Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA063289, Zaven V. Sinanian, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant Wayne Fletcher.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Reshaun D. Harris.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Defendants Wayne Fletcher and Reshaun Harris were charged with several counts arising from crimes they committed against victims Eugene W. and S.T. on January 5, 2004. The joint charges were: carjacking (Pen. Code, § 215, subd. (a)), robbery of Eugene W. (§ 211), assault on Eugene W. with a firearm (§ 245, subd. (a)(2)), robbery of S. (§ 211), assault on S. with a firearm (§ 245, subd. (a)(2)), forcible rape of S. (§ 261, subd. (a)(2)) and two counts of forcible sodomy against S. (§ 286, subd. (c)(2)). Defendant Harris alone was charged with a second count of assault with a firearm on Eugene W. and with felony evading (Veh. Code, § 2800.2, subd. (a)). Various firearm and other enhancements were also alleged.
All undesignated section references are to the Penal Code.
Defendants were tried jointly. The jury convicted Fletcher on all counts. It convicted Harris of carjacking, assaulting Eugene W. and S. with a firearm, and felony evading. It acquitted Harris of all remaining charges.
As to Fletcher, the jury found true the following enhancement allegations: in the carjacking of Eugene and the robberies of Eugene and S., firearm use (§ 12022.53, subd. (b)) and principal armed (§ 12022, subd. (a)(1)); in the rape of S. and the two counts of sodomy against her, firearm use (§§ 12022.53, subd. (b) & 12022.3, subd. (a)); in the rape, sexual assault on multiple victims (§ 667.61, subds. (a)/(e)); and in the assaults with a firearm against Eugene and S., firearm use (§ 12022.5, subd. (a)(1)).
In the carjacking, the jury found not true the allegations that Harris used a firearm (§ 12022.53, subd. (b)) and that he inflicted great bodily injury (§ 12022.7, subd. (a)), but found true the allegation that a principal was armed (§ 12022, subd. (a)(1)). In the assaults on Eugene and S., the jury found not true allegations that Harris used a firearm (§ 12022.5) and not true that he inflicted great bodily injury on Eugene (§ 12022.7, subd. (a)).
In separate charges arising from a sexual assault on November 30, 2003 against victim Laura G., Fletcher alone was charged with six counts, on all of which the jury convicted him. The convictions were for: kidnapping to commit rape (§ 209, subd. (b)(1)), sexual battery by restraint (§ 243.4, subd. (a)), two counts of forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), and attempted robbery (§ 664/211). In a bifurcated proceeding, the jury found true a prior strike against Fletcher (§§ 667, subds. (b)-(i), 1170.21, subds. (a)-(d)) and a prior serious felony (§ 667, subd. (a)(1)).
In the rape counts, the jury found true allegations that Fletcher kidnapped the victim (§ 667.61, subds. (a)/(e)) and sexually assaulted multiple victims (ibid.).
The court sentenced Fletcher to a total term of 202 years to life in state prison, and Harris to a term of 6 years, 8 months. It ordered defendants to pay restitution to Eugene W., jointly and severally, in the sum of $10,041.
Defendants appeal from their respective judgments of conviction. Defendant Fletcher contends: (1) the trial court erred in denying his motions for a mistrial based on the misconduct of defendant Harris’ trial counsel; (2) the trial court erred in denying his motion to sever his case from Harris’; (3) the evidence is insufficient to support the forcible sodomy convictions as to S.T.; (4) section 654 bars separate punishment for the sodomy convictions; (5) the court erred in imposing joint and several restitution; (6) the court erred in imposing fully consecutive terms for the sex offenses; and (7) the abstract of judgment must be corrected to reflect the correct sentence on his carjacking conviction, count 1.
Defendant Harris contends: (1) the trial court erred in excluding evidence of Fletcher’s prior crimes relevant to Harris’ duress defense; (2) the court erred in denying Harris’ motion for a severance; (3) the court gave incorrect instructions on duress; and (4) substantial evidence does not support Harris’ convictions of assault with a firearm against Eugene W. and S.
As to Harris, we affirm the judgment in full. As to Fletcher, we modify the judgment to delete the reference to a life sentence on count 1, carjacking, and to reflect a sentence on that count of 20 years, calculated as follows: the middle term of 5 years, doubled for the prior strike conviction, plus 10 years under section 12022.53, subdivision (b). We direct the clerk of the superior court to prepare an amended abstract of judgment so reflecting, and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment as to Fletcher is affirmed.
FACTUAL BACKGROUND
A. Prosecution Evidence
1. Crimes Against S.T. and Eugene W.
On January 5, 2004, around 1:00 a.m., S.T. and her boyfriend, Eugene W., were sitting in Eugene’s car in an alley behind S.’s house on Mar Vista in Pasadena. Eugene was in the driver’s seat; S. was in the passenger seat. Suddenly the passenger and driver’s doors opened. A man, whom S. identified as defendant Fletcher, reached across S., turned off the ignition, and told S. to get out. She complied, and noticed that Fletcher held a gun in his hand, barrel angled down.
Fletcher told S. not to look and him, and ordered her to the ground. S. turned around, and saw Eugene being dragged to the back of the car by a second assailant. Eugene had been forced out of the car by defendant Harris, who pointed a pistol in his face and put him in a headlock. At trial, Eugene recognized Harris from having attended high school with him and having seen him recently at a local tire store.
In a police interview at 6:00 a.m. on the morning of the attack, Eugene had said that Fletcher put him in a headlock. At trial he explained that he had been confused.
Fletcher and Harris forced S. and Eugene to the ground. They then searched the car. Harris returned to Eugene and asked where the money was. Eugene said he did not have any. Harris struck Eugene in the head with his gun. Eugene then said that he had $5 in the glove compartment. Harris returned to the car and rifled through its contents, including S.’s purse, tossing items onto the ground.
Fletcher told Eugene and S. to take their clothes off. S. heard one of the men say to the other, “I’ll meet you at the house.” Harris then drove off in Eugene’s car.
Fletcher made Eugene move away to a carport off the alley and lie face down. He then forced S. to bend over the trunk of a parked car. He put a gun to her side, told her it was real, and touched her breast. He then rubbed his penis on her buttocks. Two or three times he inserted his penis into her anus. Eugene heard S. say, “That’s my asshole.” S. was mumbling and crying. Fletcher told S. to insert his penis in her vagina, and she complied. After three or four minutes, Fletcher’s cell phone rang. He withdrew from S., ejaculated on her leg, and answered the phone. Eugene heard him say he’d be there in five minutes.
Fletcher ordered Eugene to walk backwards toward him and S. He told Eugene he had five seconds to get into a nearby dumpster or he would kill him. Eugene helped S. get in and then got in himself. Fletcher departed. A few minutes later, Eugene and Fletcher got out. S. ran to her nearby home and dressed. Eugene was unable to follow, and collapsed, his head throbbing. S. returned to the alley, and saw Eugene lying on the ground in pain, holding his head. Meanwhile, S.’s aunt called 911.
