Opinion
A113637
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. DEMETROIS DIXSON, Defendant and Appellant.
Appellant Demetrois Dixson was tried before a jury and convicted of multiple felony counts, including forcible sexual offenses, against his girlfriend A.H. (Pen. Code, §§ 261, subd. (a)(2) [three counts forcible rape]; 261.5, subd. (c) [unlawful sexual intercourse with a minor]; 243, subd. (d) [battery with serious bodily injury]; 273.5, subd. (a) [two counts corporal injury to a cohabitant]; 286, subd. (c)(2) [forcible sodomy]; 288a, subd. (c)(2) [forcible oral copulation]; 422 [making criminal threats]; 273.6, subd. (a) [three counts disobeying a domestic relations court order]; 136.1, subd. (a)(2) [attempting to dissuade a witness from appearing in court]; 136, subd. (b)(2) [dissuading a witness from assisting the prosecution]; 166, subd. (c)(1) [disobeying a stay-away order].) The court granted appellant a new trial on one of the forcible rape counts and sentenced him to prison for an aggregate term of 27 years four months on the remaining counts.
Further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, appellant contends: (1) the evidence was insufficient to sustain his convictions for battery with serious bodily injury, making criminal threats, and one count each of corporal injury to a cohabitant and forcible rape; (2) the court should have instructed on attempting to make a criminal threat as a lesser included offense of making a criminal threat; (3) the court should have removed a juror who indicated during trial that appellant had been looking at her in a way that made her uncomfortable; (4) Alameda County, where the case was tried, was not the proper venue for the charge of dissuading a witness from assisting the prosecution; (5) the court erred when it imposed full strength consecutive sentences under section 667.6, subdivisions (c) and (d) on three counts; and (6) the imposition of an upper term sentence for one of the counts of corporal injury to a cohabitant violated his right to a jury trial under Cunningham v. California (2007) __ U.S. __ (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We agree with this last contention, but otherwise affirm.
Under section 1170.1, subdivision (a), consecutive subordinate sentences must ordinarily be limited to one-third of the middle term. Section 667.6, subdivision (c) allows the court to impose full strength consecutive sentences for certain violent sex offenses, and section 667.6, subdivision (d) mandates full strength sentences for violent sexual offenses involving separate victims or the same victim on separate occasions.
FACTUAL BACKGROUND
Prosecution Evidence
A. grew up in Lancaster, California, a small town in Los Angeles County. Her parents, who were from Sri Lanka, were very protective of her and did not allow her to date in high school. In August 2004, when she was 17 years old, A. began her freshman year at the University of California, Berkeley, where she lived in a dorm room. Her close friend Anita Suri also enrolled at Berkeley.
One afternoon in late September 2004, A. was approached by appellant in a campus yogurt shop. They spoke briefly and exchanged telephone numbers. Appellant was 28 years old at the time, although he told A. he was 21. He called her a few minutes after leaving the shop and A. agreed to join him for dinner.
Appellant bought a pizza and lemonade at the supermarket and then drove A. to a sparsely furnished apartment in Fairfield. After they finished the pizza, appellant kissed A., who felt nervous but did not say anything. He tried to take her pants off, but she told him she didnt want to do anything. Appellant removed her pants, pushed her legs open and forced her to have unprotected intercourse. He refused to drive her home when he had finished, claiming to be tired. The next morning, he wanted to have sex again, but A. told him she needed to get to class. He drove her back to Berkeley. A. did not believe she had been raped because appellant had not used violence, and she was too embarrassed to tell anyone what had happened. (Counts 1 & 2, forcible rape (§ 261, subd. (a)(2)) and unlawful intercourse with a minor (§ 261.5, subd. (c)).)
Appellant called A. and they saw each other again. They argued about whether appellant had raped her on their first date, but A. continued to see appellant because he was nice to her in other ways. She did not tell her parents about the relationship because they would have disapproved. Over time, appellant became abusive, and A. became estranged from her friends.
In October 2004, A. met appellant in San Diego. After an argument in a restaurant about how little she ate, he left her in the restaurant and drove away. He later returned and told her he and some friends would rape her and leave her in a ditch. Later during the visit to San Diego, appellant poured a drink over A. and wrapped a pillow case around her neck so tightly she could not breathe. Once, while in a shopping mall in Fairfield, appellant checked the memory of A.s cell phone and saw that her old boyfriend had called. He spat in her face and left her stranded at the mall; when he returned and discovered her talking on her phone to a friend he grabbed the phone and told the friend not to call A. again.
Shortly before Thanksgiving, A. learned she was pregnant. Appellant seemed happy at first, but after an argument told her to get an abortion. A. suffered a miscarriage a few days later. A. told appellant she wanted to break up, but he threatened her with violence so she continued to see him. Students in the dormitory sometimes heard A. cry as appellant yelled at her and threatened her. At least one student noticed bruises on A.s neck, face and arms.
