Opinion
E050605 Super.Ct.No. INF059065
01-13-2012
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO MARTINEZ DIAZ, Defendant and Appellant.
Thomas Owen, 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, Gil Gonzalez and Jennifer A. Jadovitz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
Thomas Owen, 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, Gil Gonzalez and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Alejandro Martinez Diaz of two counts of aggravated sexual assault of a child under 14 years of age (counts 1 & 2—Pen. Code § 269, subd. (a)). The trial court sentenced defendant to two concurrent terms of 15 years to life. On appeal defendant makes eight arguments: (1) the People adduced insufficient evidence of force or duress to support the convictions for aggravated sexual assault; (2) the court erred in forbidding defense counsel from evaluating the prospective jurors' views during voir dire on a minor's ability to consent to sexual activity; (3) the court erred in refusing to allow defense counsel to argue consent as an affirmative defense to negate the allegation of force or duress used to support the aggravated offenses; (4) the court erred in refusing to instruct the jury on consent as a defense to the aggravated offenses; (5) the court erred in failing to instruct the jury sua sponte with the unanimity instruction with respect to which act of force or duress the jury found supported the aggravated offenses; (6) the aforementioned errors resulted in cumulative error; (7) the court erred in neglecting to stay sentence on count 2 pursuant to the dictates of section 654; and (8) the court erred in neglecting to award defendant any custody credit after sentencing. We agree with defendant's last contention and award him the proper amount of custody credit, including both actual and conduct credits. In all other respects, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Defendant's ex-wife testified that on June 30, 2007, while she was still married to defendant, she was cleaning out their garage; she found a videotape in a box. She took the video out of the box and watched it the next day. The video portrayed defendant molesting a young girl. Defendant's ex-wife witnessed defendant take the victim's clothes off, take her to the shower, lay her down on a bed, spread her legs, and touch the victim's genitalia in the video. She initially believed the young girl was her daughter. She brought the video to the police station that day. An officer brought her a still photograph of the victim from the video; only then did defendant's ex-wife realize that it was not her daughter; she identified the victim as her daughter's friend.
Officer Leonardo Perafan interviewed defendant after he had been taken into custody that same day. Defendant admitted he made the recording, and admitted putting his tongue on the victim's vagina twice. Defendant stated the victim was one of his daughter's friends. Defendant discussed how he changed positions throughout the video: "He said he was holding [the victim]. While she was on the bed, he was holding her down while he was molesting her." "[H]e said he was holding her legs, and then at one point, he was holding her down from the back." Defendant stated he believed the victim was eight or nine years old at the time of the incident.
The victim (born March 1998) testified that she spoke with "a girl" on July 5, 2007, regarding the molestation; the interview was video and audio recorded. The People played a recording of the interview at trial and provided the jury with a transcript transcribed from the interview.
The transcript of the interview identifies the "girl," as children's social services worker, Vera Diaz.
In the video, the victim stated she was nine years old. The victim believed the incident occurred when she was seven years old; it happened when she was in the second grade. Defendant told her to come into the house despite the fact that her friend was not there; she said he told her that her friend and her friend's mother were at the store. Defendant asked her if she wanted to play with Play Dough; she did. He repeatedly asked if she wanted to take a shower; she kept telling him she did not. Defendant was videotaping her while they were in the living room.
They moved into her friend's room; defendant told her to put on her friend's pajamas; the victim repeatedly told him she did not want to put on the clothes. Defendant eventually took her clothes off and put the pajamas on despite her resistance. She tried to leave. "He . . . started . . . taking off my pants and licking my pee pee." She kept telling him "no." He opened her legs by pulling them. The victim kept attempting to close her legs, but was unable to do so because he was holding them. "[H]e was squeezing [her leg] hard." The victim kept telling defendant "No"; she kept telling him she had to go. She tried to get up; she was scared. She could not leave because "[h]e was pushing me down. . . . [¶] . . . [¶] . . . really hard." "He pushed—he put me on the bed." "He tried to lick my pee-pee. . . . [¶] . . . [¶] He just kept licking . . . ." Defendant licked her twice. He never moved her around; she was on her back during the incident.
After the conclusion of the video, the victim identified defendant as her assailant. She testified he licked her "pee-pee." The victim testified she obeyed defendant because he was an adult.
The People played the approximately 35-minute recording of the molestation to the jury. The first approximately 21 minutes apparently take place in defendant's living room. The victim is playing with cooking instruments with which she is pretending to cook a meal of fish and cookies. The video is constantly focused between the victim's legs; defendant continually moves, adjusts, and zooms the camera so that it remains focused between the victim's legs. There is almost no time when a clear shot of the victim's entire face is presented for longer than a couple seconds. Approximately 21 minutes into the recording, the scene cuts from the living room to what is apparently defendant's daughter's bedroom. Defendant is sitting on one of two beds visible in the room. He puts the victim on his lap, places one hand on her thigh, and the other around her waist. He later places his hand on her chest.
Defendant then suggests the victim try on his daughter's pajamas. Contrary to her statement during her interview, the victim appears to readily accede to defendant's suggestion. Defendant takes her clothes off and puts the pajamas, both top and bottoms, on the victim. Defendant then places the victim back on his lap. He rubs her chest. The victim attempts to leave his lap twice, but defendant pulls her back onto his lap. The victim twice tells defendant she has to leave. Defendant takes off his shoes and socks. Defendant then asks her if she wants to take a shower. Contrary to her statement in the interview, the victim appears to agree.
The recording cuts to a view in a bathroom where the video camera is placed on the sink directed to the shower stall. Defendant turns on the shower. The victim tells him she does not now want to take a shower. Defendant attempts to induce her into the shower. The victim says she will take one at her grandmother's house. Defendant tells her the shower will be ready in only a minute. The victim tells him not to bother. He tells her to just hold on. She refuses. Defendant turns off the shower. The victim walks over to the shower and closes the shower door and curtain.