Around 3:00 a.m., in the area of the Rose Bowl, Pasadena Police Officer Jean-Paul Lovera encountered Harris driving Eugene’s car. Lovera followed in his marked police vehicle. Harris stuck his hand out the window, raised his middle finger, and waved it around at the officer. Lovera activated his flashing lights, and a pursuit ensued at speeds up to 80 miles per hour. Harris ultimately lost control of the vehicle and crashed. He climbed out through a window, crouched, and reached toward his waistband. Because a radio broadcast reported that the occupants of the vehicle were armed, Officer Lovera feared Harris was reaching for a weapon, and fired twice. Harris then fled on foot, pursued by Lovera, who lost sight of Harris as he entered brush along the 210 freeway.
Pasadena police set up a perimeter in the area. Around 6:10 a.m., Harris emerged from the brush and fled from officers on foot across the traffic lanes of the freeway. Vehicles came to screeching halts to avoid the pursuit, and eventually Harris was apprehended.
Around 7:00 a.m. that morning, shortly after Harris was apprehended, Fletcher was among several spectators at the perimeter. Pasadena police officer Jose Calderon recognized him from a flier relating to an outstanding warrant in an unrelated case and arrested him. Later that morning at the police station, S. identified Fletcher as the man who raped her.
Approximately two hours after the sexual assault (3:10 a.m.), S. was examined by Cari Caruso, a certified sexual assault nurse examiner. The examination revealed external abrasions and tears of the vagina and anus. On a scale of minor, moderate or severe, the injuries were moderate.
John Bockrath, a criminalist at the Los Angeles County Sheriff’s Crime Lab, performed DNA comparisons on samples taken from S. and Fletcher. In Fletcher’s penile and scrotal samples, Bockrath found traces of S.’s DNA. Statistically, the chance that the DNA came from an African-American other than S. was only one in 8.3 trillion.
2. Crimes Against Laura G. (Fletcher Only)
On November 30, 2003, around 6:40 p.m., Laura G. was walking home from McDonald’s in Pasadena when a man grabbed her by the neck from behind, demanded money, and searched her purse. He placed something against Laura’s back (she thought it might be a gun) and forced her to an alley where he fondled her breasts over her clothing. He pushed her to the ground and tried to force her to perform oral sex. When she refused to open her mouth, he grabbed her by the throat. She then opened her mouth, and he inserted his penis, after which he forced her to lie down. He removed her pants and shoes, and raped her. After he ejaculated, he withdrew, and then penetrated her a second time. He then got up, took her clothing (leaving her only in her underwear) and fled.
On January 13, 2004, Laura identified Fletcher’s photograph in a photographic lineup. She also identified him at trial. In both identifications, she was only “60 percent” sure that Fletcher was her attacker.
Criminalist John Bockrath analyzed DNA samples from Fletcher and Laura G. He found traces of Fletcher’s DNA on a sample from Laura’s thigh. Statistically, the chance of an African-American other than Fletcher being the donor of the DNA was one in 83,190.
3. Other Crimes Evidence (Fletcher Only)
On August 23, 1995, around 8:00 p.m., as she was walking from her home in San Diego to a pay phone, Fatima R. was accosted near a church by two young black men. One of the men grabbed her from behind and, as both covered their faces with handkerchiefs, demanded money. Fatima said she did not have any. One of the men forced her to the side, ripped off her blouse and bra, began kissing her breasts, and removed her shorts. Fatima offered to go home and get money, and screamed. The man told her to be quiet. He struck her three times with his fist in the face, threatened to kill her, grabbed her by the throat, and banged her against a wall. He then forced her to orally copulate him. After some difficulty, he forcibly penetrated her vagina. Finally, he got off her and ejaculated.
In August 2005, personnel in the San Diego Police forensic biology section entered a DNA sample from Fletcher into its local DNA computer data base. Fletcher’s DNA matched a sample obtained in the rape of Fatima in 1995. Further testing showed that the probability of another African-American being the donor of the DNA was one in 280 quadrillion.
In court, Fatima at first did not recognize Fletcher as her attacker, but she later identified him, though she was not sure of the identification.
In October 2005, San Diego Police Officer Gregory Flood interviewed Fletcher about Fatima’s rape. Fletcher admitted being in San Diego for three months around the time the rape occurred, and was familiar with the area where it occurred. He also said that if he committed the crime, he would admit it, but he did not remember involvement in any incident like the rape.
B. Harris’ Defense
Harris presented evidence in support of a duress defense regarding his participation in the crimes against Eugene W. and S.T. He called four character witnesses -- Aimee Wyatt, Elise Dorsey, Johnie Drawn, and Bruce Strouble -- who testified that in their opinion, Harris was honest and non-violent.
According to the testimony of Harris and his wife, Edwana, they met Fletcher about two months before the charged incident through Edwana’s cousin, Shavonda, who was dating Fletcher. Fletcher and Shavonda had problems in the relationship, and Fletcher would come over to talk to Harris about it.
After his arrest, at the request of the police, Harris telephoned Edwana and told her to find his “silver gun” or he was “f----d.” Edwana had a friend dispose of the gun, and later pled guilty to being an accessory after the fact.
Harris testified that sometime after midnight on January 5, 2004, he returned a phone call from Fletcher, who asked to meet him at a location about four blocks from Harris’ home. Harris drove there with his wife’s cousin, Brian Jones. The three men drank some beer and wine, and were walking back to Harris’ car when Eugene and S. drove up and parked. Fletcher told Harris that he wanted to do a “lick,” grabbed Harris by the collar, and told him to walk up the alley with him. Harris noticed that Fletcher was holding a gun. Harris did not know where it came from.
Fletcher’s whole demeanor changed to a person Harris did not know. Fletcher opened the driver’s door and displayed the gun. Brian Jones ran away. Harris, however, felt that he “just had to go along with it . . . because [Fletcher] was the one with the gun.” Harris was “too scared” to look at Fletcher. Fletcher directed him to search the car, and he did. He denied having a gun and denied opening either the driver or passenger doors.
As he was searching the car, Harris saw Eugene and S. lying on the ground, and Fletcher standing over them holding the gun. At some point, when Harris hesitated in coming around the car, Fletcher told him he was acting like a “bitch.” Harris was afraid that if he tried to stop Fletcher he would kill Harris or harm his family. Harris just wanted to “get out of there.”
Fletcher told Harris to meet him at Harris’ house. Harris heard Fletcher tell Eugene and S. to strip. Fletcher tossed Eugene’s car keys to Harris, and Harris drove Eugene’s car back to his home, leaving his own car at the scene. After arriving home, he called Fletcher on his cell phone, and Fletcher said he’d be there.
Fletcher arrived about 30 minutes later, and told Harris that they would dispose of Eugene’s car at the Rose Bowl. Harris, Fletcher, and Brian Jones drove in Eugene’s car back to the alley to pick up Harris’ vehicle. Then, with Brian and Fletcher following in Harris’ car, Harris drove Eugene’s car to the Rose Bowl.
Harris noticed that a police officer was following him. Harris motioned for the officer to pass him; he did not “flip him off.” When a second police car tried to block his path, Harris sped off and ultimately crashed. He fled on foot after one of the officers shot at him.
He ran to a friend’s house near the 210 freeway where he remained for about three hours. Realizing that the police had set up a perimeter to apprehend him, and not wanting to involve his friend any further, he left the house. Shortly afterward he was captured as he fled on foot on the freeway.
