Opinion
G043646 Super. Ct. No. 06CF1572
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CARTER III, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Michael David Carter III of seven separate offenses: kidnapping to commit a sex offense (Pen. Code, § 209, subd. (b)(1) [count 1]); three counts of forcible rape (§ 261, subd. (a)(2) [counts 2, 3, and 8]); sodomy by force (§ 286, subd. (c)(2) [count 4]); forcible oral copulation (§ 288a, subd. (c)(2) [count 5]); and sexual penetration by a foreign object (§ 289, subd. (a)(1) [count 6]). Applying section 667.61 (the "One Strike" Law), the trial court sentenced defendant to 150 years to life in state prison. In a prior opinion, this court affirmed the judgment against defendant but remanded the case for resentencing. (See People v. Carter (Dec. 28, 2009, G040205) [nonpub. opn.] (Carter I).) We concluded "the court violated the ex post facto provision of our state and federal Constitutions by sentencing [defendant] under a version of section 667.61 that was not in effect at the time [defendant] committed the crimes" at issue.
All statutory references are to the Penal Code.
On remand, the trial court, now applying the correct version of section 667.61, again sentenced defendant to 150 years to life. Defendant appeals, claiming the court erred once more by sentencing defendant to consecutive 25 years to life sentences for crimes committed in "close temporal and spatial proximity." (See People v. Jones (2001) 25 Cal.4th 98, 107 (Jones).) We agree with defendant and remand once again for resentencing. The court appropriately imposed four consecutive sentences of 25 years to life on counts 2, 3, 6, and 8. Thus, at a minimum, defendant's sentence amounts to 100 years to life in state prison. But with regard to counts 4 and 5, the court should have sentenced defendant pursuant to other applicable law (not the One Strike law).
FACTS
Operative Information
The operative information accused defendant of committing eight separate counts against two 16-year-old victims, C.P. (counts 1 through 6, committed on or about Dec. 7-8, 2005) and J.D. (counts 7 and 8, committed Sept. 28-29, 2005). The eight counts alleged: (1) defendant kidnapped C.P. to commit sex offenses; (2) defendant forcibly raped C.P.; (3) defendant forcibly raped C.P. again; (4) defendant forcibly sodomized C.P.; (5) defendant forcibly orally copulated C.P.; (6) defendant committed an act of sexual penetration with a foreign object by force against C.P.; (7) defendant kidnapped J.D. to commit a sex offense; and (8) defendant forcibly raped J.D. The information did not specify the precise locations or timeline of the various offenses.
Evidence of Offenses Against C.P.
Defendant does not challenge his sentence with regard to count 8, his forcible rape of victim J.D. (defendant was acquitted of count 7). Thus, we limit our discussion of the evidence to the offenses against C.P. Rather than reinventing the wheel, we rely on our prior recitation of facts in Carter I.
"On December 7, 2005, then 16 year old C.P. took a bus from Huntington Beach to Santa Ana to meet her friend Marcos. Marcos and C.P. then went to a friend's house. About 20 minutes later, Carter arrived at the same house. Marcos and C.P. asked Carter to buy them beer and Carter complied. C.P. said she drank a 40 ounce beer. Carter and Marcos' friend, Cloe, smoked methamphetamine.
"About an hour later, C.P. said she had to leave to catch a bus back home. Carter offered her a ride to the bus stop, and C.P. got in Carter's car. Instead of taking her to the bus stop, Carter drove C.P. to a dark parking lot in back of a school or park, and he said that he was going there to deal drugs. Carter got out of the car and left C.P. inside the car. When he returned to the car, he asked C.P., 'Do you want to fuck?' C.P. said no, but Carter grabbed her by the neck and pushed her against the car seat, and told her to do everything he said or he would stab her. C.P. did not see a knife, but Carter put something in his pocket. She later told an investigating officer that she had feared for her life.
"Carter told C.P. to stay in the car while he got out and walked around to open the passenger door. Carter demanded she get out of the car, and he put his arm around C.P.'s shoulder. He forced C.P. to walk with him to a tree in a corner of the parking lot. Carter pulled down his pants and asked C.P. to suck his penis and to stick her finger up his anus. C.P. complied. Afterward, Carter took C.P.'s belt and said he was going to give it to his daughter.