The video cuts back to defendant's daughter's room where the victim is completely undressed except for a pair of panties; defendant removes her panties and lays her down naked on one of the beds. He tells the victim, "Just, just lay down over here. Lay, lay down over here, okay? Right here. Right here. . . . Lay down." He holds her down on the bed with his hand. He tells the victim, "Hold on. You're gonna like it. Hold on. . . . You're, you're gonna like it, okay? Okay? Hold on. Hold on. Hold on. Hold on. Hold on. Don't, don't be scared." The transcript of the video then notes "[i]ndescribable sounds." The sounds are not "indescribable"; they are the sounds of licking. Defendant then asks the victim, "You like it?" She responds, "no." He replies, "You don't like it really?" The victim answers, "Uh-uh."
The victim then gets up and attempts to get dressed. Defendant grabs her and puts her, stomach down, on the other bed. He holds her down with his hand. He says "Hold on. Hold on just for a moment. One more. Just, just go like this, okay? Okay. Just a little thing . . . . Put this over, over, over, over the, over—okay. Just like that. Okay. Okay. . . . Let me put this first." He spreads her legs. He then orally copulates the victim again. Defendant then helps the victim get dressed. He offers her 10 dollars "Because . . . I don't want . . . you to tell nobody about" this.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant contends the People adduced insufficient evidence to support defendant's convictions for aggravated sexual assault. We disagree.
"In considering defendant's claim of insufficiency of the evidence of force necessary to affirm his conviction[,] we must determine only whether, on the record as a whole, any rational trier of fact could find him guilty beyond a reasonable doubt. [Citation.] We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
Section 269 punishes a defendant guilty of aggravated oral copulation of a child with an indeterminate term of 15 years to life. (§ 269, subds. (a)(4), (b).) Former section 269 defines oral copulation by reference to section 288a. (Former § 269, subd. (a)(4) [prior to amendment that became effective September 20, 2006].) Force or duress under section 269 is determined by the definitions provided in section 288 and the cases interpreting it. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004; People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran)) Section 288, subdivision (b)(1), proscribes any lewd and lascivious conduct committed "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." "'Force' as used in this context means 'physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' [Citation.] A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act. [Citations.]" (Cochran, at p. 13.) Defendant acknowledges, "[t]he discussion of cases related to section 288, subdivision (b), is appropriate here because the language of section 288, subdivision (b), tracks section 288a, subdivision (c)(2), which is at issue in the present case."
"'Duress' as used in this context means 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations] 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.] [¶] The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) The discrepancy in age, weight, and size between the victim and the perpetrator may be important factors in determining whether duress existed. (Id. at pp. 14, 15.)
Under the applicable deferential standard of review, we conclude the evidence in this case is sufficient to support the jury's determination that defendant used sufficient force or duress to accomplish his oral copulation of the victim. Defendant's ex-wife testified that her perusal of the video showed defendant undress the victim, lay her down on the bed, and spread her legs. Officer Perafan testified that defendant admitted holding the victim down while he was molesting her; defendant admitted holding the victim's legs and then holding her down from the back. In the victim's recorded interview she stated that defendant took off her clothes. She attempted to leave. Defendant opened her legs; she attempted to close them, but was unable to do so because he was holding them and squeezing hard. She attempted to get up, but was prevented by defendant. He pushed the victim down "really hard." Defendant pushed her down on the bed.
Of course, the dispositive evidence of force is demonstrated by a review of the video itself. In it, as noted above, defendant removes the victim's clothes and dresses her in his daughter's pajamas. The victim tells defendant twice that she needs to leave. The victim attempts to get up twice, presumably to leave, but is prevented from doing so by defendant. Defendant lays her down naked on the bed and directs her as to what to do. He holds her down on the bed with his hand. When the victim attempts to get up and get dressed, defendant grabs her and positions her on her stomach. He again directs her how to position herself. He holds her down with his hand. Defendant spreads her legs and then orally copulates her. The testimony and the video displays of holding, blocking, undressing, dressing, grabbing, squeezing, pushing, and placing of the victim are sufficient evidence of the requisite force necessary to convict defendant of the aggravated offense. Those actions constituted force substantially different from that necessary to accomplish the acts of oral copulation themselves. Defendant cites People v. Schulz (1992) 2 Cal.App.4th 999, and People v. Senior (1992) 3 Cal.App.4th 765, for the proposition that "a modicum of holding and even restraining cannot be regarded as substantially different or excessive 'force'" sufficient to uphold a conviction for an aggravated sexual offense. (Schulz, at p. 1004; Senior, at p. 774.) However, a number of published cases have explicitly disagreed with Schulz for that very proposition. (People v. Neel (1993) 19 Cal.App.4th 1784, 1786, 1789-1790; People v. Bolander (1994) 23 Cal.App.4th 155, 159-161 (Bolander); People v. Babcock (1993) 14 Cal.App.4th 383, 387-388.) Indeed, in Bolander, a separate panel from the same district, which included one of the very same justices who decided Schulz, repudiated that portion of the decision. (Bolander, at pp. 159-161.) Moreover, as some of those same cases have noted, the findings in Schulz and Senior that the respective defendants had not acted with sufficient force as required under the statute was dicta, because both courts upheld the convictions by finding that the defendants had committed the underlying acts by duress. (Schulz, at p. 1005; Senior, at pp. 775-776; Babcock, at pp. 387-388; Bolander, at pp. 159-161.)
We disagree with Senior and Schulz. As the court noted in People v. Cicero (1984) 157 Cal.App.3d 465 (Cicero), the first court to evaluate the meaning of "force" as used in section 288, subdivision (b): "'[F]orce' should be defined as a method of obtaining a child's participation in a lewd act . . . and not exclusively as a means of causing physical harm to the child." (Cicero, at p. 476, disagreed with by People v. Quinones (1988) 202 Cal.App.3d 1154, 1158 (Quinones) to the extent that Cicero held the People were still required to prove the act was undertaken against the will of the victim if the victim suffered no harm.) Cicero found that the force requirement had been "doubly met: defendant's acts of picking the girls up and carrying them along were applications of physical force substantially different from and substantially greater than that necessary to accomplish the lewd act of feeling their crotches." (Cicero, at p. 474.) Thus, any manipulative force used to accomplish the molestation subjects a defendant to conviction for the aggravated offense. Here, defendant used the forceful and manipulative methods of placing the victim on the bed, holding her down, physically preventing her egress, placing her on the other bed, holding her down again, and spreading her legs.