Fletcher never pointed his gun at Harris, and never threatened him with it. The parties stipulated that Harris saw a bruise on Shavonda Harris’ forehead and was informed that the bruise was a result of being hit by Fletcher.
DISCUSSION
I. Fletcher’s Motions for a Mistrial
Twice during the trial, Fletcher moved for a mistrial based on the asserted misconduct of codefendant Harris’ trial attorney. The trial court denied the motions. On appeal, Fletcher contends that the court erred. We disagree.
A. Comment About the “Look of Evil”
The first motion for a mistrial occurred during the opening statement of Harris’ attorney, when he referred to Fletcher as having the “look of evil.”
The prosecutor, in his opening statement, described the crimes against Eugene and S., Fletcher’s crimes against Laura G., and Fletcher’s uncharged crimes against Fatima R. Next, Fletcher’s trial attorney presented his opening statement. He conceded that Fletcher raped S., an offense he characterized as a “very, very heinous crime.” He stated, however, that Fletcher only pretended to have a gun, that Harris used a gun and masterminded the robbery and carjacking, and that Fletcher did not anticipate what Harris was going to do. He also questioned the sufficiency of the evidence to prove Fletcher’s involvement in the charged crimes against Laura G. and the uncharged crimes against Fatima R.
Harris’ attorney then presented his opening statement, in which he gave an outline of Harris’ duress defense. He conceded that Harris accompanied Fletcher to the alley where the crimes against Eugene and S. were committed. He stated, however, that Harris assisted Fletcher out of fear. Without objection, he stated: “You’ll hear testimony [about] the gun com[ing] out, [the] transformation of this friend [Fletcher] into someone evil, someone who wants to get something done. My client starts to panic. . . . All of a sudden all of these rumors [about Fletcher’s criminal background] are true. . . . He [Harris] sees himself as a victim. I’m going to get shot if I don’t do this. Something is going to happen if I don’t cooperate. Mr. Fletcher is no longer Mr. Fletcher. Something happened to him, he is possessed, and [Harris] goes along.” (Italics added.)
Later, again without objection, Harris’ attorney referred to Harris’ being “terrified out of his mind, not only just what happened, but . . . seeing that side of Mr. Fletcher, which you will hear ample times about [in the evidence of the Laura G. and Fatima R. crimes]. He saw a side of pure evil, and he knew . . . at that point in time that he was not safe.” (Italics added.)
At the conclusion of his opening statement, Harris’ attorney stated that the evidence would show “that [Harris] didn’t do it on his own, he did it out of fear, he did it out of panic. . . . He got out of there early, thankfully. But if you look now and you look at those two seated next to each other, separated by my chair . . . you will see the difference between the look of innocence and the look of evil.” (Italics added.)
The prosecutor and counsel for Fletcher objected. Fletcher’s attorney stated that he “didn’t object to any of the other characterizations [of Fletcher being evil] because . . . I was assuming he was going to attempt to prove that up during the course of his defense, but the flat out assertion that my client has the look of evil, his client has the look of innocence, at this point I think I have to ask for a mistrial. . . . It’s completely prejudiced the jury, and if the court is not inclined to grant the mistrial, I am certainly going to ask for a severance at this point.” Fletcher’s counsel conceded that he “may have gone overboard” and apologized. The court found the comment inappropriate, warned Harris’ counsel not to make such comments again, and offered to give a curative instruction. Fletcher’s attorney stated that he was not requesting an instruction, because it would only call attention to the comment. The court therefore decided not to give an instruction, and denied a mistrial.
“‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] ‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.’ [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 323.)
Here, before the objectionable comment by Harris’ attorney, the prosecutor had described the evidence of Fletcher’s charged and uncharged crimes, and Fletcher’s attorney had conceded that Fletcher had committed a “very, very heinous” rape of S. Further, without objection, Harris’ attorney had twice explained that during the crimes against S. and Eugene, Harris perceived a transformation of Fletcher into someone “evil.” Thus, although the final comment drawing a distinction between Harris’ “look of innocence” and Fletcher’s “look of evil” was inappropriate, it was not so inflammatory as to be incurably prejudicial. The court properly offered to give a curative instruction, but Fletcher’s counsel declined. The court did not abuse its discretion in denying a mistrial.
B. Invitation to Dinner
Fletcher’s second motion for a mistrial occurred at the end of the closing argument of Harris’ trial attorney. Harris’ counsel argued at length concerning Harris’ duress defense. In conclusion, he stated, “The thing that I am most concerned about is I don’t think the evidence shows that he would have done this but for pressure that was exerted on him, and I’m asking you after you consider everything, go through the instructions, go through the evidence, consider what is said by the other parties, I’m asking you to send Reshaun Harris home, only because he deserves it, and the evidence shows it.”
At that point, the court sustained a joint objection by the prosecutor and Fletcher’s counsel, ruling that “the word ‘deserve’ is inappropriate.” Harris’ attorney continued, “Okay. Okay. So that one day he can come to my house and have dinner. . . . Thank you.”
The prosecutor objected, and the court excused the jury. Outside the jury’s presence, the court admonished Harris’ counsel that the comment about having Harris over to dinner was improper as an implicit vouching for his client’s good character.
At the prosecutor’s urging, the court also stated that it would consider issuing an order to show cause re sanctions. The prosecutor later withdrew the request, and the trial court did not issue the order.
Fletcher’s attorney moved for a mistrial. He argued: “We have had to sit through this trial and endure these antics [by Harris’ counsel]. The prejudice that has been created against Mr. Fletcher is insurmountable, and even if the court doesn’t declare a mistrial, this case is going to come back on appeal.” When the court noted that the objectionable comment by Harris’ attorney had nothing to do with Fletcher, Fletcher’s attorney countered: “Well, if I don’t invite Mr. Fletcher out to dinner now, what does that say about me? The concern I have in this case, and I understand [Harris’ counsel] is vigorously advocating for his client, [but] I have been playing this game the way it should be played, and co-counsel is not. What inference is the jury going to [make] when I don’t go up and do those things. . . . I have to go up and give that kind of a closing, too.”
The court offered to instruct the jury that the comment was inappropriate, and directed the prosecutor and Fletcher’s attorney to draft an instruction. Later, Fletcher’s attorney joined the prosecutor in requesting the following instruction, which the court read to the jury before Fletcher’s counsel began his closing argument: “You have heard arguments of [Harris’ attorney] which attempted to elicit inappropriate sympathy on your part. You must disregard those arguments and decide this case based on the evidence. You must not be prejudiced against defendant Harris based on the conduct of [Harris’ attorney].”
The court’s implicit denial of Fletcher’s motion for a mistrial was not an abuse of discretion. As the trial court observed, the objectionable comment had nothing to do with Fletcher. The court instructed the jury to disregard the comments of Harris’ attorney that attempted to elicit sympathy for Harris. Despite the concern of Fletcher’s trial attorney, his closing argument was in no way impaired by Harris’ trial attorney’s conduct. The court properly concluded that the objectionable comment was not incurably prejudicial.