On December 21, 2004, appellant and A. argued about some charges appellant had run up on her cell phone. Appellant pushed and choked A., then grabbed one of her fingers and squeezed her cheeks for about 30 seconds, until the inside of her cheeks were cut by her teeth. A. started to spit up blood and they continued to argue for about half an hour. The dormitorys resident director, Cora Gerdes, came to the door after another resident reported that someone was crying and yelling in A.s room. Gerdes spoke privately with A., who said she was crying because she was feeling very ill, but claimed not to need help. Appellant had told A. that if she ever reported him, he would come after her. (Count 3, battery with serious bodily injury (§ 243, subd. (d)).)
A. spent the winter break at her parents house in Lancaster. Her jaw was still swollen from appellants attack and the skin of her interior cheeks seemed to be infected. Her parents took her to see their family doctor, but she could not explain the injuries to him and said she might have caught mononucleosis. The doctor believed her symptoms were consistent with either mononucleosis or trauma.
Appellant called A. nearly every day over her break to threaten her and ask her for money. He told her once that if she didnt send money, he and his cousins would come to her house with a gun. Appellant also called A.s mother and, using different names, demanded to know A.s whereabouts. When she went to the airport to fly back to Berkeley, appellant picked her up and drove her to San Diego, causing her to miss class. She gave him money and got more from her parents.
After winter break, appellant began living in A.s dorm room full time. A.s roommate Jessica Chan saw appellant and A. argue several times. Once A. called the police to get appellant out of the room, but appellant hung up the phone. A. did enlist the campus police in helping her get appellants things out of her room, but she did not tell them about the violence. Afterwards, appellant drove her around and yelled at her about contacting the police. He hit her and squeezed her forehead with his hands, but later apologized and put bandages on the cuts he had caused.
On January 25, 2005, A. took a handful of Tylenol pills because she "couldnt deal with it anymore." Appellant took her to the emergency room, where she said she had taken the pills because her stomach had been hurting. A nurse pulled A. aside, commented that appellant was very controlling, and asked whether she had taken the pills because of appellant.
On February 17, 2005, appellant became angry with A. when her friend Anita arrived to watch television while he was still in bed. He asked Anita to wait outside and squeezed A.s cheeks until they were bleeding on the inside and she was choking on her own blood. He punched her in the leg and told her he hoped she couldnt walk. (Count 4, corporal injury on a cohabitant (§ 273.5, subd. (a)).)
After this incident, A. told Anita everything that had been going on. Anita did not call the police because A. wanted to handle it her own way. Later that month, appellant punched A. in the mouth and caused her lip to bleed after she told him she was going out with Anita. When they stopped at a service station to get ice for her lip, he hit her again because she did not tell him the ice was melting.
On March 13, 2005, appellant dragged A. downstairs from her dorm room after he had to spend the night in his car because her roommate Jessica was working on a term paper. He hit her in the elevator, dragged her into the recycling room, and put his knee on her neck. When he had finished his attack, A. had scratches on her face and was bleeding. (Count 5, corporal injury on a cohabitant (§ 273.5, subd. (a)).)
Appellant stayed in A.s dorm room while A. went home to Lancaster on spring break. He looked on her computer and saw she had been corresponding by email with her friend Justin Johnson. Appellant called A. and yelled at her for talking to another man and then drove to Lancaster and began leaving messages on her cell phone. Appellant told her that if she did not meet him he would crash into her parents car or throw a brick through their window. A. agreed to meet appellant at a motel.
When she arrived at the motel, appellant told A. to get into his car, where he threw down copies of A.s email messages with Justin and yelled at her for telling other people their business. He hit her in the mouth, causing it to bleed. When she refused to give him Justins phone number, he grabbed her leg and squeezed it, stating he would rip her flesh out. Appellant drove back to the motel and told A. to go into the room, which she did, because she knew he would follow her if she did not. Inside the room, appellant hit her on the face and told her she "better give him some to calm him down." A. took off her clothes because she was afraid. She was crying and her mouth was bleeding, but appellant forced her to orally copulate him. After that, he raped her, sodomized her and urinated on her, hitting her in the face with an open hand. Appellant hit her again on the side of her head as she was getting dressed to leave. (Counts 6, 7 & 8, forcible rape (§ 261, subd. (a)(2)), forcible sodomy (§ 286, subd. (c)(2)), forcible oral copulation (§ 288a, subd. (c)(2)).) A. went to dinner with Anita and another friend that night, both of whom urged her to report appellant to the police. She told them she wanted to handle things her way, without angering appellant.
In late March, A. learned she was pregnant again and told appellant. He pushed her into a closet during an argument on that same night. While driving her around the next day, he punched her in the face when she could not remember something he had said. A. emailed her friend Justin and asked to talk, but when he tried to call her appellant took the phone away and told him to stop calling. Appellant repeatedly threatened Justin and told him to stay away from A.
On April 1, 2005, appellant took a trip to San Diego. Before he left, he and A. argued because he wanted to have sex and she said she did not because her stomach hurt. Appellant promised to go slowly and not hurt her, but when they had sex A. cried the whole time and said he was hurting her. (Count 9, forcible rape (§ 261, subd. (a)(2)).)
On April 5, 2005, A. met with resident director Gerdes, who wanted to ask her about reports that someone else was living in her dorm room. A. told Gerdes about appellants violent conduct, but said she did not want to go to the police without first learning how long appellant could be held in custody. Gerdes notified security in the dormitory that appellant was no longer welcome there.