Finally, even to the extent that defendant's acts could be deemed insufficient to establish "force," they were certainly sufficient to be characterized as acts subjecting the victim to duress. Defendant's acts of grabbing, pulling, placing, holding, directing, and manipulating the victim could very well have conveyed an implied threat of force. The victim believed she was only seven years old at the time of the incident; she was in the second grade when it occurred; she was 11 at the time of trial. Defendant was 5 feet 7 inches tall and weighed 180 pounds at the time Officer Perafan interviewed him. Defendant was likely 39 or 40 years old at the time of the molestation. The victim stated during her initial interview that defendant was tall. Officer Perafan testified that at the time he was arrested, defendant was approximately a foot taller than the victim and weighed 120 pounds more than she. The victim stated that she was scared during the incident. Defendant told the victim not to be scared, indicating recognition that she was, in fact, scared. The victim testified at trial that she had obeyed defendant because he was an adult. During her interview, she stated since her parents now knew about the molestation, she felt "protected." This is sufficient evidence that the victim felt coerced into "acceding" to the acts of oral copulation. Thus, sufficient evidence was adduced below from which the jury could rationally have concluded that defendant committed the acts by force and/or duress.
Defendant cites People v. Hecker (1990) 219 Cal.App.3d 1238, and People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), in support of his contention the evidence was insufficient here to establish force or duress. In Hecker, the victim, who was 12 or 13 during the time of the charged molestations, testified her stepfather "forced her to orally copulate him until he ejaculated. She stated she tried to resist . . . but was unsuccessful." (Id. at p. 1241.) The victim testified she felt psychologically forced to engage in the acts against her will; she was subconsciously afraid. (Id. at p. 1242.) The jury convicted the defendant of several counts of lewd and lascivious acts by force. (Id. at p. 1240.) The appellate court modified the conviction to non-forcible lewd conduct, holding that although the victim testified she felt psychologically pressured and subconsciously afraid, there was no evidence the defendant sought to take advantage of that fear. (Id. at p. 1250.)
In Espinoza, the defendant entered his daughter's room on five or six occasions and molested her. (Espinoza, supra, 95 Cal.App.4th. at pp. 1292-1293, fn. 2.) He pulled her pants down, rubbed her breasts and vagina, put his tongue in her mouth, licked her vagina, and tried to put his penis in her vagina. The victim repeatedly indicated she submitted to the molestations because she was "'[v]ery scared and frightened.'" (Id. at p. 1293.) She was afraid the defendant would "'do something,'" she was afraid to go home, she was worried about her own safety. (Id. at pp. 1293-1295.) The defendant was convicted of one count of forcible lewd conduct and one count of attempted forcible rape. (Id. at p. 1291.) The appellate court modified the conviction to non-forcible lewd conduct and struck the attempted rape conviction holding insufficient evidence of duress supported the convictions. (Id. at p. 1324.) The court held that no evidence was adduced that the defendant's acts were accompanied by direct or implied threats of any kind. (Id. at p. 1321.)
The court in People v. Senior, supra, 3 Cal.App.4th at page 776, disagreed with the holding in Hecker regarding the lack of a "threat," noting that "[t]his contention improperly assumes a molestation cannot be accomplished by duress unless the molester knows why the victim is submitting. In any event, how could defendant have failed to recognize that the victim was afraid . . . when by his own testimony, she was often physically stiff and rigid?" Here, the victim did more than just remain "physically stiff and rigid"; rather, she twice told defendant she needed to leave; attempted to leave; and defendant, by his own admission, told her not to be scared, which implies that he recognized she was, in fact, scared. Likewise, the court in Cochran, supra, 103 Cal.App.4th at page 15, noted that the "language in Hecker is overly broad. The very nature of duress is psychological coercion." Finally, Cochran similarly distinguished its own case involving a nine-year-old victim, with Hecker's, involving a 12- to 13-year-old victim. (Cochran, at p. 15.) Indeed, as recently as 2008, we agreed with the analyses in Cochran and Senior insofar as they disagreed with the reasoning of Hecker, particularly with respect to the discrepancy between the ages of the victims in the respective cases. (People v. Veale (2008) 160 Cal.App.4th 40, 47-50 [Fourth Dist., Div. Two].) In Veale we also distinguished Espinoza in that it involved a victim who was considerably older; she was 12, while the victim in Veale was only six or seven years old. (Espinoza, supra, 95 Cal.App.4th. at p. 1292; Veale, at p. 43.) "Because of [the victim's] young age, [the victim] was more susceptible to being coerced through fear and due to defendant's position of authority." (Veale, at pp. 49-50.) Here the victim was likely seven or eight years old at the time of the incident and was, therefore, more susceptible to being coerced through fear due to defendant's age, size, physical acts, and position of authority. Sufficient evidence supports defendant's convictions for oral copulation accomplished by duress.
B. CONSENT AS A DEFENSE
Defendant contends the court erred in precluding his continued voir dire of the jury on the issue of whether a minor could consent to molestation, the court's prohibition against defense counsel arguing consent as an affirmative defense to aggravated sexual assault, and the court's refusal to instruct the jury consent is an affirmative defense to aggravated sexual assault. We hold consent was not an affirmative defense to aggravated sexual assault under former section 269. To the extent it could be deemed a defense, we hold any error was harmless because no jury could have reasonably found the victim consented to the molestation.
Prior to voir dire, the People addressed the issue of whether defendant would be permitted to raise consent as a defense to the aggravated sexual assault charges. The People argued consent was not a defense to the charged crimes. Defendant argued he should be able to query the prospective jurors on whether they believed a minor could consent to sexual behavior. The court ruled it would instruct the jury it may not convict defendant of the aggravated offense if it found the victim consented and that the People would have the burden of proving non-consent beyond a reasonable doubt. The People objected to the court's proposed instruction.