C. Remaining Appellate Grounds for a Mistrial
On appeal, Fletcher cites several other instances of alleged misconduct by Harris’ attorney as grounds on which a mistrial should have been declared. He also contends that these instances violated his right to due process. However, in none of these instances did he move for a mistrial in the trial court. True, when asking for a mistrial at the conclusion of Harris’ attorney’s closing argument, Fletcher’s counsel mentioned having endured the “antics” of Harris’ attorney throughout the trial. But he did not identify any specific instances of misconduct other than the improper comment during the closing argument of Harris’ attorney, and did not explain how any of those instances constituted grounds for a mistrial. Thus, his off-hand reference to the “antics” of Harris’ attorney was not sufficient to inform the trial court that he was seeking a mistrial on the grounds now identified on appeal. He has therefore forfeited any claim on appeal that the incidents of asserted misconduct he now identifies justified a mistrial or violated his due process rights. (See People v. Vera (1997) 15 Cal.4th 269, 275.)
In any event, Fletcher cannot demonstrate that any of the asserted misconduct deprived him of a fair trial. The instances cited by Fletcher for the first time on appeal relate primarily to questions Harris’ attorney asked Harris, Harris’ wife Edwana, and a prosecution rebuttal witness, Detective Ernie Devis. Most of the questions sought to elicit testimony concerning Harris’ belief that Fletcher had committed certain prior crimes. Because the court sustained objections to the vast majority of the questions, there is little likelihood Fletcher was harmed. (See People v. Mayfield (1997) 14 Cal.4th 668, 755.)
Below, we conclude that the trial court erroneously excluded evidence of statements Fletcher made to Harris concerning having committed prior offenses.
Moreover, the evidence of Fletcher’s guilt was overwhelming. As to the crimes against Eugene and S., Fletcher’s attorney conceded that Fletcher raped S. The evidence of Fletcher’s participation in the other charged crimes against Eugene and S. was uncontradicted. As to the crimes against Laura G., Laura was “60 percent” sure that Fletcher was her attacker. Based on the DNA evidence, however, the chance of an African-American other than Fletcher being the donor of the DNA found on Laura’s thigh was only one in 83,190. Further, there was no doubt that Fletcher was the perpetrator of the uncharged crimes against Fatima R. – the DNA evidence showed that the probability of another African-American being the donor of the DNA found in the sample taken from Fatima was one in 280 quadrillion. Pursuant to CALJIC No. 2.50.01, the jury was instructed (in substance) that if it found that defendant committed the Fatima R. crimes, it could infer that he had a disposition to commit sex offenses and also infer that he committed the charged sex crimes. On this record, Fletcher cannot show that in the absence of the asserted misconduct by Harris’ attorney, he would have received a more favorable verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) Nor can he show that the asserted misconduct deprived him of due process.
II. Harris’ Duress Defense
Defendant Harris presents two contentions regarding his duress defense. As relevant to this appeal, these contentions deal only with his conviction of carjacking (count 1). First, he contends that the trial court erred in excluding his testimony concerning statements Fletcher made to him about having committed other crimes. Harris asserts that such evidence was admissible in support of his duress defense, because it tended to explain his subjective fear of Fletcher. Second, he contends that the trial court erroneously failed to instruct that the prosecution had the burden of proving he did not act under duress.
As to defendant Harris, the trial court instructed the jury on the defense of duress with respect to counts 1, 2, 3, and 9. Those counts charged Harris with, respectively, carjacking Eugene (§ 215, subd. (a)), robbing him (§ 211), robbing S. (§ 211), and assaulting Eugene with a firearm (§ 245, subd. (a)(1)). The jury convicted Harris of carjacking Eugene, but acquitted him of the remaining charges as to which the duress defense applied. The jury convicted Harris of three other counts to which the defense of duress did not apply: a second count of assault with a firearm on Eugene (count 8), assault with a firearm on S. (count 7), and felony evading (count 10; Veh. Code, § 2800.2, subd. (a)).
As to the first contention, we conclude that although the trial court erred in excluding evidence of Fletcher’s statements, the error was not prejudicial. As to the second contention, we find no reasonable likelihood that the jury was misled by the court’s instructions.
A. Exclusion of Evidence
During his examination of Harris, Harris’ attorney sought to elicit testimony concerning “statements that Mr. Fletcher made [to Harris] as to licks and jacks and certain boasting,” and a statement in which Fletcher mentioned he had “popped somebody.” These statements were made at unspecified times before the charged crimes against Eugene and S., and, according to Harris’ counsel, Harris did not take these statements seriously until the night of the crimes, when Fletcher produced a gun. Counsel argued that this evidence was relevant to explain Harris’ subjective fear of Fletcher. The trial court ruled the evidence irrelevant, because duress requires evidence of an immediate threat or menace, and the alleged statements were made long before the charged crimes. The court also excluded the statements as hearsay.
The defense of duress applies to persons who act “under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” (§ 26, subd. six; see People v. Heath (1989) 207 Cal.App.3d 892, 900.) We agree with Harris that the evidence of Fletcher’s statements was relevant to explain Harris’ subjective belief that his life might be in danger if he failed to cooperate with Fletcher in the commission of the crimes against Eugene and S. We further agree that the statements were not hearsay, because they were not offered for the truth of the matter, but rather to explain Harris’ state of mind. Nonetheless, although the court erred in excluding the statements, the error was not prejudicial.
“In order to show that his act was not the exercise of his free will, defendant must show that he acted under an immediate threat or menace. [Citation.] ‘Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime. The person being threatened has no time to formulate what is a reasonable and viable course of conduct nor to formulate criminal intent. The unlawful acts of the person under duress are attributed to the coercing party who supplies the requisite mens rea and is liable for the crime. [Citation.]’ [Citation.] Decisions upholding the duress defense have uniformly involved ‘“a present and active aggressor threatening immediate danger.’” [Citation.] A ‘phantasmagoria of future harm’ such as a threat of death to be carried out at some undefined time, will not diminish criminal culpability.” (People v. Petznick (2003) 114 Cal.App.4th 663, 676-677 (Petznick).)
Here, the evidence that Harris acted under a threat of immediate danger during the carjacking of Eugene was extremely weak. None of Fletcher’s statements carried an express or implied threat against Harris or his family. Indeed, Harris presented no evidence that Fletcher ever made an express or implied threat of harm – much less a threat of immediate harm – if Harris failed to join in committing any of Fletcher’s crimes. Further, Harris admitted that Fletcher never pointed his gun at him, and never threatened him with it.
The “taking” element of carjacking has the same meaning as in robbery -- possession and asportation. (People v. Lopez (2003) 31 Cal.4th 1051, 1054-1055.) Therefore, the crime of carjacking, like robbery, continues until the perpetrator reaches a place of temporary safety. (See People v. Flynn (2000) 77 Cal.App.4th 766, 772 [theft or robbery continues until place of temporary safety reached].) Here, after leaving the scene in Eugene’s car, Harris drove to his home and called Fletcher on his cell phone. Obviously, after driving away alone and reaching his home, he was no longer under any threat of immediate harm from Fletcher. He certainly had time to formulate a non-criminal course of conduct rather than continuing with the carjacking. (See Petznick, supra, 114 Cal.App.4th at pp. 676-677.) However, rather than doing so, he waited for Fletcher to join him, and then attempted to dispose of Eugene’s car.