"While Carter walked C.P. back to his car, he told her that he wanted to go to a sex store. He threatened to put her in the trunk because she was under 18 and would not be old enough to go into the sex store. Instead, he drove to a WalMart store and made C.P. go inside with him. He told her to laugh and act happy while they were in the store, and he warned her that if she screamed or said anything he would stab her. Carter stole a pair of underwear and bought a black corset with garters, black underwear, and some lubricating gel. He never used the underwear or lubrication gel, but while purportedly driving C.P. to her home, he forced her to put her hands down her pants, touch her private parts, and act like she enjoyed it. He also handed her a small metal tool and told her to put it in her vagina.
"After C.P. complied with his requests, Carter asked if she was a virgin. When she said that she was, he drove her to another park and told her to climb the fence in the front of the park. C.P. climbed the fence and Carter followed. As they walked through the park Carter started kissing C.P. He threw her up against a map of the park, Carter ripped her shirt off, and told her to take off the rest of her clothes. C.P. complied and Carter undressed himself. He took C.P. inside a portable bathroom and told her to put her leg up on the wall. Then he raped and sodomized her and directed her to act as if she enjoyed it.
"Carter then moved C.P. to a park bench and told her to lay down on it. When she did, he raped her. C.P. started to cry and said she wanted to talk to her mother, but Carter told her to shut up. He directed her to open her mouth and ejaculated into it. When C.P. told him she had to urinate, he told her to urinate while he was having sex with her. When she did not bleed, he accused her of lying about her virginity. Sometime during this series of incidents, Carter put his mouth on C.P.'s vagina. Later, they both got dressed and walked back to his car.
"Afterward, Carter drove C.P. to a Jack in the Box restaurant, parked in the parking lot, and smoked methamphetamine. He gave C.P. some methamphetamine to smoke. C.P. said she smoked the drug so that Carter would not kill or stab her, and in an attempt to calm down and stop shaking. Carter told C.P. to put on the black corset that he had stolen from WalMart, and C.P. complied.
"As the sun rose the next morning, Carter drove C.P. to a parking lot near the ocean in Huntington Beach. She told Carter that she wanted to go home, but Carter said that he wanted to repeat what they had done earlier. He told C.P. that if she cooperated he would take her home, but if she did not, he would stab her. Carter made C.P. walk with him along the beach and hold his hand. He then forced C.P. inside a bathroom by the pier. He pushed her against the bathroom wall and started kissing her neck. When C.P. gave him a dirty look, he put his hand around her neck and said, 'if you don't do this, you might not make it home.' Carter took C.P.'s clothes and the black corset off, and directed her to put one leg on the toilet and turn around. C.P. complied and Carter sodomized her. C.P. complained that he had hurt her, but Carter told C.P. to lie on the floor. Carter vaginally raped C.P. and ejaculated on her chest. C.P. redressed, and Carter drove her to her Huntington Beach home. During the drive, he admitted to her that he had had done the same things to an Asian girl not that long ago, and he threatened to have someone chop her up if she told anyone what had happened. Carter used his phone and acted like he was calling someone, and told someone to kill C.P. if she reported his activities to the police." (Carter I, supra, G040205.)
In sum, defendant's criminal conduct occurred at the following locations: (1) parking lot — C.P. forced to suck defendant's penis and put her finger in defendant's anus; (2) car ride — C.P. forced to touch her own vagina and insert metal object into her own vagina; (3) portable bathroom at park — defendant raped and sodomized C.P.; (4) park bench — defendant raped C.P., then ejaculated into her mouth, and at some point defendant orally copulated C.P.'s vagina; and (5) bathroom by pier — defendant sodomized and raped C.P. Defendant was charged and convicted of two counts of rape, one count of sodomy, one count of oral copulation, and one count of penetration with a foreign object. But the evidence indicates C.P. may have been raped three times, sodomized twice, orally copulated three times, and forced to submit to penetration with a foreign object twice (including C.P. being forced to insert her finger into defendant's anus). Neither of the parties contest the accuracy of the description of facts in Carter I, supra, G040205. Indeed, the recitations of fact in the parties' briefs are consistent with the description of facts in Carter I.
