Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge, No. BA323097
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Nathaniel Dean was convicted of entering Charlotte P.’s home and raping her. On appeal, he contends that the trial court erred when it admitted evidence of her statements to a police officer; permitted Dean to be impeached with a prior burglary conviction; failed to instruct the jury on unanimity with respect to which entry into the home constituted the burglary with intent to rape; sentenced him consecutively; and imposed a court construction fine. We remand for resentencing but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Early in the morning of February 24, 2000, Charlotte P. awoke to find Dean standing over her bed. Dean threatened to kill or hurt her if she was not quiet. Dean climbed on top of her, placed a pillow over her head, and engaged in sexual intercourse with her. Initially, Charlotte P. was on her back; Dean penetrated her while she was on her back, then repositioned her and had intercourse with her while she was on her stomach. During the rape, Charlotte P.’s young son entered the room to use the bathroom, and Dean soon fled.
Charlotte P. discovered afterwards that money was missing from her room and that shampoo bottles had been removed from the shower window. When the police arrived, Charlotte P. described her assailant to Officer Karena Rowan and told her that the man claimed to have a gun and threatened to kill her if she turned her head around during the sexual assault. She told Officer Virginia Rubalcava that the perpetrator warned her that he had a gun, placed a pillow over her head, ordered her not to look at him, removed her underwear, and then twice penetrated her vagina. Charlotte P. said that she believed he ejaculated.
Charlotte P. was examined by a sexual assault examination nurse, who performed a physical examination and collected samples from her body. Charlotte P.’s vaginal area was bruised and bore some abrasions; abrasions in that area were consistent with sexual assault.
Years later, in 2006, an oral swab was taken from Dean. The DNA from Dean’s swab was compared to the samples taken at the time of the assault. The major DNA profile of the sperm cells obtained from Charlotte P.’s vagina matched the DNA from Dean’s swab to a near statistical certainty, while the minor DNA profile from the cells matched Charlotte P.’s DNA.
Dean was charged with two counts of forcible rape (Penal Code, § 261, subd. (a)(2).) It was alleged as to both counts that Dean committed the rapes during the commission of a first-degree burglary with the intent to commit rape and that he committed the rapes during a burglary so as to fall within the provisions of several subdivisions of section 667.61.
Unless otherwise indicated, all further statutory references are to the Penal Code.
At his jury trial, Dean’s defense was that he was acquainted with Charlotte P. and that they had engaged in consensual sex prior to Charlotte P. having been raped. He said he concealed that information from the police when he was questioned in 2006 because he and Charlotte P. had both been involved with other people at the time.
Dean was convicted as charged. The trial court sentenced him to 25 years to life on count 1, with a consecutive eight-year sentence on count 2. The court also imposed two one-year enhancements for prior prison terms, for a total sentence of 25 years to life plus 10 years. He appeals.
DISCUSSION
I. Admission of Charlotte P.’s Statement to Police
Over Dean’s objection and pursuant to Evidence Code section 1237, the trial court permitted Rubalcava to read several of Charlotte P.’s statements recorded in the police report, most significantly Charlotte P.’s assertion that Dean penetrated her twice. Evidence Code section 1237 authorizes admission of a witness’s past recollections that were recorded under specific circumstances: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which” meets specific statutory requirements.
Dean contends that prior to the admission of Charlotte P.’s statement to the police, the prosecutor should have asked Charlotte P. directly whether she remembered how many times Dean penetrated her, and that she would have needed to testify that she did not remember. To support this assertion, Dean relies on a decision interpreting not Evidence Code section 1237 but former Code of Civil Procedure section 2047, which permitted the use of past recollections recorded only when it was established that the witness had “no recollection of the particular facts.” (People v. Sigal (1965) 235 Cal.App.2d 449, 455, citing former Code Civ. Proc. § 2047.) While the court in People v. Butcher (1959) 174 Cal.App.2d 722, 728 (Butcher) did hold, as Dean notes, that the trial court should not have admitted an out-of-court statement under former Code of Civil Procedure section 2047 before establishing that the witness was unable to recall its substance, this ruling was based on the specific language of the then-effective law: “The witness should have been asked if he retained a recollection of the conversation, for the Code of Civil Procedure, sec. 2047, provides that a witness may testify from such a writing though he retains no recollection of the particular facts. This means that he must testify first that he is unable to refresh his memory or testify independently therefrom.”