The prosecutor made precisely this point in his closing argument: “[T]his confusion that’s been brought up about Mr. Harris and how you consider what he had to be afraid of and what it means in terms of his responsibility for what happens to [these] people. . . . [W]hen he drove away in that car he was still robbing these people. He had the car, which was count one, the carjacking, and carjacking is essentially the same as robbery. . . . He had their property, he had their clothing in the car with him . . ., and he went to a place of temporary safety. He drove to his house. He sat there and continued to aid and abet, calling Fletcher, seeing where he was, so they could then do whatever they were going to do with the car next. And he waited quite a long time for Fletcher to get there. . . . And he can’t use the excuse that Mr. Fletcher was there holding a gun on him during that time. That is not, as you will see in a minute, an allowable excuse for participating in these kinds of crimes.”
On these facts, the duress defense was simply not viable as against the carjacking. Thus, it is not reasonably probable that even if the evidence of Fletcher’s prior statements had been admitted, the jury would have reached a different verdict on the carjacking. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Harris argues that the error violated his due process right to present a defense and therefore must be reviewed under the harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18. He is mistaken. “In general, the ‘“[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]’ [Citations.] . . . [¶] Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is ‘an error of law merely,’ which is governed by the standard of review announced in People v. Watson [supra] 46 Cal.2d 818, 836.” (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)
Here Fletcher’s statements were of minor significance in proving the duress defense as against the carjacking charge. As noted, they did not carry an express or implied threat against Harris or his family. And even if that evidence had been admitted, the duress defense was not viable as to the carjacking, because there was an absence of evidence of any threat of immediate harm while the carjacking was continuing. Therefore, because Fletcher’s statements related to a minor point in the context of the duress defense to carjacking, the error in excluding Fletcher’s statements is governed by the Watson standard. In any event, even if the Chapman test applies, it is clear beyond a reasonable doubt that, given the dearth of necessary evidence, the error in excluding Fletcher’s statements did not contribute to the verdict on the carjacking.
B. Duress Instruction
Harris contends that the trial court erred in failing to instruct: (1) that the prosecution had the burden of proving beyond a reasonable doubt that he did not act under duress, and (2) that in determining whether defendant’s belief that his life was in immediate danger was reasonable, the jury must consider all the circumstances as they appeared to Harris.
The trial court instructed the jury on duress pursuant to CALJIC No. 4.40. The substance of this instruction was approved in People v. Quinlin (1970) 8 Cal.App.3d 1063, 1068.) The People contend that because Harris failed to request any clarification of the instruction given, he has forfeited his challenges to the instruction. “A defendant who believes that an instruction requires clarification must request it.” (People v. Coddington (2000) 23 Cal.4th 529, 584, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) However, a defendant may assert on appeal instructional error affecting a substantial right even if that error was not raised in the trial court. (§ 1259; People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 103, fn. 34.) Because we must examine the issue on the merits to determine if defendant’s substantial rights were affected, we conclude the claim of error was not forfeited.
As given here, CALJIC No. 4.40 read: “Defendant Harris is not guilty of a crime in Counts 1, 2, 3, and 9, when he engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances:
Harris concedes that CALJIC No. 4.40 is “correct in its provisions,” but argues that the jury “could have assumed” that he had the burden of proving duress, and also could have failed to consider all the circumstances in evaluating the reasonableness of his belief he was in immediate danger. We conclude that there is no reasonable likelihood that the jury misunderstood that the prosecution had the burden of disproving the duress defense beyond a reasonable doubt, or misunderstood its duty to consider all of the circumstances known to Harris in evaluating the reasonableness of his belief that he was in immediate danger. (See People v. Clair (1992) 2 Cal.4th 629, 663 [court reviews ambiguous jury instruction to determine whether there is a reasonable likelihood jury misunderstood the instruction in violation of defendant’s rights]; see also People v. Huggins (2006) 38 Cal.4th 175, 192; People v. Welch (1999) 20 Cal.4th 701, 766; People v. Avena (1996) 13 Cal.4th 394, 417.)
As to whether the jury misunderstood the burden of proof, the court instructed pursuant to CALJIC No. 4.40 that Harris was “not guilty of a crime in Counts 1, 2, 3, and 9, when he engages in conduct, otherwise criminal, when acting under threats and menaces under” the listed circumstances constituting duress. Pursuant to CALJIC No. 2.90, the court instructed that Harris was presumed innocent, and that “[t]his presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” Because CALJIC No. 4.40 told the jury that Harris was not guilty if he acted under duress, and CALJIC No. 2.90 instructed that the prosecution had the burden of proving him guilty, the instructions as a whole reasonably communicated that to prove Harris guilty, the prosecution must prove that Harris did not act under duress. Further, during his closing argument, Harris’ counsel repeatedly stated that Harris did not have the burden of proving duress, but rather the prosecution had the burden of proving beyond a reasonable doubt that Harris did not act under duress. Nothing said by the prosecutor in his closing argument suggested to the contrary. Moreover, the jury acquitted Harris of all charges as to which the duress defense applied except the carjacking. And as we have noted, the duress defense was not viable as to that charge. On this record, there is no reasonable likelihood that the jury was misled as to the burden of proof on duress.
Similarly, there was no reasonable likelihood that the jury was misled into not considering all circumstances as they appeared to Harris. Pursuant to CALJIC No. 4.40, the court instructed that the “the threats and menaces” supporting the duress defense must be “such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged,” and that the person “then actually believed his life was so endangered.” From these instructions, the jury would necessarily understand that it must consider all the circumstances creating the “threats and menaces” that Harris believed put his life in danger, and evaluate whether a reasonable person subject to such circumstances would have believed he was in immediate danger. Indeed, in discussing the duress defense, the prosecutor argued at length why all the surrounding circumstances showed that Harris did not reasonably fear for his immediate safety, and Harris’ attorney argued at length why they did. There was no reasonable likelihood that the jury failed to consider such circumstances in rejecting Harris’ duress defense as to carjacking.
III. Severance
Both Fletcher and Harris contend that the trial court erred in denying their respective requests for a severance. We find no abuse of discretion.
A. Background
Before trial, Fletcher moved to sever his case from Harris’. Among other grounds, his attorney argued that Fletcher would be prejudiced by a joint trial because Harris would be presenting a duress defense adverse to Fletcher. The prosecutor opposed the motion, as did Harris’ attorney, who argued that severance would unduly delay Harris’ case. The trial court denied a severance, finding no prejudicial conflict between Fletcher and Harris.
Later, based on Harris’ attorney’s comment during his opening statement concerning Fletcher’s “look of evil,” Fletcher’s attorney moved for a mistrial, or, in the alternative, a severance. As we have already discussed, the trial court implicitly denied a mistrial, and implicitly denied a severance as well.
As we have also discussed, during Harris’ defense case, Harris’ attorney sought to introduce evidence of Harris’ belief that Fletcher had committed prior crimes. The court excluded the evidence. At one point, Harris’ counsel moved for a severance, on the ground that the court was restricting the defense evidence out of a concern that Fletcher would be prejudiced. The court explained that its ruling was not based on prejudice to Fletcher, but on the court’s analysis that the evidence was not relevant to the duress defense and constituted inadmissible hearsay. Fletcher’s attorney joined in Harris’ request for a severance. However, he agreed with the court’s ruling excluding evidence relating to Harris’ belief that Fletcher had committed prior crimes.