Jury Instructions
The jury instructions pertaining to particular crimes did not specify which evidentiary instance of rape/sodomy/oral copulation/penetration with a foreign object was intended to apply to the counts alleged against defendant. The jury was instructed with a unanimity instruction, CALCRIM No. 3500: "The defendant is charged with 209(b)(1) Kidnap to Commit a Sex Offense, 261(a)(2) Forcible Rape, 286(C)(2) Forcible Sodomy, 288a(c)(2) Forcible Oral Copulation, and 289(a)(1) Forcible Sexual Penetration with a foreign object. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
CALCRIM No. 1045, as given, left open the possibility that defendant could be convicted of penetration with a foreign object either for forcing C.P. to insert the metal object in her vagina or for forcing C.P. to insert her finger into defendant's anus. "The defendant is charged [in] Count six with sexual penetration by force [with a] foreign object in violation of Penal Code section 289. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act of sexual penetration with another person; [¶] 2. The penetration was accomplished by using a foreign object, or instrument; [¶] 3. The other person did not consent to the act; [¶] AND [¶] 4. The defendant accomplished the act by: force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone. [¶] Sexual penetration means penetration, however slight, of the genital or anal opening of the other person or causing the other person to penetrate, however slightly, the defendant's or someone else's genital or anal opening or causing the other person to penetrate, however slightly, his or her own genital or anal opening for the purpose of sexual abuse, arousal, or gratification. [¶] A foreign object . . . includes any part of the body except a sexual organ."
Verdict Forms
The jury found defendant guilty of counts 1 through 6, and count 8. The jury made additional findings for counts 2 through 5 and count 8 that defendant: (1) kidnapped the victim during the commission of the offenses and (2) used a knife during the commission of the offenses.
The verdict form indicated count 3 referred to the forcible rape of C.P. in the bathroom in Huntington Beach. The verdict form for count 2 referred to the forcible rape of C.P. in the "park"; the form does not specify whether the "park" refers to the park bench or the portable bathroom. The verdict forms for the other counts do not specify where the crimes took place.
Characterization of Evidentiary Record in People's Sentencing Brief
The People submitted a new brief to assist the trial court in resentencing defendant (defendant did not submit a written brief on remand). The People's brief characterized the evidence as follows: "The defendant was convicted of several forcible sex offenses against [C.P.]. Specifically, forcible rape at two different locations (at the park and the beach); forcible sodomy (in the port-a-potty); forcible oral copulation (at the first stop before taking her to Wal-Mart) and forcible penetration with a foreign object (in the car with the ratchet prior to being raped)." Neither counsel for defendant nor the People identified for the trial court the ambiguities in the record as to which conduct provided the basis for each of the jury's unanimous verdicts.
New Sentencing Hearing
As it did at the first sentencing hearing, the court sentenced defendant to 150 years to life in prison: "So in conducting the analysis under the test as I should have done at the first [sentencing hearing], it doesn't change for me in terms of the sentence that I am going to impose on [defendant]. I still feel it warrants consecutive 25 to life sentence[s] on all of the crimes, which as I analyzed the first time was 150 years to life."
The court rejected defendant's assertions that several of his offenses occurred on the same "occasion" as other offenses: "I would agree with [the prosecutor] with respect to counts 5 and 6 concerning the forcible oral copulation and the sexual penetration with the foreign object. Clearly in the court's eyes those occurred on separate occasions [and not] in temporal and spatial proximity. She goes through the Walmart. . . . [T]he time frames are interrupted."
With respect to forcible sodomy (count 4) and one of the acts of forcible rape, "to me those crimes are separate. I do not believe the evidence supports that they were committed in close temporal and spatial proximity and that they occurred on a single occasion. To me it's a separate occasion. [¶] In looking at the fact that they were interrupted, it's not in the same place. I mean he takes her from an enclosed port-a-pot area, stops the sex act, drags her over to a different area, then forcibly rapes her. That is interrupted. That's separate." "It was not a matter of hours or anything like that, but there was an interrupted time. And the fact that he drags her to a different place and commits a completely different sex act and different type of abuse in a different location to me would be clear . . . that these crimes were not committed on a single occasion . . . ."