On December 14, 2009, voir dire commenced. Defense counsel questioned at least two jurors regarding whether they believed a minor could consent to sexual acts. The People likewise questioned jurors with the expectation that consent would be an affirmative defense to the aggravated offense. Outside the presence of the jury, the court later discussed the issue of consent as a defense with counsel. Defense counsel noted, "If there's consent, there's no crime to aggravate[.]" The next day, the People objected to continued voir dire and the proposed instruction on the issue of consent as a defense to the aggravated offense. Both sides had an opportunity to argue the issue. The court reversed its prior ruling and barred further voir dire on the issue of consent. The court informed the jury "[t]he Court has ruled this morning that pursuant to the case law as well as the instructions that you'll be given, that a 14-year-old cannot legally give consent to sexual relations . . . ." Defense counsel objected to the court's ruling. The parties completed voir dire without further reference to consent. The matter proceeded to trial.
During discussion of the proposed jury instructions, defense counsel objected to the People's proposed instruction reading, "'A child under the age of 14 cannot, as a matter of law, consent to the act of oral copulation.'" Defense counsel noted, "[t]he affirmative defense of a defendant believing that someone did consent is also not included in this instruction." The trial court then exposited its ruling: "It's my belief that from a legal concept, having read the cases, a minor of the age under 14 as indicated here cannot legally consent to oral copulation or any other sexual act, and therefore, it doesn't become legal. However, the way they've written this, it appears that if the defendant believed that the person did, in fact, not legally consent but actually consented, that that renders a defense to the charge of [section] 288(a) [subdivision] (c)(2) as well as [section] 269 [subdivision] (a)."
Defense counsel then requested a mistrial noting that the trial court appeared to be reconsidering whether consent could be used as an affirmative defense to the aggravated charge; defense counsel indicated the court's failure to allow voir dire on the issue supported a mistrial. Despite its reexamination of the issue, the court determined that it would give the People's instruction reading "'[a] child under the age of 14 cannot, as a matter of law, consent to the act of oral copulation.'" The court would not give the bracketed instruction reading, "[t]he defendant is not guilty if he believed the person consented to the act." (CALCRIM No. 1015) The court noted the latter was a bracketed instruction that was only applicable where the evidence supported it; however, in the instant case, the evidence did not support giving the bracketed instruction because the victim was a minor incapable of giving consent.
The next day while again discussing jury instructions, the court stated that "the People must prove, they must prove that . . . the victim did not consent and they must prove that there was force, violence, duress, or menace. What the Court has ruled is that a 14-year-old or someone less than 14 cannot legally consent to a sexual act, such as oral copulation, but the Court has not in any way restricted the defense from—either in voir dire or in cross-examination or in final argument—from arguing that there was no use of force, violence, duress, or menace." Defense counsel argued the court's proposed instruction was in direct contradistinction to the definition of consent provided in section 261.6. The court noted that statute made no reference to prosecutions against a defendant for sexual acts committed against minors. Defense counsel requested another mistrial; the court denied the request. The court summarized the issue: "[T]he totality of the picture is that a minor under 14 cannot legally consent to oral copulation, making it okay, but it does not mean that—as I indicated to the jury, it doesn't mean that the victim can't acquiesce or go along with the act, and if the person goes along with the act, and therefore the defendant is able to accomplish the act without the use of force, violence, duress, or menace, then the aggravated sexual assault as charged has not been proven and the defendant is entitled to a not guilty verdict. [¶] . . . [¶] . . . [The victim] can actually go along with the act and not resist or not in any way impede the defendant from accomplishing the act, and if that is the case and if the jury finds that to be true, then the charge in this—the charges in this particular case have not been proven."
As we shall discuss below, the court based its determination that the People must prove the victim did not consent on the current version of section 288a, as incorporated via the current version of section 269, rather than on the operative versions of sections 269 and 288a at the time defendant committed the offenses. The court also incorrectly instructed the jury with the current version of CALCRIM No. 1015 based upon the then-current version of section 288a, rather than instructing it with CALJIC No. 10.45 or, more precisely, CALJIC No. 10.46, both of which were based upon the then-extant version of section 288a, and neither of which required the People prove the act was against the will of the victim.
Section 261.6 reads: "In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, 'consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."
The court eventually instructed the jury with CALCRIM 1015 as follows: "Oral copulation by force, in violation of . . . Section 288(a) [sic] is a lesser included offense [sic] of the crimes charged in Counts 1 and 2. To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant committed an act of oral copulation with someone else; [¶] Two, the person did not consent to the act; [¶] Three, the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone. [¶] Oral copulation is any contact, no matter how slight, between the mouth of the one person and the sexual organ or anus of another person. Penetration is not required. [¶] In order to consent, a person must act freely and voluntarily and know the nature of the act. [¶] The act is accomplished by force if a person uses enough physical force to overcome the other person's will. Additional instructions have been provided to address force within the meaning of this crime.
"Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not . . . otherwise do or submit to. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant. Additional instructions will be provided to address duress within the meaning of this crime. [¶] An act is accomplished by fear if the other person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it. [¶] The defendant is not guilty offorcible oral copulation if he or she actually and reasonably believed that the other person consented to the act. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the person consented. If the People have not met this burden, you must find the defendant not guilty." (Italics added.)
The court also instructed the jury with the People's requested instruction reading "As a matter of law, a child under the age of 14 cannot legally consent to the act of oral copulation." Finally, the court instructed the jury with CALCIRM No. 1123: "The defendant is charged in Counts 1 and 2 with aggravated sexual assault on a child who was under the age of 14 years and at least ten years younger than the defendant, in violation of . . . section 269(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant committed oral copulation; [¶] And two, when the defendant acted, the other person was under the age of 14 years and was at least ten years younger than the defendant. [¶] To decide whether the defendant committed oral copulation, please refer to the separate instruction that I have given you, which was instruction 1015, which I just read to you."