Appellant checked A.s voicemail and learned of her meeting with Gerdes. He called her from San Diego and said he was going to fly to Berkeley that night, punch her in the face and stomach, and give her a "Demetrois abortion." A. told Gerdes about the call and spent the night with Anita. Appellant flew back to the Oakland airport that same evening, where he called A. and told her to pick him up. A. refused to pick him up. (Count 10, criminal threats (§ 422).)
Appellant went to A.s dormitory that evening and was told by Gerdes to leave. He responded that A. was his girlfriend, that she was pregnant with his child, and that they were just having a hard time. Gerdes overheard appellant yelling at A. over the phone. Appellant called A.s parents in Lancaster later that same evening and told them he and A. were in love, that A. was pregnant, and that she was afraid to tell them of the relationship because she knew they would not approve.
Appellant returned to A.s dorm room the next morning, where Anita answered the door while A. remained inside. Appellant spoke to Anita for several hours in the lounge, telling her that everything was unfair and he wanted to work things out with A. Anita told appellant she would talk to A. on his behalf. With Gerdess help, the girls sneaked out of the dorm room and met A.s mother, who had arrived in Berkeley that morning.
A. reported appellant to the police and obtained a restraining order. Appellant was arrested and was served with the restraining order on April 12, 2005, while he was in jail. Appellant called A. on April 13 and asked her to drop the charges. A. told him he should not be calling her. He telephoned her several more times that day while she was with her mother and two police officers. One of the officers got on the telephone and told appellant that he had a restraining order and should not be contacting A. Appellant said he was confused because she had called him. (Counts 11, 12 & 13, misdemeanor disobeying a domestic relations restraining order (§ 273.6, subd. (a)).)
On April 16, 2005, Anita received about 10 telephone calls from appellant, in which he told her he was innocent and she was the only one who could talk to A. about changing things. Anita pretended to agree with appellant because she was afraid of him. A woman called her from a blocked telephone number a few minutes later and said, "Demetrois knew where [Anita] lived in Berkeley and at home." Appellant called again and told Anita he was recording their conversation; Anita again pretended to agree with appellant about his version of various events because she was afraid of him. (Count 14, attempting to dissuade a witness (§ 136.1, subd. (a)(2)).)
Also on April 16, appellant left messages on A.s voice mail in which he played portions of his conversation with Anita and tried to discourage her from prosecuting the case. He did not stop calling her until June. (Count 15, dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)), and count 16, knowingly violating protective order (§ 166, subd. (c)(1)).)
A. was not the first woman appellant had victimized during an intimate relationship. In 2000, he met L.D. in a shopping mall and they began dating. A month or so after they met, he began hitting her regularly. He once put a gun to her head and would frequently squeeze her mouth so hard that the inside of her mouth and jaw would be sore. Despite the abuse, the couple married. The abuse escalated and in 2003, L. learned she was pregnant. Appellant continued to hit her during the pregnancy and threatened to do a number of violent acts to cause a miscarriage. L. gave birth and, although she tried to give appellant a chance, the abuse continued. She eventually left appellant in early 2004.
L.D. and Jamie A. were called as witnesses by the prosecution and testified to prior acts of domestic violence admissible under Evidence Code section 1109.
Appellant met Jamie A. in February 2004 when he introduced himself to her in a parking lot. They had moved in together within a few weeks and she continued to see him until October 2004. About a month into the relationship, appellant became abusive. He threw a speaker at her during an argument, cutting her lip, and once grabbed her cheeks and squeezed so hard that her teeth cut the inside of her mouth. Jamie finally broke off the relationship and reported her car stolen when appellant refused to return it to her. By that time, appellant was dating A., who posted bail when appellant was caught driving Jamies car and was arrested for driving a stolen vehicle.
According to Dr. Linda Barnard, an expert on domestic violence, one of the misconceptions about a domestic violence situation is that women who dont leave the relationship either enjoy it or are exaggerating the extent of the abuse. Domestic violence is about power and control, and the perpetrator usually denies responsibility and suggests instead that the victim is the one to blame. The typical cycle of abuse involves tension building, then verbal abuse, then pushing or shoving, followed by more acute physical, sexual or emotional abuse. After this apex of conflict, there is a honeymoon period where the abuser apologizes. This is especially damaging for the victim, who comes to deny her own reality. Many victims of domestic violence exhibit the symptoms of post-traumatic stress disorder, which places them in a numbed emotional state. They also lie about or minimize the abuse because of their "traumatic bond" with the abuser and because they are embarrassed about submitting to such treatment.
Defense Evidence
Appellant testified on his own behalf and denied that he was ever violent with A., Jamie or L., nor did he ever force A. to have sex. A. was very jealous about other women, and he thought she might be lying about her child being his because she wanted to get him to assume the role of the babys father. Appellant did not read the restraining order A. obtained because he was frustrated and did not know what was going on. In his view, his relationship with A. had been "perfect."
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support the convictions on four of the counts: battery with serious bodily injury (count 3), corporal injury to a cohabitant (count 5), forcible rape (count 9) and criminal threats (count 10). We reject the claims.