DISCUSSION
Defendant attacks his sentence pursuant to three independent theories: prosecutorial misconduct (for allegedly misrepresenting the factual record to the trial court); ineffective assistance of counsel (for failing to inform the court of the factual ambiguities in the record as to which conduct provided the basis for the convictions in counts 2 through 6); and legal error by the court in sentencing defendant. We need not comment on defendant's first two theories, as it is clear the sentence imposed amounts to legal error regardless of why the error occurred. We therefore remand once more for resentencing.
Defendant does not assert any error with regard to his sentence on count 1, kidnapping to commit sex crimes, as he was properly sentenced to life with the possibility of parole on this count. (§ 209, subd. (b)(1).) Defendant's challenge pertains to the court's application of the One Strike law to the other six counts of which he was convicted.
"The One Strike law (§ 667.61) was added to the Penal Code in 1994. [Citations.] Like the Three Strikes law, the One Strike law is an alternative sentencing scheme, but it applies only to certain felony sex offenses. . . . As with the Three Strikes law and statutory sentencing enhancements, the jury must first decide whether all the elements of the underlying substantive crime have been proven. If not, it returns an acquittal and the case is over. If the jury convicts on the substantive crime, it then independently determines whether the factual allegations that would bring the defendant under the One Strike sentencing scheme have also been proven. Because the sentencing allegations have the potential to increase punishment, the defendant has a Sixth Amendment right to have their truth decided by a jury." (People v. Anderson (2009) 47 Cal.4th 92, 102-103.)
The applicable version of section 667.61, as amended by Statutes 1998, chapter 936, section 9, provides, in relevant part: "A person who is convicted of an offense specified in subdivision (c) [including forcible rape, forcible sodomy, forcible oral copulation, and forcible penetration with a foreign object] under two or more of the circumstances specified in subdivision (e) [including the victim was kidnapped, the defendant used a deadly weapon, and the defendant is convicted in the present case of committing a qualifying offense against more than one victim] shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years . . . ." (Former § 667.61, subds. (a), (c), (e).)
Defendant rightly concedes counts 2 through 6, plus count 8, each independently satisfy these initial requirements for the imposition of a 25 years to life sentence under the One Strike law. The six convictions at issue are crimes listed in former section 667.61, subdivision (c). Moreover, the jury found true multiple circumstances listed under former section 667.61, subdivision (e). Clearly, the One Strike law applied to this case. The relevant question is how many 25 years to life sentences were appropriate.
"The term specified in subdivision (a) [i.e., 25 years to life] shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the [term of 25 years to life] shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable." (Former § 667.61, subd. (g); see People v. Murphy (1998) 65 Cal.App.4th 35, 40 ["no ambiguity" in this "limitation on the number of life sentences which can be imposed" under One Strike law].)
"[M]ultiple sex offenses occurred on a 'single occasion' . . . if there was a close temporal and spatial proximity between offenses." (Jones, supra, 25 Cal.4th at pp. 100-101.) The Jones court rejected the definition of "occasion" used in section 667.6, subdivision (d) (the "reasonable opportunity to reflect" standard), as inapplicable to former section 667.61, subdivision (g). (Jones, at pp. 104-107.) "[T]he rule of lenity . . . points to the conclusion that the Legislature intended to impose no more than one [life] sentence per victim per episode of sexually assaultive behavior." (Id. at p. 107.) The Jones court concluded the trial court erred by imposing three consecutive 25 years to life sentences (under former § 667.61, subd. (a)) for forcible rape, forcible oral copulation, and forcible sodomy convictions based on conduct perpetrated upon a single victim during a single "occasion" (over the course of approximately an hour and a half, the defendant pulled the victim to an isolated location and proceeded to brutalize her in a variety of ways). (Jones, at pp. 101-103.)
Thus, the applicable former version of section 667.61 limits the number of life sentences that shall be imposed depending on the number of victims and the number of "occasions" during which the conduct resulting in multiple convictions occurred. (See, e.g., People v. Fuller (2006) 135 Cal.App.4th 1336, 1342-1343.) For any conviction not eligible for a life sentence under section 667.61, the sentencing court should impose a sentence "authorized under any other law . . . ." (Former § 667.61, subd. (g); see People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.)