We find the court's instructions to the jury inherently conflicting and confusing. Under CALRCRIM No. 1015, it required the jury to find as an essential element of the crime that the victim did not consent; gave a definition of consent; and elaborated on the standards for finding force or duress, which would require behavior that would overcome the victim's will or cause her to submit to something she would not otherwise do. The court then expressly informed the jury the People had the burden of proving beyond a reasonable doubt the victim did not consent to the acts in order to find defendant guilty of the aggravated offenses. Then, the court instructed the jury a person under the age of 14 could not legally consent to oral copulation. Unless there was some basis for finding the victim was not under the age of 14 at the time of the incident, there would appear to be no basis for giving the CALCRIM No. 1015 instruction regarding consent, because they were inconsistent with its instruction that a minor cannot consent. (See Bolander, supra, 23 Cal.App.4th at p. 162 (conc. opn. of Mihara, J.) ["[T]he utilization of Cicero's definition of force . . . poses a serious danger of confusing jurors."] cited with approval by People v. Soto (2011) 51 Cal.4th 229, 245 (Soto).) Indeed, as noted above, the court should have instructed the jury with either CALJIC No. 10.45 or CALJIC No. 10.46, both of which were based on the language of section 288a as it existed at the time defendant committed the offenses, and neither of which required the People prove that the act was committed against the will of the victim, was non-consensual, or gave a definition of consent.
The current pattern jury instruction and the statute it is based on, section 269, subdivision (a), require only that the victim be seven years younger than the defendant, not 10. (CALCRIM No. 1123; § 269, subd. (a).) However, the instruction given to the jury reflects the age disparity applicable in the former version of section 269, which, as discussed both above and below, was the applicable version of the statue when defendant committed the underlying offense.
"The legal adequacy of an instruction is reviewed independently. [Citation.]" People v. Cole (2004) 33 Cal.4th 1158, 1210.) Since all of the trial court's complained-of decisions regarding consent as an affirmative defense revolve around its determination of how to instruct the jury, we independently review those decisions. Thus, we review de novo the trial court's decision to prohibit defense counsel's voir dire on the issue of consent, its prohibition on argument on the issue of consent, its refusal to instruct on consent as an affirmative defense to the aggravated offenses, and its instruction that a 14 year old cannot consent as a matter of law.
In his opening brief, defendant exposited a line of cases for the proposition that the consent of the victim could legally be used as an affirmative defense to the aggravated offenses with which he was charged. (Cicero, supra, 157 Cal.App.3d 465; Quinones, supra, 202 Cal.App.3d 1154; Bolander, supra, 23 Cal.App.4th 155.) Defendant appropriately noted that "[t]he issue of whether the victim's consent is a defense to a charge of committing lewd acts with a child under 14 years of age by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is currently pending in the California Supreme Court . . . ." In the interim between the filing of defendant's opening brief and the filing of the People's response, the California Supreme Court decided the issue. In Soto, supra, 51 Cal.4th at page 248, footnote 12, the court expressly repudiated the holdings relied upon by defendant in Cicero, Quinones, and Bolander. By "[h]onoring the clear legislative intent expressed in the plain language of section 288(b)(1)," the Soto court specifically held "that consent of the victim is not a defense to the crime of aggravated lewd conduct on a child under age 14." (Soto, at p. 248.) The People, in their respondent's brief, maintain defendant's contentions regarding consent as a defense must therefore be "summarily rejected": "[I]t is clear that the [Soto] Court's reasoning and holding [are] wholly applicable to [defendant's] offenses of aggravated sexual assault of a child under section 269, subdivision (a)(4)."
However, in his reply brief, defendant argues it is not clear that the holding in Soto applies to the offenses for which the jury convicted him. Defendant argues the Soto holding was narrowly tailored to apply only to section 288, subdivision (b) offenses. Thus, he argues, since this case involves convictions under section 269, subdivision (a), Soto is irrelevant. Moreover, defendant notes that Soto based its reasoning and holding on its extensive analysis of the legislative and statutory history of section 288, subdivision (b), an analysis that is inapplicable to section 269, subdivision (a). (Soto, supra, 51 Cal.4th at pp. 238-241, 244.)
Current section 269, subdivision (a)(4) provides that any person who commits "oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a" "upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child." Current section 288a, subdivisions (c)(2)(A), (B), (C), (3), (d)(1), and (2) all require that the prohibited conduct be "accomplished against the victim's will." (Italics added.)
Defendant contends the italicized language reflects the legislative intent to preserve consent as an affirmative defense in prosecutions for aggravated sexual assaults pursuant to section 269, because that statute expressly incorporates the language of section 288a. We disagree. The People charged defendant with two counts of violating section 269, subdivision (a)(4), by committing oral copulation on "a child under 14 years of age, by force, violence, duress, menace and fear of immediate and unlawful bodily injury on the said child and another, where the said child is 10 or more years younger than the defendant, within the meaning of Penal Code section 288a." The language in the charging information mirrors the language of section 269 as it read at the time defendant
committed the prohibited act. Specifically, the statute read in pertinent part: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: . . . (4) Oral copulation, in violation of Section 288a when committed by force, violence, duress, menace, or fear of immediate bodily injury on the victim or another person." (Former § 269 [prior to amendment that became effective September 20, 2006].)
Neither party either below or on appeal recognized the court's error in instructing the jury on the basis of the then-current versions of the applicable statutes, i.e., the language requiring the People prove non-consent and that the acts must be against the will of the victim. After oral argument, we requested the parties file supplemental briefs addressing what effect, if any, application of the previous statutory language would have in resolving this issue. The People contend defendant committed the offenses in 2007, after the effective amendment of section 269. However, as we discuss below, no evidence adduced below supports this contention. Defendant contends that because some subdivisions of former section 288a require proof the act was against the victim's will, consent should be a defense to acts committed under all of the subdivisions. We disagree. As discussed below, it is clear defendant was subject only to conviction under those subdivisions, which did not require proof the act was against the will of the victim; thus, consent was not a defense to his offenses.
