishable from an assault which is merely incidental to robbery." (Id. at pp. 27-28.)
In Nguyen, supra, 204 Cal.App.3d, the defendant and two accomplices robbed a store clerk. While the defendant remained at the store's till, one of his accomplices took the clerk into a back room, robbed him, forced him to lie on the floor, and then shot him. The defendant was convicted and sentenced for both robbery and murder. (Id. at pp. 185, 190.) The Court of Appeal found substantial evidence to support the trial court's finding of multiple criminal objectives. In response to the defendant's argument that section 654 barred multiple punishment because the clerk had been shot to eliminate him as a witness or to facilitate escape, the court said: "[A]t some point the means to achieve an objective may become so extreme they can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (Id. at p. 191.)
In Saffle, supra, 4 Cal.App.4th 434, the defendant, holding a knife, and having sexually assaulted the victim, forbade her to answer a knock at the door, which he believed to be the police. (Id. at p. 437.) On appeal, the court held that section 654 did not bar separate punishments for false imprisonment and the sex offenses. The court stated, "Here, once the sexual offenses were completed, Saffle's objective changed. He was no longer interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the incident." (Id. at p. 440.)
We find the aforementioned cases distinguishable. Respondent has relied on cases that in essence have held gratuitous acts of violence (locking the victims in the store's cooler in Foster, shooting the victim to eliminate him as a victim in Nguyen and holding a knife to the victim's throat in Saffle), against an unresisting victim, or an additional crime to facilitate escape or to discourage the reporting of a crime, may be grounds for separate punishment. The act of "restraint" here was incidental to the sex crimes. The record does not suggest that appellant passed out with his legs around Yvonne's to dissuade her from ever reporting his crimes. Moreover, passing out with his legs intertwined with Yvonne's legs had no reasonable tendency to dissuade her from reporting the incident or otherwise prevent her from ever so doing. On the contrary, she reported what happened after she freed herself.
In conclusion, we find no substantial evidence to support any implied finding by the court below that there were multiple objectives in the commission of the sex crimes and the false imprisonment. Accordingly, the court erred by failing to stay the prison term for the false imprisonment conviction.
Cumulative Error
Lastly, appellant claims the judgment must be reversed because of the cumulative prejudicial effect of all of the errors. We disagree. Since, with the exception of the erroneous imposition of two fines and the trial court's failure to suspend the prison term for count two, we find none of appellant's other claims of error meritorious and/or prejudicial, a cumulative error argument cannot be sustained. Appellant was entitled to a fair trial, not a perfect one. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.) This time, that is what appellant got.
Disposition
We strike the Penal Code section 290.3 fine and the Penal Code section 288a, subdivision (m), fine. The sentence on count two is stayed pursuant to Penal Code section 654. As so modified the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment reflecting these modifications and to forward a copy to the Department of Corrections and Rehabilitation.
WE CONCUR: PREMO, Acting P. J.McADAMS, J.