Although the court did not expressly rule on this last, joint request for a severance, it implicitly denied the request by permitting the joint trial to continue.
B. Fletcher’s Severance Requests
On appeal, Fletcher contends that the trial court erred in denying his requests for a severance, because Harris’ duress defense was adverse to Fletcher and prejudiced his case. We disagree.
Section 1098 provides in relevant part that “[w]hen two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” Here, Fletcher and Harris were jointly charged with crimes arising from their attack on S. and Eugene Hence, under section 1098, there was a legislative preference for a joint trial.
“A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. [Citation.] Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.] . . . [¶] In People v. Hardy [(1992)] 2 Cal.4th at page 168, [the California Supreme Court] said: ‘Although there was some evidence before the trial court that defendants would present different and possibly conflicting defenses, a joint trial under such conditions is not necessarily unfair. [Citation.] “Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials, none has found an abuse of discretion or reversed a conviction on this basis.” [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials “would appear to be mandatory in almost every case.”’ [The court] went on to observe that ‘although it appears no California case has discussed at length what constitutes an “antagonistic defense,” the federal courts have almost uniformly construed that doctrine very narrowly. Thus, “[a]ntagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.” [Citation.] “Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’” (Ibid., last italics added.) When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
In the present case, there was independent evidence of Fletcher’s guilt. Indeed, as we have noted, that evidence was overwhelming. Fletcher’s attorney conceded that Fletcher raped S.T., and the evidence of Fletcher’s participation in the other charged crimes against Eugene and S. was uncontradicted. Considering the crimes against Laura G., although Laura was only “60 percent” sure that Fletcher was her attacker, the DNA evidence established that the chance of an African-American other than Fletcher being the donor of the DNA found on Laura’s thigh was only one in 83,190. Further, the DNA evidence left no doubt that Fletcher committed the uncharged crimes against Fatima R. – the probability of another African-American being the donor of the DNA found in the sample taken from Fatima was one in 280 quadrillion. The jury was permitted to consider this evidence in determining Fletcher’s guilt of the charged sex crimes. Because there was sufficient independent evidence of Fletcher’s guilt, the court did not abuse its discretion in denying Fletcher’s requests for a severance. (People v. Coffman and Marlowe, supra, 34 Cal.4th at p. 41.) For the same reason, denial of severance did not constitute a violation of due process. (See People v. Turner (1984) 37 Cal.3d 302, 313, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1115.)
Fletcher suggests that the case was “close,” because the jury deliberated over five days, asked several questions, and requested a readback of S. and Eugene’s testimony. However, given the length of the trial (seven days of testimony) and the numerous counts and enhancement allegations against both defendants, it is sheer speculation to conclude that the jury’s conduct reflected difficulty in determining Fletcher’s guilt as opposed to a conscientious evaluation of the evidence. (People v. Houston (2005) 130 Cal.App.4th 279, 301.)
C. Harris’ Severance Request
Harris contends that the trial court erred in denying his request for a severance. He assumes (incorrectly) that the court excluded evidence of Fletcher’s prior crimes under Evidence Code section 352 because it was unduly prejudicial to Fletcher. However, as the trial court explained, its ruling was not based on prejudice to Fletcher, but on its view that the evidence was irrelevant to Harris’ duress defense and was inadmissible hearsay. Thus, exclusion of the evidence did not flow from the joint trial. Further, although we have concluded that the trial court erred in its evidentiary ruling, that error would have occurred even in a separate trial of Harris. Therefore, we find no error in the trial court’s denial of Harris severance motion, and, in the alternative, no prejudice to Harris.
IV. Harris’ Convictions of Assaulting Eugene and S. With A Firearm
Harris contends that the evidence is insufficient to support his convictions for assaulting S. (count 7) and Eugene (count 8) with a firearm (§ 245, subd. (a)(2)).
The factual basis for the assaults, as argued by the prosecutor, was Fletcher’s use of a firearm in forcing S. and Eugene to get into a trash dumpster, after Harris had driven off in Eugene’s car. The prosecution’s legal theory as to these counts was the natural and probable consequences doctrine, i.e., that although Fletcher committed the assaults after Harris had departed, Harris was liable for the crimes because the assaults were the natural and probable consequences of robbery and carjacking.
In relevant part, the jury was instructed that in order to find Harris guilty of the assaults, it must find that the crimes of carjacking or robbery were committed, that Harris aided and abetted those crimes, that Fletcher committed assault with a firearm on S. and Eugene, and that the assaults were a natural and probable consequence of the carjacking or robbery. Because the jury acquitted Harris of robbery, the target crime for his convictions on the assault charges was carjacking in the taking of Eugene’s car.
The trial court instructed pursuant to CALJIC No. 3.02 as follows:
Harris contends that the natural and probable consequences theory did not apply, because he was an actual perpetrator of carjacking, not an aider and abettor. He is mistaken. First, both the perpetrator and the aider an abettor “are equally liable for the natural and foreseeable consequences of their crime.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1376, italics in original; see also People v. Culuko (2000) 78 Cal.App.4th 307, 329-330.) Second, in any event, the evidence showed that Harris was both an actual perpetrator and an aider and abettor of carjacking. “[T]he dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120, italics in original.)
Here, Harris and Fletcher committed the crime of carjacking together, in part as actual perpetrators and in part as aider and abettors. Fletcher actively committed certain acts necessary to the carjacking – he ordered S. out of the car at gunpoint, removed the car keys from the ignition, gave them to Harris, and told him to meet him at Harris’ house. Harris, too, actively committed acts necessary to the carjacking -- he forced Eugene out of the car at gunpoint, demanded money, struck Eugene on the head, received the car keys from Fletcher, and drove off in the car. The conduct of Harris and Fletcher not only made them actual perpetrators; it also made them aiders and abettors of each other in accomplishing their joint purpose of taking the car from the possession and immediate presence of Eugene and S. by force. Thus, to the extent Harris was an aider an abettor of Fletcher in the carjacking, he was liable as an aider and abettor for the natural and probable consequences of the crime.
Harris contends that Fletcher’s assaults on Eugene and S. with a firearm were not natural and probable consequences of carjacking. Substantial evidence supports a different conclusion. For the natural and probable consequences doctrine to apply, the target crime aided and abetted must have a “close connection” with the ultimate offense of which the defendant is convicted; the crimes cannot be “trivial” in relation to each other. (People v. Prettyman (1996) 14 Cal.4th 248, 269.) Further, “[t]he determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] . . . [T]he issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citation.] Consequently, the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
Here, the target crime of carjacking was closely connected with (and not trivial in relation to) the assaults with firearm committed by Fletcher, and the assaults were a reasonably foreseeable consequence of the carjacking. When Harris left the scene in Eugene’s car, he knew of Fletcher’s participation in the carjacking, he knew that Fletcher was armed, and, according to his own testimony, he believed that Fletcher was a dangerous and violent person. A reasonable person in his position would have understood that it was likely Fletcher would use the firearm against S. and Eugene in a manner that would constitute an assault. The evidence was therefore sufficient to prove his vicarious liability for Fletcher’s crimes.