The charging information states the act of oral copulation took placed "on or about April 8, 2006, through and including July 1, 2007." The first of these dates occurred prior to the 2006 amendment and the latter occurred after the amendment. However, it is clear from the evidence the acts constituting the crimes took place before September 20, 2006, the effective date of the amendment. When she was nine years old in July 2007, the victim stated she believed the incident occurred when she was seven years old; it occurred when she was in the second grade. The victim stated during her interview that she had just finished the third grade and was going on to the fourth grade. She had her eighth birthday on March 17, 2006, when she was in the second grade. Therefore, the incident must have taken place prior to September 2006.
Oral copulation "in violation of [former] section 288a" could occur in a variety of specified ways. Some acts of oral copulation are crimes under section 288a only if the act is against the victim's will. (See former § 288a, subds. (c)(2), (3), (d).) Other acts of oral copulation are crimes under former section 288a even though they are not committed against the victim's will. The latter category of crimes involve minors. They include participating in oral copulation with another person who is under 18 years of age (former § 288a, subd. (b)(1)), being over the age of 21 years and participating in an act of oral copulation with someone who is under 16 years of age (former § 288a, subd. (b)(2)), and being more than 10 years older than another person who is under 14 years of age and participating in an act of oral copulation with such other person (former § 288a, subd. (c)(1)).
Section 288a was amended twice in the last 10 years—in 2002 and 2010. (Stats. 2002, ch. 302, § 4; Stats. 2010, ch. 219, § 8.) All references to "former section 288a" are to section 288a as it existed after the 2002 amendment and prior to the 2010 amendment.
Reading section 269 (as it read at the relevant time) together with former section 288a, aggravated sexual assault includes oral copulation upon a child under 14 years of age, by someone 10 years older than the child, when the act was accomplished by force, violence, duress, menace, or fear of immediate bodily injury on the victim or another person. There was no requirement that the act of oral copulation be accomplished against the victim's will.
The significance of the absence of any requirement in former section 269 that the act of oral copulation be committed against the victim's will is apparent from the decision in Soto, supra, 51 Cal.4th 229. In Soto, the court considered whether consent was a defense to a charge of aggravated lewd conduct under section 288, subdivision (b). That statute makes it a crime to commit a lewd or lascivious act upon a child under the age of 14 "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).) Although "[t]here is no language in section 288 requiring that a lewd or lascivious act be committed against the child's will," the defendant argued that "this requirement must be read into the aggravated offense." (Soto, at p. 237.) The court rejected the argument and held that consent of the victim was not a defense and the "prosecution need not prove that a lewd act committed by use of force, violence, duress, menace, or fear was also against the victim's will." (Id at p. 248.)
The language of section 269 as it read at the time of the crime in this case is, for our purposes, substantively identical to the language of section 288, subdivision (b) that concerned Soto: Both statutes required the prohibited act be committed by the use of force, violence, etc. Moreover, neither statute required the criminal act be committed against the will of the victim. Soto's holding compels the conclusion here that the prosecution was not required to prove defendant committed oral copulation against the will of the victim, and defendant was not entitled to assert the defense of consent. Therefore, the court did not err by limiting voir dire on the issue of consent, prohibiting defense counsel from arguing consent as a defense, or refusing to instruct the jury that consent is an affirmative defense to aggravated sexual assault.
Generally, in the absence of a legislative declaration to the contrary, penal legislation is not retroactive. (§ 3, People v. Teron (1978) 23 Cal.3d 103, 116.) This principle "simply embodies the general rule of construction, coming to us from the common law, that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively." (In re Estrada (1965) 63 Cal.2d 740, 746.) Consistent with this principle, the People appropriately charged defendant using the language of the former version of section 269 even though the information was filed more than two years after the amendment to the statute. The issue of whether consent is a defense to a charge under the present version of section 269 is not properly before us because defendant was not charged with violating section 269 in its current form.
Although there are times when this rule will not be applied (see, e.g., In re Estrada, supra, 63 Cal.2d at pp. 746-748), there is no reason for disregarding it in this case.
However, even to the extent that any of the trial court's rulings could be deemed erroneous, we find them harmless. It is not reasonably likely the jury would have found the victim "consented," had they been questioned during voir dire, heard argument on, and been instructed on consent as a defense to the aggravated offense. (People v. Watson (1956) 46 Cal.2d 818, 836; Soto, supra, 51 Cal.4th at p. 249 (disn. opn. of Werdegar, J.) Here, as discussed above, the video clearly reflects the victim's attempts, both verbally and physically, to leave the scene of the molestation. She was prevented from doing so by defendant. Defendant held, pushed, pulled, squeezed, carried, positioned, and physically manipulated the victim in a manner that readily demonstrated he was incapable of committing the sexual offense without those acts; in other words, the victim did not consent. Defendant was only able to accomplish the molestation by his acts of force and duress.
Defendant notes that "there was no evidence that [the victim] ever actually said no to [defendant] or complained about the alleged acts. As the videotape demonstrated she only said 'no' when appellant asked her whether she enjoyed it." Defendant continues, "[b]ecause there was no evidence that [the victim] ever said no to [defendant], complained about the alleged acts, or tried to stop them, it was reasonably probable that the result would have been more favorable to [defendant] in the absence of the error because the jury could have fully considered [defendant's] consent defense." We find nothing in the law that provides an escape mechanism for a defendant from conviction for an aggravated sexual offense simply because an approximately seven-year-old victim did not say "no" to the molestation; in other words, the failure of a seven or eight year old to verbally express unequivocal refusal does not transmit the act into one, which is consensual. Indeed, here, the victim twice told defendant she had to leave. She twice attempted to leave. The evidence overwhelmingly established that defendant accomplished the sexual offenses by use of force and/or fear. Thus, the acts were undeniably committed in opposition to any "consent" or "will" that could conceivably have been manifested by the seven- or eight-year-old victim.
C. UNANIMITY INSTRUCTION
Defendant contends the court erred in not giving the jury a sua sponte unanimity instruction requiring it to agree on which act or acts of force or duress any potential convictions for the aggravated offenses would be based. We disagree. We hold the unanimity instruction is not intended to apply to acts that form the basis of the theory of the manner in which the defendant committed the substantive offense of aggravated sexual assault.