The standard for reviewing a challenge to the sufficiency of the evidence is well established. We review the entire record to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The evidence is viewed in the light most favorable to the verdict, presuming in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (See ibid.) The relevant question is not whether we are convinced of appellants guilt beyond a reasonable doubt, but whether any rational trier of fact could have been so persuaded. (People v. Hernandez (2003) 30 Cal.4th 835, 861.)
A. Battery With Serious Bodily Injury (count 3)
Appellant was convicted of battery with serious bodily injury based on an incident that occurred in A.s dorm room on December 21, 2004. After an argument about a $300 charge appellant had run up on A.s cell phone bill, he pushed and choked her, grabbed one of her fingers, and squeezed her cheeks for about 30 seconds. The inside of A.s cheeks were cut by her teeth and she started to spit up blood. Her cheeks were swollen the next day, the interior cuts appeared to be infected, and she had trouble opening her mouth and swallowing. A doctor who examined her soon after saw some swelling and fullness in her neck and jaw area, and determined that she could not lower her jaw more than a quarter of an inch. Appellant contends the evidence supporting the battery charge was insufficient because A.s injuries were "at most, moderate rather than [a] `serious impairment of physical condition, " as required by statute.
Section 243, subdivision (d) applies "[w]hen a battery is committed against any person and serious bodily injury is inflicted on the person." "Serious bodily injury" is defined as "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§ 243, subd. (f)(4).) It is essentially equivalent to the definition of "great bodily injury" presented in other criminal statutes. (People v. Beltran (2000) 82 Cal.App.4th 693, 696.)
The question of whether a victim has suffered serious bodily injury is one of fact, not of law, and a jurys determination of that issue must be upheld on appeal if supported by substantial evidence, even if the circumstances might be reconciled with a contrary finding. (See People v. Escobar (1992) 3 Cal.4th 740, 750.) The jury here could reasonably conclude that A.s injuries were a "serious impairment of physical condition" causing a protracted impairment of function in her jaw. (See Escobar, supra, at p. 744 [rape victim suffered great bodily injury due to extensive abrasions and bruises, injury to neck and vaginal pain affecting ability to walk]; People v. Sanchez (1982) 131 Cal.App.3d 718, 733-734 [abrasions and lacerations on victims back and serious swelling and bruising of the eye was great bodily injury]; People v. Jamarillo (1979) 98 Cal.App.3d 830, 836 [multiple contusions over body causing swelling and severe discoloration amounted to great bodily injury].) That some of the authorities cited by appellant involved more significant injuries than those suffered by A. does not mean that no reasonable trier of fact could have concluded her injuries were serious under section 243, subdivision (f)(4).
B. Corporal Injury to Cohabitant (count 5)
Appellant was convicted in count 5 of corporal injury to a cohabitant under section 273.5, subdivision (a), which prohibits the willful infliction of "corporal injury resulting in a traumatic condition" upon a spouse or cohabitant. The charge was based on a March 13, 2005 incident, when, during an argument in A.s dorm, appellant grabbed her by the hair, pulled her into the elevator, "banged [her] head on the elevator wall . . . a couple of times," dragged her into a recycling room off the ground floor lobby, and pressed his knee against her neck so she could not breathe. A. had some scratches on her face and remembered appellant wiping blood from her face, although she could not remember where the blood came from. Appellant contends this count must be reversed for insufficient evidence because the harm A. suffered was "de minimis."
A "traumatic conduction" under section 273.5 is defined as "a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (c), italics added.) As a result of appellants attack, A. suffered scratches to her face and bled. This was an injury sufficient to constitute a traumatic condition under section 273.5, subdivision (a). (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 [bruises constituted traumatic condition]; People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [reddened skin on wifes nose and face resulting from blows by her husband].) We are not persuaded by appellants attempt to equate A.s injuries to those at issue in People v. Abrego (1993) 21 Cal.App.4th 133, 137-138, in which the court found insufficient evidence of traumatic condition on a count that was based on an incident in which the victim had not been injured, had not been bruised, had suffered no pain, and had not sought medical treatment after being hit by her husband.
C. Forcible Rape (count 9)
Appellants conviction of rape in count 9 was based on an incident in A.s dorm room on April 1, 2005, during which appellant told her she "better give him some" sex before he left on a trip to San Diego. A. told him she didnt want to, and appellant told her he would "go slow" and not hurt her. He then had sex with her for 15 minutes, during which time A. cried and told him he was hurting her. Appellant argues this evidence was insufficient to show that appellant had accomplished the rape by means of force, fear or duress.
Section 261, subdivision (a)(2) defines forcible rape as an act of sexual intercourse "accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Duress is "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiescence in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress." (§ 261, subd. (b).) The jury was instructed on both theories of forcible rape.
A. testified that appellant was frequently violent and had forced sex upon her in late 2004 and early 2005. In March 2005, he had driven her to a motel room in Lancaster where he beat her, raped her, sodomized her and forced her to orally copulate him. Against this backdrop, appellants statement to A. on April 1, 2005 that she "better give him some," can be reasonably construed as an implied threat of violence that coerced her into acquiescing to a sexual act she did not want to perform. Substantial evidence supports a verdict of rape accomplished by means of fear or duress, and we need not consider whether the evidence also supported a finding of rape by force, violence or menace.