Evidence Code section 1237, in contrast, uses much less rigorous language than did former Code of Civil Procedure section 2047. Rather than a requiring a witness to have no recollection of the particular facts in a statement, the recorded statement must concern “a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately.” (Evid. Code, § 1237, subd. (a).) In light of the repeal of former Code of Civil Procedure section 2047 and the enactment of Evidence Code section 1237, the Attorney General argues, and we agree, that the exacting requirement of Butcher — that before a recorded recollection may be used at trial, it must first be directly established, by asking the witness, that he or she has a complete absence of memory—can no longer reasonably be applied. Instead, we determine whether the trial court’s ruling, that the evidence was admissible under Evidence Code section 1237, was an abuse of discretion by examining the record to determine whether it supports the implicit finding that Charlotte P. had insufficient present recollection at the time of trial to permit her to testify fully and accurately as to the sexual assault.
While it would have been preferable for the prosecutor to have obtained a clearer statement of a deficient memory on the specific subject of the number of penetrations, Charlotte P.’s testimony permitted the trial court to conclude that she lacked a sufficient recollection of the rapes at the time of trial to permit her to testify fully and accurately as to what happened to her. Charlotte P. was testifying in July 2008 about events that occurred in February 2000. She responded that she did not remember when asked about many details of the incident. For instance, Charlotte P. testified that she could not remember whether Dean made detailed threats or what his voice sounded like. She could not remember whether her underwear was off or on when he raped her. She said she could not remember whether Dean did anything to prevent her from looking around or seeing. While she recalled something on her face, she could not recall how she was able to continue breathing. She did not recall whether she saw a weapon. She did not remember if she tried to call out as she was attacked. She could not remember if she had any physical sensation as she was raped. She did not remember whether Dean demanded any money from her.
Even when Charlotte P. was able to answer the questions asked, she qualified many of her answers with language that indicated a lack of certainty. Charlotte P. knew that when Dean first penetrated her, she was on her back, but when asked if Dean’s legs were between hers she answered, “I think so, yes.” When asked if she remained on her back for the entirety of the incident, Charlotte P. answered, “I think I may have turned or was forced to turn.” Then, she said, once she was on her stomach, “I think we were still having intercourse.” She testified that “I think” Dean was behind her at that point, but when asked to confirm that he was behind her rather than underneath her, she said she couldn’t remember. She could not remember whether Dean ejaculated while she was in either position.
Charlotte P. testified that she did not remember things as well as she did when they happened in 2000 and that she had dealt with the incident by blocking it out. She testified that she “[j]ust vaguely” remembered what she said to the police and that she “probably” could not testify fully and accurately about what she had said. When asked on cross-examination whether she had made specific statements to the police, she gave answers such as “I think I may have said that,” “I think so,” “It is quite possible,” and “I may have said that.”
Based on this record, the trial court could easily have concluded that in light of Charlotte’s demonstrated inability to testify fully about the details of the rapes—such as how she came to change position, how Dean was positioned, and what happened when she changed positions—the number of times that Dean penetrated Charlotte was among the “matter[s] as to which the witness has insufficient present recollection to enable him to testify fully and accurately.” (Evid. Code, § 1237, subd. (a).) The trial court did not abuse its discretion by admitting this statement as a past recollection recorded.
II. Impeachment with a Burglary Conviction
Because Dean had three prior burglary convictions, the issue arose at trial as to which, if any, the prosecutor could use to impeach him when he testified. Dean asked that all three be sanitized and referred to as felonies of moral turpitude, and the trial court ruled that while two would be referred to as crimes of moral turpitude, the prosecutor could select one that would be identified as a burglary. Dean contends that the trial court abused its discretion when it declined to sanitize the final burglary conviction under Evidence Code section 352.