V. Fletcher’s Sodomy Convictions
Fletcher was convicted of two counts (counts 5 and 6) of forcible sodomy against S. (§ 286, subd. (c)(2)). He contends that the convictions must be reversed, because the evidence was insufficient to show that he intended to commit the acts constituting sodomy.
Sodomy is a general intent crime (People v. Davis (1995) 10 Cal.4th 463, 519), and the intent required is simply the intent to commit the act constituting sodomy (id. at pp. 518-519, fn. 15), namely, the penetration, however slight, of the anus of one person by the penis of another (§ 286, subd. (a)). Here, the evidence showed that Fletcher forced S. to bend over the trunk of a parked car. He put a gun to her side, told her it was real, and touched her breast. He then rubbed his penis on her buttocks. Two or three times he inserted his penis into her anus. At one point, Eugene heard S. say, “That’s my asshole.” Fletcher told S. to insert his penis in her vagina, and she complied.
Fletcher contends that this evidence mandates a conclusion that his penetration of S.’s anus was “nonvolitional [and] essentially accidental.” However, under the proper standard for reviewing the sufficiency of the evidence on appeal (see People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence reasonably supports the inference that Fletcher intended to commit at least two acts of sodomy. He forced S. to bend over the trunk of a car, a position designed to make anal penetration possible. He first rubbed his penis on her buttocks as if in preparation for penetration, and then forcibly penetrated her anus two or three separate times. At some point, after S. protested, he directed her to place his penis in her vagina. Although the jury might have inferred from this evidence that the sodomies were accidental, it could just as easily have inferred that Fletcher intended to penetrate S.’s anus, and ceased only after S. complained. Thus, substantial evidence supports Fletcher’s convictions of two counts of sodomy.
VI. Separate Punishments for Fletcher’s Convictions of Sodomy
Fletcher contends that section 654 prohibited separate punishments for his convictions on counts 5 and 6 for forcible sodomy of S. He asserts that section 654 is implicated, because his sodomy convictions “were based on unintentional, non-volitional slips” that were “intertwined with the acts underlying” his conviction of forcibly raping S. (count 4). The contention is unavailing.
First, the premise of the argument fails. As we have discussed, the evidence was sufficient to support a finding that the sodomies were volitional, and hence were separate acts. Second, the general rule (applicable here) is that “multiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally ‘divisible’ from one another under section 654, and separate punishment is usually allowed.” (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 (Scott).) Finally, on the sodomy counts, the court sentenced Fletcher to fully consecutive terms under section 667.6, subdivision (c). The sentencing scheme of section 667.6, subdivision (c), which permits (in the court’s discretion) the imposition of fully consecutive terms for certain designated sex offenses, is “an exception to section 654’s prohibition against multiple punishment for separate acts committed during an indivisible course of conduct.” (People v. Hicks (1993) 6 Cal.4th 784, 791, italics in original; see also id. at p. 787.) Thus, section 654 did not require the court to stay the terms for Fletcher’s sodomy convictions.
VII. Fully Consecutive Terms for Fletcher’s Sodomies and Rape of S.
For Fletcher’s conviction of forcible sodomy (counts 5 and 6) and forcible rape (count 4) of S., the trial court imposed fully consecutive sentences. Fletcher contends that the court failed to state valid reasons for imposing fully consecutive sentences under section 667.6, subdivision (c), which permits discretionary, fully consecutive sentences for certain listed sex offenses.
By failing to raise this issue in the trial court, however, Fletcher forfeited the claim on appeal. (Scott, supra, 9 Cal.4th at p. 353 [“the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”].) In any event, we are not persuaded.
First, Fletcher is incorrect in asserting that the court sentenced him under section 667.6, subdivision (c), on his conviction for the forcible rape of S. on count 4. Rather, the court sentenced Fletcher to a consecutive term of 25 years to life under section 667.61, subdivisions (a) and (e), based on the jury’s finding that he was convicted of sexually assaulting more than one victim (§ 667.61, subd. (e)(5)), and that he personally used a firearm (§§ 12022.53, subd. (b) & 667.61, subd. (e)(4).) No statement of reasons was required for this consecutive term. Section 667.61, subdivision (i), provides in relevant part that “[f]or any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims.” Forcible rape (§ 261, subd. (a)(2)) is listed in section 667.61, subdivision (c)(1), and the jury found true the multiple victim allegation as to that crime (§ 667.61, subd. (e)(5)). Thus, under section 667.61, subdivision (i), a consecutive term was mandatory on count 4.
The court also doubled this term for Fletcher’s prior strike conviction, making the term 50 years to life.
As for the fully consecutive terms for the forcible sodomy convictions (counts 5 and 6), the court stated: “The court is aware of its discretion to sentence under section 667.6(c) as to the remaining sex offenses. The court will proceed to impose full consecutive terms, based on these factors: The crimes involved great violence. Defendant was armed or used a gun. The victims were vulnerable. The manner of the crime, displaying sophistication [and] professionalism. The defendant served a prior prison term. The defendant’s performance on parole was unsatisfactory. The defendant’s crimes involve separate acts of violence and the crimes and objectives are independent of each other.”
Because the decision to impose fully consecutive terms under section 667.6, subdivision (c), is a separate sentencing choice, the court must state reasons for that decision. (People v. Belmontes (1983) 34 Cal.3d 335, 347-348.) The factors listed in California Rules of Court, rules 4.421 and 4.425, may be used. As stated in Belmontes: “What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (Id. at p. 348.)
Here, the trial court expressly acknowledged that sentencing under section 667.6, subdivision (c), was a separate discretionary choice. Its reasons tracked California Rules of Court, rule 4.421(a)(1), (a)(2), (a)(8), (b)(3), and (b)(4), and rule 4.425(a)(1) and (a)(2). Thus, the court complied with the Belmontes requirements.
Fletcher contends that the court erred in relying on the factor of great violence, because his conduct was no more violent than other forcible sodomies. We disagree. Immediately before sodomizing S., Fletcher placed his gun in S.’s side and told her it was real, thus implicitly threatening her life. This conduct showed a degree of threatened violence exceeding that necessary to commit the crime.
Fletcher also argues that, contrary to the court’s reasoning, S. was not particularly vulnerable, because she was near her own home with her boyfriend, Eugene. However, the crimes occurred in an alley in early morning darkness. Before the sodomies, Fletcher forced both Eugene and S. to disrobe at gunpoint, and then ordered Eugene to move away to a carport off the alley and lie face down. Having separated S. from Eugene, Fletcher forced S. to bend over the trunk of a parked car, threatened her with his gun, and committed the sodomies. Fletcher’s conduct rendered S. totally helpless against his sexual assault, and made her vulnerable to “a special or unusual degree, to an extent greater than in other cases.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.)
Fletcher contends that the court incorrectly characterized Fletcher’s conduct as displaying sophistication and professionalism. Yet the manner in which Fletcher prepared to commit his sexual attack on S. (forcing both S. and Eugene to disrobe at gunpoint, separating them so as to render S. helpless) suggested premeditation. So did his perfecting of his escape by forcing the naked victims to climb into a trash dumpster.