Appellant argues that the People did not prove the act of intercourse was against A.s will because on cross-examination, she could not remember whether she had agreed to the sex or whether it "just happened." Rape by duress contemplates that a victim may acquiesce to intercourse out of fear despite it being against her will. The jury in this case could reasonably so find.
D. Criminal Threats (count 10)
Appellant was convicted of criminal threats under section 422 based on a telephone call he made to A. on April 5, 2005, while he was in San Diego and she was in Berkeley. During their conversation, he accused A. of seeing another man and told her he was going to fly to the Bay Area to punch her in the face and stomach. Making the threat more specific, he told A. he would give her a "Demetrois abortion." At about 9:00 p.m., appellant called A. from the Oakland airport and told her to pick him up at the airport, but A. refused. A. reported what was happening to the dormitorys resident director, and spent the night with her friend Anita because she was afraid. The next day, appellant came to Anitas room and tried to contact A. He was arrested later that day.
Section 422 applies to "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety[.]" (Italics added.) Appellant argues the evidence does not support the verdict on this count because there was no immediate prospect of execution of his threat to come to the Bay Area and give A. a "Demetrois abortion." He notes that he was hours away in San Diego when he placed the call during which the threats were made, and that A. had already decided not to see him again.
Notwithstanding appellants presence in San Diego at the time of the threats, the jury could reasonably conclude there was an immediate prospect of the threats execution. An "immediate prospect of execution" has been found in cases where the defendant was incarcerated (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431) or in police custody (People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449). Section 422 does not require that threats be capable of being carried out immediately, rather, it is the immediate prospect of execution that brings a statement within section 422.
II. Failure to Instruct on Attempting to Make a Criminal Threat as a Lesser Included Offense
The crime of attempting to make a criminal threat under sections 664 and 422 is a lesser included offense of making a criminal threat under section 422. (People v. Toledo (2001) 26 Cal.4th 221, 229-231.) Appellant argues that assuming the evidence was sufficient to support his conviction of criminal threats under count 10 (see infra), reversal of the count is required because the court failed to instruct on attempt as a lesser charge. We disagree.
Even in the absence of a request, the trial court must instruct on a lesser included offense when the evidence raises a question as to whether all of the elements of the charged offense were present. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Instructions need not be given when there is no evidence the crime was less than that charged. (Ibid.) In a noncapital case, any error in failing to instruct on a lesser included offense is reviewed under the standard for state law error in People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Breverman, at p. 178.)
A defendant properly may be found guilty of a criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, "the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (People v. Toledo, supra, 26 Cal.4th at p. 230.) One element of criminal threat requires the statement made to be so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat. (Id. at pp. 227-228.)
Here, the conviction of criminal threats was based on a telephone call appellant made to A. while he was in San Diego and she was in Berkeley, during which he threatened, among other things, to give her a "Demetrois abortion." Appellant argues that the jury might have believed he was guilty only of an attempted criminal threat, because "[A.] had already reported appellants conduct. . . and decided that she was no longer going to have contact with him. On this record a reasonable jury might have concluded there was `no immediate prospect of execution of the threat. " Assuming without deciding that substantial evidence supported an instruction on attempted criminal threats, the omission was not prejudicial. Section 422 does not require an immediate ability to carry out the stated threat, only that there be an immediate prospect of execution. (In re David L. (1991) 234 Cal.App.3d 1655, 1660; People v. Gaut, supra, 95 Cal.App.4th at p. 1431 [defendant violated section 422 by threatening the victim while incarcerated].) In light of appellants extensive history of assaulting and victimizing A., it is not reasonably probable the jury would have concluded there was no immediate prospect he would execute the threat to harm her yet again. Any suggestion to the contrary is belied by the evidence that appellant in fact flew back to the Bay Area on the same evening he made the threat, and tried to contact her in person.
III. Failure to Remove Juror No. 7
Appellant argues that the judgment must be reversed because a juror who expressed discomfort about the way appellant was looking at her during the trial was allowed to remain on the jury over his objection. He contends the juror was biased against him and that her presence on the jury violated both section 1089, which requires the discharge of a juror for good cause, and his constitutional right to an impartial jury.
A. Proceedings Below
During appellants testimony at trial, Juror No. 7 sent the court a note stating, "On Thursday I noticed Mr. Dixson was looking at me in a way that made me feel uncomfortable, and I would like for the bailiff to sit next to Mr. Dixson. Thank you." The court questioned her outside the presence of the other jurors:
"The Court: Hi Juror No. 7. Youve given us a note. Ive already put it on the record. [¶] Let me begin by asking, whatever look that you were given by the defendant—is there anything about whats going on that makes you think in some way you could not be fair to both sides at this point?
"Juror No. 7: No.
"The Court: You have some issue about security?
"Juror No. 7: Yeah.
"The Court: The bailiffs only 20 feet away. I really would not want to adjust the seating arrangement. Others might take that—it could be taken in several different ways. Some kind of comment or action by the court because of something other than this or even this, I would assume that jurors would be the last people that the accused would want to offend by [his] actions. [¶] Before I go further, would you elaborate on what you are uncomfortable with in this or how it was caused?