We review the admission of the evidence for an abuse of discretion. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) In exercising its discretion to determine whether prior criminal conduct evidence is more prejudicial than probative so as to be excluded under Evidence Code section 352, the trial court considers the factors identified by the California Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 to determine the admissibility of prior convictions: “(1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Applying these factors here, the trial court did not abuse its discretion by refusing to sanitize one of Dean’s prior burglary convictions. Burglary is a crime that reflects adversely on honesty. (People v. Collins (1986) 42 Cal.3d 378, 395.) The burglaries were not very remote in time, having occurred in 2001 and 2006. Although the prior crimes involved very similar conduct to the enhancement alleged here, even identity of crimes does not compel exclusion or sanitization. (People v. Dillingham (1986) 186 Cal.App.3d 688, 695; see also People v. Muldrow (1988) 202 Cal.App.3d 636, 644 [upholding the admission of three prior first degree burglary convictions where the defendant was charged with two counts of first degree burglary because excluding any would give the defendant “a false aura of veracity”].) The final Beagle factor, the effect if the defendant does not testify, is not present here, for Dean did testify at trial.
The record shows that the trial court performed the balancing of factors required by Evidence Code section 352. The court sanitized two of the three burglary convictions in order to place before the jury the extent of Dean’s moral turpitude without unduly prejudicing the jury by informing it of all three prior burglaries: the court said, “A defendant... has an absolute right to testify. A defendant... has an absolute right not to testify. If a defendant chooses to exercise his constitutional right to testify, he should not be permitted to testify with impunity and with a carte blanc[he] to avoid impeachment.” Therefore, the court reasoned that the non-burglary priors could be used for impeachment, that one burglary conviction could be used, and that the remaining two burglaries would be sanitized. With this decision the trial court struck a reasonable balance between Dean’s right to be free of undue prejudice and the rights of the People to impeach Dean, and we cannot say that there was an abuse of discretion here.
III. Failure to Instruct on Unanimity Regarding Entry
Dean acknowledges that there was sufficient evidence from which the jury could find true the enhancement allegation that he committed the two rapes during the commission of a burglary with the intent to commit rape within the meaning of section 667.61, subdivisions (a) and (d). He argues, however, that the jury should have been instructed that it was required to reach a unanimous determination as to whether Dean formed the intent to rape when he entered Charlotte P.’s home or instead when he entered her bedroom.
Our Supreme Court has described the circumstances in which a unanimity instruction is required: “The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135 (Russo).)
Here, there was no potential that the jury would divide on two discrete crimes and not agree on any particular crime, because the only room for variance was on the subject of when the intent to rape was formed. The jury was instructed with a version of CALCRIM No. 3178 specifying that in order to find the enhancement allegation true, it had to find beyond a reasonable doubt that “[w]hen the defendant entered the house or room within the inhabited house, he intended to commit rape.” (See People v. Sparks (2002) 28 Cal.4th 71, 75-78.) We presume that the jury followed the instructions given. (People v. Horton (1995) 11 Cal.4th 1068, 1121.) By the language of the jury instruction, in order to reach a true finding on the allegation, each and every juror had to conclude that by the time Dean entered the bedroom, he had formed the intent to commit rape.
Dean argues that some of the jurors may have believed that he entered the home in order to steal and then formed the intent to rape when he “got to” Charlotte P.’s bedroom, while others may have concluded that he entered the home with the intent to commit rape. This may be accurate, but it is not problematic: even if some jurors believed that Dean formed the intent to rape before he entered the home, and others believed that he formed the intent to rape after he entered the home but before he entered Charlotte P.’s bedroom, every juror nonetheless necessarily believed that Dean entered the bedroom with the intent to rape.