There are no instances in this case of defendant attacking multiple victims during a single "occasion." Clearly, the court was entitled to impose a 25 years to life sentence on count 8 (the rape of J.D.), as this was the only conviction pertaining to J.D.
With regard to the five counts involving C.P., the issue is whether each count occurred on a separate "occasion" or whether some of the counts occurred on the same "occasion." Undoubtedly, the court was entitled to impose 25 years to life sentences with regard to counts 2 and 3 (the two rapes). The verdict forms made clear these convictions pertained to a rape of C.P. at the park and a rape of C.P. at the pier bathroom. There was temporal (the park rape occurred at night, the pier rape occurred the next morning) and spatial (the park was in or near Santa Ana, the pier was in Huntington Beach) differentiation between the two rapes. The court was within its discretion in finding these rapes occurred on separate occasions.
As explained above, defendant's criminal conduct with regard to C.P. occurred over the course of two days at the following locations: (1) parking lot — C.P. forced to suck defendant's penis and put her finger in defendant's anus; (2) car ride — C.P. forced to touch her own vagina and insert metal object into her own vagina; (3) portable bathroom at park — defendant raped and sodomized C.P.; (4) park bench — defendant raped C.P., then ejaculated into her mouth, and at some point defendant orally copulated C.P.'s vagina; and (5) bathroom by pier — defendant sodomized and raped C.P.
As to the sodomy conviction (count 4), the court was not justified in simply assuming the jury reached its sodomy verdict based on defendant's conduct in the portable bathroom (rather than in the pier bathroom), while at the same time assuming the jury reached its count 2 rape verdict based on defendant's conduct on a nearby park bench (rather than defendant's rape of C.P. in the portable bathroom). Had the jury made its findings clear and in accordance with the court's assumptions, we would have been presented with the question of whether the court erred by concluding the portable bathroom attack and the bench attack were not part of the same "occasion" under Jones, supra, 25 Cal.4th 98. But here, in the absence of a clear indication from the jury as to which instance of sodomy and which rape it based its verdicts upon, the court clearly erred. Defendant was entitled to be sentenced under other law (not the One Strike law) for his sodomy conviction.
It is also impossible to identify the specific conduct providing the basis for defendant's convictions in counts 5 (forcible oral copulation) and 6 (penetration by foreign object). If both counts 5 and 6 were based on the parking lot incident (C.P. forced to suck defendant's penis and penetrate his anus with her finger), then imposition of one 25 years to life term under the One Strike law would be appropriate (the other conviction would be sentenced based on other law). If only count 5 was based on the parking lot incident, and count 6 was based on C.P. being forced to insert the metal object into her vagina while riding in the car, then imposition of two 25 years to life sentences would possibly be appropriate, depending on whether the parking lot and the car ride were part of the same "occasion." And if count 6 was based on either the parking lot incident or the car incident, but count 5 (oral copulation) was based on the park bench incident (when defendant ejaculated into C.P.'s mouth and orally copulated C.P.'s vagina), then imposition of one 25 years to life sentence (on count 6) would be appropriate, and the oral copulation count should be sentenced based on other law. Based on this uncertainty, the best solution is to impose sentence of 25 years to life on count 6, and resentence defendant on count 5 pursuant to other law.
The trial court, therefore, appropriately imposed four sentences of 25 years to life on counts 2, 3, 6, and 8. The applicable version of the One Strike law does not require these sentences to be run consecutively. (See People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) But the applicable version of section 667.6, subdivision (d), enacted by Statutes 2002, chapter 787, section 16, obligated the court to run these sentences consecutively. (See People v. Chan (2005) 128 Cal.App.4th 408, 423-424.) Thus, at a minimum, defendant's sentence amounts to 100 years to life in state prison.
As noted earlier, the court also properly sentenced defendant on count 1 to life in prison with the possibility of parole.
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With regard to counts 4 and 5, the court shall resentence defendant pursuant to other applicable law (not the One Strike law). We decline to provide further guidance on this point, as the appropriate sentence under "other law" was not raised below or briefed on appeal.
DISPOSITION
The matter is remanded for a new sentencing hearing in accordance with this opinion. In all other respects, the judgment is affirmed.
IKOLA, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.