"Juror No. 7: Excuse me?
"The Court: What is your uncomfortableness? How was it caused?
"Juror No. 7: I dont know. Its just the way he—sometimes hell look at me. It makes me feel—I was kind of intimidated, and
"The Court: As long as you can assure both sides that is not something thats going to make you less than fair, not something where, youve made up your mind now, or anything like that. Do you feel you can
"Juror No. 7: Oh, no, that has nothing to do with it, no.
"The Court: Okay, well, let me assure you that Ill try to evaluate all security issues, and Im not sure I can accommodate your request, but you shouldnt feel in some way unsafe.
"Juror No. 7: Okay.
"The Court: Are both sides comfortable—you are comfortable with this at this point?
"Juror No. 7: Yes, Im fine.
. . . . .
"The Court: [W]hat was happening in your mind, what about what the defendant did made you feel you should bring it to the courts attention?
"Juror No. 7: I just, you know, feel uncomfortable, and I thought I should just let you know about it.
"The Court: And you thought that your suggestion might make you feel more comfortable?
"Juror No. 7: Yes."
After this inquiry, the court denied defense counsels request that Juror No. 7 be substituted with an alternate juror. Defense counsel made a motion for mistrial based on the courts refusal to substitute the juror, which was also denied. Appellants testimony continued, during which time defense counsel advised the court that appellant "felt uncomfortable" with Juror No. 7, who was not looking at him during his testimony. The court offered to have the bailiff sit between appellant and Juror No. 7, but defense counsel declined. The court also indicated that while Juror No. 7 was being "very tentative" and had avoided looking at appellant while he was looking right at her, she had watched him when he was paying more attention to the attorney questioning him and was not looking at the jurors.
At the end of the proceedings that day, the court stated: "We have Juror No. 7 who has expressed discomfort—I dont even know if thats the exact words, but that is a word, having to do with being so close to the defendant and the looks hes given her. Counsel has attempted to make the issue more complex by commenting on how little she now looks at the defendant when he testifies. The defendant also apparently expressed some discomfort that he had to testify with her only a few feet away. [¶] Juror No. 7 is an especially attractive person that may play into why the defendant at some early stage was looking at her or she felt she was being looked at more. I dont know. Anyway, if anybody has any case law that suggests once somebody has discussed this discomfort with the court that that somehow means they really should get off the panel, factual setting, any case you want me to look at, I would be happy to consider it. Its kind of unique, and especially in the context where I actually, by defense motion, ordered my bailiff not to sit there, because how would it look, and what its done is perhaps created a discomfort in one of the jurors closest to where the defendant was. [¶] The reality, he [appellant] was a lot more animated Thursday than he was today in terms of sitting there. I dont know that his body was different." The following day, when defense counsel argued that the court had not sufficiently questioned Juror No. 7, the court noted that the juror was "very definitive" and added, "I was very comfortable . . . with her willingness to pay attention, her attentiveness, her candor in responses, very candor of her initial questioning and then in letting us know what she thinks."
B. Discharge for Good Cause
Section 1089 sets forth the criteria for dismissing a sitting juror during trial: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty. . . the court may order the juror to be discharged and draw the name of an alternate. . . ." A showing of actual bias that would have supported a challenge for cause during voir dire is a circumstance that renders a juror "unable to perform his or her duty" within the meaning of this provision. (People v. Nesler (1997) 16 Cal.4th 561, 581.)
When the trial court learns that a juror may be biased, it must make a reasonable inquiry to determine whether discharge is required. (People v. Cleveland (2001) 25 Cal.4th 466, 477, 480.) Discharge is appropriate only when a jurors inability to perform appears in the record as a "demonstrable reality." (Id. at p. 474.) The trial courts decision to discharge or retain a juror is reviewed for abuse of discretion on appeal, and it will be upheld if there is substantial evidence supporting it. (People v. Boyette (2002) 29 Cal.4th 381, 462.) A jurors statement that he or she is unbiased may be relied upon by the court in ruling on a motion to discharge the juror. (See Smith v. Phillips (1982) 455 U.S. 209, 217, fn. 7.)
The note sent by Juror No. 7 indicated that she was concerned that appellant had been looking at her in a way that made her uncomfortable. The court explained to her that the bailiff was nearby and assured her she should feel safe. Juror No. 7 indicated she was comfortable with the courts assurances and that her concerns would not affect her ability to decide the case or be fair to the parties. This was substantial evidence supporting the courts determination that she was not actually biased against appellant. The trial court did not abuse its discretion in denying the defense motion to discharge the juror.