Finally, Fletcher fails to challenge the other factors on which the court relied -- his use of a gun, his prior prison term and unsatisfactory performance on parole, his separate acts of violence and independent criminal objectives. These factors alone justified imposition of fully consecutive terms under section 667.6, subdivision (c). (See People v. Pena (1992) 7 Cal.App.4th 1294, 1318.) In short, the trial court did not error in sentencing Fletcher to fully consecutive terms.
Fletcher also contends that his consecutive sentences violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270. As he concedes, however, the California Supreme Court has held that Cunningham does not apply to the decision whether to impose consecutive sentences. (People v. Black (2007) 41 Cal.4th 799, 820-823.)
VIII. Order That Fletcher Pay Restitution
Based on documentation supplied by Eugene W., the court ordered Fletcher and Harris to pay joint and several restitution of $10,041 to cover the damage to Eugene’s car ($4,500), the costs of his hospitalization for his injuries ($3,461), his “collection debt” ($1,340), lost wages ($200), and miscellaneous stolen property ($540).
Erroneously assuming that the amount of the restitution award related solely to the damage to Eugene’s car, Fletcher contends that the restitution award is not supported by the evidence. At trial, Eugene testified that his car was worth “maybe five-thousand [dollars].” According to Fletcher, therefore, any restitution amount over $5,000 is not supported by the evidence. As we have noted, however, the restitution award reflected only $4,500 for damage to the car. The remainder related to other losses. Thus, the amount awarded for car damage is not excessive as compared to Eugene’s trial testimony.
Fletcher also contends that Eugene’s losses flowed solely from Harris’ conviction of felony evading, and that therefore Fletcher cannot be liable. He is mistaken.
“Section 1202.4, subdivision (f) requires restitution ‘[i]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct.’ (Italics added.) Under this statutory language, the courts have found that if two defendants convicted of the same crime caused a victim to suffer economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery. [Citation.]” (People v. Leon (2004) 124 Cal.App.4th 620, 622 (Leon); see People v. Keichler (2005) 129 Cal.App.4th 1039, 1046 [section 1202.4 is intended to provide that “‘every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss’”].)
Here, Fletcher was convicted, as an actual perpetrator, of robbing Eugene W. (count 2) and as an actual perpetrator and aider and abettor of carjacking in the taking of Eugene’s car (count 1). The losses Eugene suffered for hospital costs, related collection costs, and lost wages were the result of the injuries he suffered when struck in the head during the robbery and carjacking. The stolen property consisted of personal items taken in the robbery and carjacking. Obviously, these losses were directly caused by the robbery and carjacking of which Fletcher was convicted.
Further, the court did not abuse its discretion in determining that the damage to Eugene’s car was also caused, in part, by Fletcher’s criminal conduct. According to Harris, just before he took the car, he and Fletcher agreed to meet at Harris’ house. Fletcher arrived about 30 minutes later, and told Harris that they would dispose of Eugene’s car at the Rose Bowl. Harris, Fletcher, and Brian Jones drove in Eugene’s car back to the alley to pick up Harris’ vehicle. Then, with Brian and Fletcher following in Harris car, Harris drove Eugene’s car to the Rose Bowl. It was in implementing Fletcher’s plan for disposing of Eugene’s car that Harris encountered Officer Lovera. Harris fled, and ultimately crashed Eugene’s car. On this record, the police chase and Harris’ crashing of Eugene’s vehicle bore a reasonable causal relationship to Fletcher’s participation in the carjacking and the attempt to dispose of the vehicle. Thus, the court did not abuse its discretion in concluding that the damage to the vehicle was the result, in part, of the carjacking of which Fletcher was convicted.
The present case is distinguishable from Leon, supra, on which Fletcher relies. There, Leon cashed a single stolen check, and his codefendant cashed three. The trial court imposed joint and several restitution on Leon for the losses caused by all the checks. The Court of Appeal reversed the restitution award, reasoning that “because $ 11,000 of [the victim’s loss] resulted from the crimes of [the codefendant], not Leon, and nothing in the record suggests that Leon aided and abetted commission of [the codefendant’s] crimes, the trial court was not authorized by section 1202.4 to order Leon to pay restitution for a crime he did not commit.” (Leon, supra, 124 Cal.App.4th at p. 622.)
Here, by contrast, as we have explained, the carjacking of which Fletcher was convicted bore a reasonable causal connection to the damage to Eugene’s car resulting from the police pursuit and Harris’ accident. Thus, the trial court did not abuse its discretion in imposing joint and several restitution on Fletcher for that loss.
For the same reason, this case is also distinguishable from the other decisions on which Fletcher relies, People v. Rivera (1989) 212 Cal.App.3d 1153, 1161-1164, and People v. Scroggins (1987) 191 Cal.App.3d 502, 505.
IX. Correction of Abstract
On the carjacking count, count 1, Fletcher was sentenced to a term of 20 years, calculated as follows: the middle term of 5 years, doubled to 10 years because of his prior strike conviction, plus an additional 10 years for the firearm use finding under section 12022.53, subdivision (b). Although one page of the abstract of judgment accurately reflects this sentence, another page incorrectly reflects a sentence of life. Fletcher contends that the abstract must be corrected. The People agree, as do we.
DISPOSITION
As to Harris, the judgment is affirmed in full.
As to Fletcher, the judgment is modified to delete the reference to a life sentence on count 1, and to reflect instead a sentence on that count of 20 years, calculated as follows: the middle term of 5 years, doubled for the prior strike conviction, plus 10 years under section 12022.53, subdivision (b). The clerk of the superior court is ordered to prepare an amended abstract of judgment so reflecting, and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment as to Fletcher is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
“1. Where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged, and
“2. If this person then actually believed that his life was so endangered.
“This rule does not apply to threats, menaces, and fear of future danger to his life.”
As Harris notes, the CALCRIM duress instruction, No. 3402, unlike CALJIC No. 4.40, specifically instructs the jury to consider, in evaluating the reasonableness of a defendant’s belief, “all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed.” Also unlike CALJIC No. 4.40, CALCRIM No. 3402 specifically informs the jury that “[t]he People must prove beyond a reasonable doubt that the defendant did not act under duress. If the People have not met this burden, you must find the defendant not guilty.”
“One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted.
“In order to find the defendant Harris guilty of the crimes of forcible rape, forcible sodomy or assault with a firearm, as charged in Counts 4, 5, 6, 7, or 8, you must be satisfied beyond a reasonable doubt that:
“1. The crime or crimes of Carjacking or robbery, as charged in counts 1, 2, and 3, were committed;
“2. That the defendant aided and abetted those crimes;
“3. That a co-principal in that crime or crimes committed the crime or crimes of forcible rape, forcible sodomy, or assault with a firearm; and
“4. The crimes of forcible rape, forcible sodomy, or assault with a firearm were a natural and probable consequence of the commission of the crimes of carjacking and robbery.
“In determining whether a consequence is ‘natural and probable,’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.
“You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of forcible rape, forcible sodomy, or assault with a firearm was a natural and probable consequence of the commission of that target crime.”