A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. "[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] . . . The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (Id. at pp. 1132-1133, last italics in original.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (Russo, at p. 1133.)
In People v. Jones (1990) 51 Cal.3d 294, the court rejected "the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described." (Id. at p. 321, italics added.) Thus, the court concluded, "[t]he unanimity instruction assists in focusing the jury's attention on each such act related by the victim and charged by the People. We see no constitutional impediment to allowing a jury, so instructed, to find a defendant guilty of more than one indistinguishable act . . . ." (Ibid., italics added.) "[W]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at p. 322, italics added.)
In People v. Taylor (2010) 48 Cal.4th 574, the defendant argued that "because the prosecution presented two distinct factual scenarios in support of its burglary theory, the trial court erred in failing to give a unanimity instruction regarding that offense." (Id. at
p. 627.) The court noted that in Russo it "discussed the crime of burglary to illustrate 'the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not.'" (Taylor, at p. 627.) Thus, where the evidence showed two different entries into two separate homes on two separate dates, both with burglarious intent, the unanimity instruction would be required. (Ibid.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty. [Citation.]" (Russo, at p. 1132.) Thus, where the entry element of burglary could have been committed at either one of two different times, both of which were argued to the jury, no unanimity instruction was required. (Taylor, at pp. 627-628.)
Here, no unanimity instruction was required because the elements of force or duress were not discrete crimes charged by the People, which could independently subject defendant to conviction. The People did not charge each act of force or duress. Neither could defendant have been convicted for each act of force or duress in this instance. Thus, juror unanimity was unnecessary because there was no multiplicity of charged offenses for force or duress upon which the jurors could disagree on which acts defendant committed, but, nevertheless, amalgamate the acts in order to convict him. Defendant cites no case holding otherwise. Indeed, in Soto, "[t]he prosecutor explained, with regard to the statutory factors of force, violence, duress, menace, and fear: 'You don't have to find all of them, just one of them is enough. It's also enough if some jurors find force and some jurors find duress, but you all must unanimously agree that it was accomplished [by one or the other].'" (Soto, supra, 51 Cal.4th at p. 236.) No complaint or concern regarding unanimity was exhibited in that case despite the prosecutor's explicit argument that the jury could disagree on the acts constituting force or duress, but still convict the defendant.
We do not address defendant's contention that there was cumulative prejudicial error below, because we have found no error. (People v. Bolin (1998) 18 Cal.4th 297, 335.)
D. SECTION 654
Defendant contends the sentencing court erred in declining to stay execution of sentence on count 2 pursuant to the dictates of section 654. We disagree.
On January 19, 2010, the People filed a sentencing brief in which they maintained the court was required to impose two consecutive terms of 15 years to life for each of the offenses for which defendant was convicted, pursuant to section 667.6, subdivision (d).The People made no mention of section 654 in their sentencing brief. Defendant filed no response. In the probation officer's report filed February 2, 2010, the officer posited that "defendant had sufficient time to stop his illegal behavior between the two acts but chose not to. This is evident because he stopped and changed the camera position, and rearranged the victim to another bed." Thus, the probation officer recommended that the court find that section 654 did not apply and sentence defendant to two consecutive terms of 15 years to life.
Section 667.6, subdivision (d) provides that "[a] full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same 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." Section 288a, subdivision (c)(2)(B) is one of the offenses listed under section 667.6, subdivision (e).
At sentencing, the People argued section 667.6 required that the court determine whether "defendant had a reasonable opportunity to reflect upon his actions and, nevertheless, resumed the sexually assaultive behavior." The People contended that he had. The court agreed it was required to sentence pursuant to section 667.6. Nevertheless, the court concluded that for purposes of section 667.6, the acts of oral copulation, where conducted on a single occasion, required concurrent sentencing: "In viewing the video, it appeared that the . . . two acts of oral copulation occurred in very close proximity to one another, and that the only difference between the first act and the second act was that the defendant removed the child from the . . . first bed, stood her up, readjusted the camera, re-placed her on the second bed on her stomach rather than on her back as she was on the first bed, and then proceeded to orally copulate her again, or continuing the oral copulation in a different position, depending on your point of view. It appeared to the Court that, given the duration of time between the two acts, the spatial connection between the two acts, and the fact that the only difference in the acts was that one oral copulation occurred with the child on her back, the second act occurred with the child on her stomach, that this is, in fact, a continuation of a single occasion rather than a separate occasion and that . . . the concurrent sentences would be appropriate rather than consecutive." The People responded that there was a sufficient interval between two acts for defendant to reconsider completing the second act of oral copulation; thus, consecutive sentences would be appropriate.
Nevertheless, the court concluded that it was "of the opinion that the oral copulation in two different positions on two different beds occurring in a matter of minutes, that there was never a break in the activity, that the defendant removed the child from the first bed, held her between the two beds, adjusted the camera, put her back on the second bed, and then orally copulated her from behind rather than the front—there was never a break in the defendant's activities—that pursuant to [section 667.6, subdivision (d)], that these were not separate occasions. This was all one occasion." Thus, the court sentenced defendant to two concurrent terms of 15 to life. No mention of section 654 was made by the People, defendant, or the court during sentencing.
Section 654, subdivision (a) 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." "With respect to punishment imposed under statutes that define a criminal offense, it is well settled that '[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) "'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (Ibid., italics omitted.) However, a defendant might also harbor multiple criminal objectives, which are independent of and not merely incidental to one another. Under such circumstances, the defendant "may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
"'[T]he [forfeiture] doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court . . . .' [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 295.) "'"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." [Citation.]' [Citation]" (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310.)
"[S]ection 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the 'sole' aim of achieving sexual gratification." (Harrison, supra, 48 Cal.3d at p. 325.) Section 654 does not bar "multiple punishment for rapidly repeated crimes . . . ." (Ibid.)