Accordingly, there is no risk whatsoever that “the jury may [have] divide[d] on two discrete crimes and not agree[d] on any particular crime” (Russo, supra, 25 Cal.4th at p. 1135), and there was no justification for a more detailed instruction on the enhancement allegation here. This case is not like People v. Castaneda (1997) 55 Cal.App.4th 1067 or People v. Laport (1987) 189 Cal.App.3d 281, in which the jury could have found the defendant guilty based on entirely separate criminal acts. In sharp contrast to those cases, here, regardless of whether jurors believed that Dean entered the home and the bedroom with the intent to rape or that he entered only the bedroom with the intent to rape, they unanimously found that when Dean “entered the... room within the inhabited house, he intended to commit rape.” (CALCRIM No. 3178, as given here.) There was no error here.
IV. Consecutive Sentencing
The trial court sentenced Dean to 25 years to life for the first rape pursuant to section 667.61, subdivision (a). The court imposed a consecutive determinate term of 8 years for the second rape under section 667.6, subdivision (d), on the basis of the court’s factual finding that the rapes were committed on separate occasions. Dean argues that the analysis set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S. 270 applies with equal force to consecutive sentencing and precluded the trial court from imposing a consecutive sentence on count 2 in the absence of his admission or a factual finding by a jury beyond a reasonable doubt that the crimes were committed on separate occasions. The United States Supreme Court has held that the Sixth Amendment does not mandate jury determination of facts necessary to the imposition of consecutive sentences for separate offenses (Oregon v. Ice (2009) 555 U.S. ___, 129 S.Ct. 711, 714-715), and the California Supreme Court has specifically ruled that imposing a consecutive sentence under section 667.6, subdivision (d) does not violate the Sixth Amendment. (People v. Wilson (2008) 44 Cal.4th 758, 813.)
V. Sufficiency of the Evidence of Separate Occasions
Section 667.6, subdivision (d) mandates full consecutive sentences for certain sexual crimes committed against a single victim on separate occasions. “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (§ 667.6, subd. (d).)
Dean argues that the trial court erred in imposing consecutive sentences under section 667.6, subdivision (d) because the evidence was insufficient to demonstrate that he had a reasonable opportunity to reflect upon his actions but nevertheless resumed sexually assaultive behavior. The finding must stand unless “no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.” (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
This court considered the question of what constitutes a reasonable opportunity to reflect in People v. Pena (1992) 7 Cal.App.4th 1294 (Pena). In Pena, the defendant raped the victim, then “got off of her, twisted her by the legs violently, and orally copulated her.” (Id. at p. 1299.) In considering whether the rape and the oral copulation could be considered to have occurred on separate occasions, we reviewed the pertinent decisional law. First, we discussed People v. Corona (1988) 206 Cal.App.3d 13, in which the sexual assaults occurred in a car under the defendant’s control. The defendant there digitally penetrated the victim’s vagina and orally copulated her, before finally raping her. He left the car for five minutes, returned, and raped her again. “The court held mandatory consecutive sentences for the two rapes which occurred five minutes apart were proper. It held improper consecutive sentences for sexual acts occurring before the first rape. The court found specifically there was no evidence of ‘any interval “between” these sex crimes affording a reasonable opportunity for reflection; there was no cessation of sexually assaultive behavior hence defendant did not “resume sexually assaultive behavior.”’ [Citation.]” (Pena, at p. 1315.)
Next, we reviewed People v. Hammon (1987) 191 Cal.App.3d 1084. (Pena, supra, 7 Cal.App.4th at p. 1315.) The Hammon court, considering what constituted separate acts under section 654, “held two separate counts of fellatio could not be upheld where the two relevant photographs depicted the act of fellatio in two separate positions. ‘The photographs reflect that defendant momentarily disengaged moved slightly and then resumed. Since these counts do not meet the test for separate offenses, defendant could only be convicted of one offense for this conduct.’ [Citation.] The same was true for two counts of oral copulation, which were distinguishable only by a change in position.” (Pena, at p. 1316.)