The situation is similar to that presented in People v. Navarette (2003) 30 Cal.4th 458, 499-500, in which a sitting juror sent the following note to the court after a prosecution witness described a gruesome crime scene: "Your Honor, I would like the response to my question not to be answered in court, but done privately, or in the jury room. [¶] Has [defendant] seen or have access to the questionnaires? [¶] My concern is for property and family." The court explained to the entire jury panel that jury questionnaires had only been seen by court personnel and the attorneys. It invited jurors to speak up if they believed they could not be fair to the defendant. (Id. at p. 500.) The Supreme Court rejected an argument that the court should have dismissed the juror: "The [trial] court specifically asked the jurors to report if they could not longer be fair and unbiased, and [the juror who wrote the note] did not pursue the matter further, apparently satisfied by the courts assurances. A decision whether to remove a juror for cause rests in the sound discretion of the trial court." (Id. at p. 500.) If there was no abuse of discretion in Navarette, there was none here.
C. Constitutional Violation
Appellant argues that the denial of his motion to discharge Juror No. 7 deprived him of his constitutional right to trial by a fair and impartial jury. (U.S. Const., amends. VI & XIV; Cal. Const., art. I, § 16.) The trial court did not err when it rejected the defense claim of bias, and appellant cannot establish that Juror No. 7 was improperly influenced such that she was unable or unwilling to decide the case based solely on the evidence before her. (See In re Hamilton (1999) 20 Cal.4th 273, 294.)
IV. Proper Venue for Dissuading a Witness Charge
Appellant was convicted in count 15 of dissuading a witness from prosecuting a crime under section 136.1, subdivision (a)(2), based on evidence that he had telephoned A. while she was at her home in Los Angeles County to discourage her from pursuing the case against him. Appellant moved to dismiss this count in the trial court, arguing that it lacked the jurisdiction to hear this charge because there was no evidence that he was in Alameda County when he made the call. We disagree.
Although some of the sexual offenses took place in Los Angeles County and some in Alameda County, venue for those offenses was proper in Alameda County pursuant to section 784.7, subdivision (a), which provides, "When more than one violation [of specified sexual offenses] . . . . occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses . . . is in any jurisdiction where at least one of the offenses occurred . . . ." Appellant does not argue otherwise.
The trial court, rather than the jury, determines the issue of venue, and the prosecution has the burden of proving the facts establishing venue by a preponderance of the evidence. (People v. Betts (2005) 34 Cal.4th 1039, 1057; People v. Posey (2004) 32 Cal.4th 193, 210.) Section 781 governs venue when the acts or effects of an offense occur in different counties: "When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory." The section is "construed `liberally to achieve its underlying purpose, which is to expand venue beyond the single county in which a crime may be said to have been committed." (Betts at p. 1057.) As used in section 781, the phrase "acts or effects . . . requisite to the consummation" of a crime does not require that those acts amount to an element of the crime. (Betts at p. 1057.)
An act or effect that is not essential to the commission of the offense, but that achieves the unlawful purpose of the person committing the crime, will suffice to establish venue under section 781. (People v. Megladdery (1940) 40 Cal.App.2d 748, 775, disapproved on other grounds in People v. Simon (2001) 25 Cal.4th 1082, 1108.) Here, appellant was convicted of attempting to dissuade A. from testifying as a witness in a case that was filed in Alameda County, based largely on acts occurring in Alameda County. Though the prosecution did not establish that the elements of the section 136.1 violation occurred in Alameda County, it did establish that appellants criminal purpose was to affect A.s testimony in an Alameda County case, and that the effects of that crime were therefore felt in Alameda. Appellants criminal acts were sufficiently connected to Alameda County that venue was appropriate there.
V. Full-Strength Consecutive Sentences
Section 667.6, subdivision (d) mandates full strength consecutive sentences for certain violent sexual offenses "if the crimes involve the same victim on separate occasions." Section 667.6, subdivision (c) gives the court the discretion to impose full strength consecutive terms when the defendant is convicted of multiple qualifying sexual offenses against a single victim on the same occasion. The trial court in this case imposed full strength consecutive sentences (the middle term of six years each) for the forcible rape, sodomy and oral copulation counts that were committed in the motel room in Lancaster during A.s spring break (counts 6, 7 and 8). It explained on the record that it believed such sentences were mandatory under section 667.6, subdivision (d), but that it would also exercise its discretion under section 667.6, subdivision (c) to impose the harsher term. We reject appellants claim that remand is required.
A trial court must state reasons for imposing a discretionary full strength sentence under section 667.6, subdivision (c). (See People v. Belmontes (1983) 34 Cal.3d 335, 348; Cal. Rules of Court, rule 4.425.) The decision to impose a full strength sentence is a sentencing choice that is separate from the decision to order that the sentences run consecutively, but the same reason may support both decisions. (People v. Pena (1992) 7 Cal.App.4th 1294, 1317.) Here, the court stated several such reasons: that the offenses provided "extreme examples" of crimes of power intended to control, demean and brutalize the victim; that each of the acts was a separate transaction designed to humiliate the victim; and that appellant had "thought out" his crimes and executed them in accordance with a plan. These findings amply support the courts exercise of its discretion to impose full strength sentences under section 667.6, subdivision (c).
We also uphold the trial courts finding that the crimes were committed on "separate occasions," making full strength sentences mandatory under section 667.6, subdivision (d). "In determining whether crimes against a single victim were committed on separate occasions . . . the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his . . . opportunity to act, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).)