In Harrison, the victim awoke to a noise in her house. When she reached for the phone, the defendant ran into the room, hit the victim in the face, reached inside her underwear, and inserted his finger into her vagina. The victim pulled away, dislodging the defendant's finger. The defendant continued to hit her, pushed her down on the bed, put his hand over her mouth, and inserted his finger into her vagina again. The victim rolled to the other side of the bed displacing the defendant's finger. The defendant grabbed the victim's hair as she attempted to run, punched her in the throat, and inserted his finger into her vagina a third time. They continued to struggle in this position until the victim told him if he stopped they could have intercourse. The defendant relaxed; the victim ran into the bathroom where she locked the door and alerted her neighbors by screaming. (Harrison, supra, 48 Cal.3d at p. 325.) The first insertion lasted four seconds, the second insertion lasted approximately five seconds, and the last insertion lasted approximately five seconds, with the entire attack taking from seven to 10 minutes. (Id. at pp. 325-326.) The jury convicted the defendant of three counts of forcible acts of sexual penetration. The defendant contended at sentencing that section 654 barred multiple punishment where only one type of sexual crime is committed during a brief assault. The sentencing court refused to stay sentence on any of the sex offenses. The appellate court affirmed the sentence. (Harrison, at p. 326.) The California Supreme Court held that section 654 did not "preclude punishment for each of the sex offenses committed by [the] defendant." (Id. at p. 338.)
"[A] 'defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.' [Citation.]" (Harrison, supra, 48 Cal.3d at p. 336.) "[N]o special treatment is to be afforded to a defendant under section 654 simply because he chose to repeat, rather than to diversify or alternate, his many crimes. [Citations.] [¶] To adopt [a contrary] approach would mean that 'once a [defendant] has committed one particular sexual crime against a victim he may thereafter with impunity repeat his offense,' so long as he does not direct attention to another place on the victim's body, or significantly delay in between each offense. [Citation.] [I]t is defendant's intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable." (Id. at pp. 337-338.) "[T]here is no legal or logical bar to separate punishment where, as here, each of defendant's [recopulations] was clearly volitional, criminal and occasioned by separate acts of force. . . . [D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior. . . . Whether defendant ends a break in the activity by renewing the same sex act (as here) or by switching to a new one [citation], the result under section 654 is the same." (Id. at p. 338.)
Here, substantial evidence supports the sentencing court's implied determination that defendant harbored a separate intent or objective for each of the two oral copulations of which he was convicted. As discussed above, after completing his first oral copulation of the victim, he asked her if she liked it. She replied that she did not. The victim got up off the bed, attempted to get dressed, and attempted to leave. Defendant prohibited her from doing so. He essentially attempted to give it one more go to see if she would like it. He then grabbed the victim, positioned her on the bed, held her down on her stomach, spread her legs, and orally copulated her again. Defendant had every opportunity to walk away from the victim after committing his first sexual offense against her. He chose not to do so. Instead, he resumed his sexually assaultive behavior with separate acts of force. "[W]e find no support for defendant's contention that multiple, nonconsensual sex acts of an identical nature, committed in short succession against a single victim, constitute a single offense." (Harrison, supra, 48 Cal.3d at p. 334.)
Defendant maintains that because the court determined pursuant to section 667.6, subdivision (d) that defendant's separate acts of oral copulation were not separate occasions requiring consecutive sentences, it inherently determined section 654 was likewise applicable. Thus, the court should have stayed sentence on one of the counts. However, the analyses required to be conducted in order to render appropriate sentences pursuant to sections 654 and 667.6 are completely different. While the terminology used in sentencing statutes may be similar or even identical, they do not have consistent meanings; thus, the language and analysis conducted in a section 667.6, subdivision (d) determination is of limited, if any, assistance in determining whether the dictates of section 654 should apply. (See People v. Lawrence (2000) 24 Cal.4th 219, 226; see also People v. Deloza (1998) 18 Cal.4th 585, 594-595; 3 Witkin & Epstein, Cal Criminal Law (3d ed. 2000) Punishment, § 364, pp. 475-476.) Indeed, at least one court has held that "the multiple punishment provisions of section 654, subdivision (a) are irrelevant[;] the 'same occasion' language in section 667.6, . . . applicable to sex offenses is not closely related and only marginally related to sentencing in cases such as this; the term "'same occasion' refers at least to a close temporal and spatial proximity between the acts underlying the current convictions' although other factors may apply. [Citations.]" (People v. Garcia (2008) 167 Cal.App.4th 1550, 1566.) Thus, the court's reasoning when determining whether to apply section 667.6, subdivision (d)'s requirement of consecutive sentences was inapplicable to its determination under section 654 of whether to stay execution of sentence on one of the counts.
E. CUSTODY CREDITS
Defendant contends the sentencing court erred in neglecting to award defendant any custody credit, either actual or good conduct, upon its rendition of sentence. The People agree; however, the parties disagree over the number of actual credit days to which defendant is entitled.
The probation officer calculated defendant's total number of actual credit days as 955, including the day of his arrest on July 1, 2007, through the sentencing date of February 11, 2010. The probation officer also calculated defendant's total conduct credit as 143 days, for a total recommended award of 1,098 days of credit. The trial court awarded no credit after sentencing defendant. "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. [Citations.]" (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Defendant maintains the probation officer incorrectly calculated defendant's total actual days spent in custody; he maintains it should be 957 instead of 955 actual days of credit utilizing a day and date calculator available on the Central California Appellate Program's website. The People agree the probation officer incorrectly tabulated the number of actual days of custody, but maintain the true number should be 956, not 957 days. Our own date calculator, and another found on the Internet, both reflect 956 days, not 957. However, as defendant notes, "[t]he sentencing court should give credit for the day of arrest, the day of sentencing, and all days in between." (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124.) Only the date calculator utilized by defendant includes both the starting and end date in the total number of days counted, as required in computing in-custody time. Thus, we agree with defendant that he should be awarded 957 days actual and 143 days of conduct credit for a total of 1,100 days of credit.
http://capcentral.org/resources/charts_calc/datecalc.aspx .
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DISPOSITION
The trial court is directed to award defendant 1,100 days of total custody credits, consisting of 957 actual and 143 conduct days. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
KING
J.