The Hammond court’s section 654 framework was subsequently rejected by the California Supreme Court as an improper insertion of irrelevant factors into the definition of a sex offense. (People v. Harrison (1989) 48 Cal.3d 321, 332-333.) With respect to the discussion of a reasonable opportunity for reflection, the Supreme Court observed that this factor originated in the language of section 667.6, subdivision (d), the provision that we are concerned with here.
We applied these cases to the analysis of Pena’s conduct: “[T]he cases discussed above strongly suggest appellant did not have a ‘reasonable opportunity to reflect’ between his acts of rape and forcible oral copulation. As was the case in People v. Corona, nothing in the record before this court indicates any appreciable interval ‘between’ the rape and oral copulation. After the rape, appellant simply flipped the victim over and orally copulated her. The assault here was also continuous. Appellant simply did not cease his sexually assaultive behavior, and, therefore, could not have ‘resumed’ sexually assaultive behavior. [¶] Thus, the case at bar is strongly analogous to Corona, in which separate sexual acts occurring one after the other were held to be committed on one ‘occasion.’ This conclusion is unaffected by the fact the oral copulation and digital penetration in Corona occurred before the rape, and here the oral copulation occurred afterwards. [¶] Neither does our conclusion change when we consider appellant had to change positions in order to orally copulate Ms. B. The holding in Hammon strongly suggests a change in positions, alone, is insufficient to provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds.” (Pena, supra, 7 Cal.4th at p. 1316.) Accordingly, we concluded that no reasonable trier of fact could find a reasonable opportunity to reflect between the two crimes under those circumstances. (Id. at p. 1315.)
This case is indistinguishable from Pena, supra, 7 Cal.App.4th 1294. Dean raped Charlotte while she was on her stomach, then turned her over and raped her again. There was no evidence of any cessation of sexually assaultive behavior, just a change in position during the sexual intercourse. Charlotte P. described it as one transaction: when asked if Dean did anything to her after causing her to turn over to her stomach, she responded, “I think we were still having intercourse.” While the trial court concluded that the change in position afforded Dean an opportunity to reflect on his actions, the evidence suggests that, just as in Corona, supra, 206 Cal.App.3d at page 18 and Pena, the sexual assault here was continuous: Dean did not cease his sexually assaultive behavior, and, therefore, could not have resumed sexually assaultive behavior after reflection. The trial court, therefore, erred in sentencing Dean under section 667.6, subdivision (d).
We note, however, that consecutive sentences could have been imposed here under section 667.6, subdivision (c), which contains no requirement of separate occasions, provided that the trial court made a statement of its reasons for the sentencing choice. (People v. Belmontes (1983) 34 Cal.3d 335, 347-348.) The trial court did not state at sentencing that it would have elected to proceed under section 667.6, subdivision (c) if it could not sentence under subdivision (d), and we cannot determine from this record whether the trial court would have elected to sentence Dean under subdivision (c) or whether it would have sentenced him under section 1170. We therefore remand the matter for resentencing to permit the trial court to exercise its full sentencing discretion.
VI. Imposition of Court Construction Penalty
Dean committed the rapes in February 2000. At sentencing in 2008, the trial court imposed a court construction penalty under Government Code section 70372, subdivision (a), although that penalty was not enacted until 2002. (Stats. 2002, ch. 1082, § 4.) As the Attorney General concedes, the imposition of the court construction penalty violated the constitutional ban on ex post facto laws. (People v. High (2004) 119 Cal.App.4th 1192, 1198 [imposition of state court facilities construction penalty violated state and federal ex post facto clauses because it was punitive in nature and the effective date of the penalty statute postdated the commission of the offenses].) We discuss this issue so that the trial court may avoid imposing this penalty anew at resentencing.
DISPOSITION
The matter is remanded to the trial court for resentencing. The clerk of the superior court is then directed to prepare a corrected abstract of judgment and to forward a certified copy of the abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.