There need not be a change of location or obvious break in the perpetrators behavior for crimes to be committed on separate occasions. (See People v. Plaza (1995) 41 Cal.App.4th 377, 385 [acts all took place in victims apartment]; People v. Garza (2003) 107 Cal.App.4th 1081, 1087, 1090-1092 [time it took defendant to let go of victims neck, order her to strip, punch her, threaten to shoot her, and strip along with her afforded "ample opportunity to reflect on his actions and stop his sexual assault" between the oral copulation and digital penetration].) Here, appellant entered a motel room with A. and, during a period of 20 to 30 minutes, struck her, told her to get undressed, forced her to orally copulate him, hit her in the face, yelled at her, raped her, told her to turn over and, after she refused, grabbed her by the waist, turned her over and sodomized her. Substantial evidence supports the conclusion that appellant had adequate time to pause and reflect between each of the three forcible sexual offenses.
VI. Cunningham/Blakely
The trial court declared the conviction of corporal injury of a cohabitant under count 4 to be the principal count and imposed the four-year upper term. It relied on the following five aggravating factors: (1) A. was an especially vulnerable victim; (2) appellants conduct with A. and two other women showed him to be a danger to society; (3) appellant felt no remorse; (4) appellant testified untruthfully at trial; and (5) appellant had continued to harass A., even after he had received court orders to stay away from her. Appellant contends the upper-term sentence violated his right to a jury trial because it was based on aggravating circumstances that were neither admitted by him nor found true by a jury, in violation of Blakely, supra, 542 U.S. 296.
Initially, we reject the Peoples contention that defendant has forfeited his claim by failing to object on Blakely grounds. "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) At the time of defendants sentencing in 2006, People v. Black ((2005) 35 Cal.4th 1238, 1244, later vacated sub nom. Black v. California (2007) 549 U.S. ___ ), had upheld the California sentencing scheme under Blakely and was still binding precedent. An objection on this ground would have been futile and, consequently, was not required to preserve the issue. (People v. Sandoval (2007) 41 Cal.4th 799, 837, fn. 4 (Sandoval).)
After the sentencing hearing in this case, the United States Supreme Court in Cunningham declared unconstitutional that aspect of Californias Determinate Sentencing Law that, subject to an exception not relevant here, permitted the trial court, rather than the jury, to make factual determinations supporting an upper-term sentence, and allowed this determination to be made by a preponderance-of-the-evidence standard, rather than by proof beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct at p. 868.) The People tacitly acknowledge that Blakely/Cunningham error occurred in this case, but argue that remand is not required because it was harmless beyond a reasonable doubt. (Washington v. Recueno (2006) 548 U.S. 212; Sandoval, supra, 41 Cal.4th at p. 838.)
Error under Blakely/Cunningham may be harmless when we can determine from the record that the jury would have found true at least one factor authorizing an upper term sentence. (Sandoval, supra, 41 Cal.4th at p. 838.) In conducting this analysis, however, "the reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury . . . [¶] . . . [¶] . . . additionally, to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Id. at pp. 839-840.)
Here, the aggravating factors cited by the court at sentencing were subjective and could have been assessed differently by the jury. While A.s age and relative naïveté suggested "particular vulnerability," she was also an intelligent young woman at a prestigious university surrounded by people who could have assisted her. Appellants conduct as a whole was reprehensible, but a jury presented with the circumstances of the corporal injury count (the sole count with which we are here concerned) would not necessarily have determined that it rendered him a danger to society at large. Appellants defense at trial was that he and A. were engaged in a long term, consensual sexual relationship, that he had not abused her, and that she had brought the charges against him because she feared reprisals by her parents. If the jurors were to determine that appellant actually believed this version of events (a conclusion that is not inconsistent with his conviction on the charges themselves, given the human proclivity to rationalize behavior after the fact), they might not have found perjury or lack of remorse to be aggravating factors as the trial court did. Finally, appellants efforts to contact A. after she reported his conduct to the authorities would not necessarily have been considered a separate aggravating factor when he was already punished for much of that conduct by virtue of his convictions for dissuading a witness and violating a stay-away order.
We cannot conclude the jury would have unquestionably found the factors in aggravation to be true. The case must be remanded for resentencing consistent with the procedure outlined in Sandoval.
We note that appellant has limited his Blakely/Cunningham challenge to the upper term sentence on count 4 and does not raise a similar claim about the full strength consecutive sentences on counts 6, 7 and 8. Although the issue has not been resolved by our Supreme Court, one preBlakely appellate opinion has concluded that section 667, subdivision (d) does not increase the statutory maximum for an offense, and thus requires no jury finding on whether crimes occurred on "separate occasions." (See People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231.) We agree with that analysis. Moreover, the full strength sentences were also based on the discretionary provisions of section 667.6, subdivision (c), which authorizes a full strength sentence based on the convictions alone, and does not require additional factfinding regarding "separate occasions."
DISPOSITION
The four-year upper term sentence for corporal injury to a cohabitant under count 4 is vacated and the case is remanded to the trial court for resentencing in accordance with the procedure outlined in Sandoval, supra, 41 Cal.4th at pp. 843-852. The judgment is otherwise affirmed.
We concur.
JONES, P. J.
SIMONS, J.