Opinion
B224387
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. MILTON MONTIEL GALLARDO, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA069541)
APPEAL from a judgment of the Superior Court of Los Angeles California, Mark S. Arnold, Judge. Affirmed in part as modified and remanded for further proceedings.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Milton Montiel Gallardo of first degree murder (Pen. Code, § 187, subd. (a) ), first degree burglary (§ 459), forcible rape (§ 261, subd. (a)(2)), sodomy by use of force (§ 286, subd. (c)(2)), and arson of an inhabited structure or property (§ 451, subd. (b)). The trial court sentenced defendant to 49 years to life in state prison, awarded defendant 920 days of presentence custody credit and 138 days of conduct credit, and imposed a $10 crime prevention fine pursuant to section 1202.5, subdivision (a).
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that his right to a fair and impartial verdict was violated by a juror who failed to disclose during jury voir dire that he had read an article about the crimes and then discussed the article during deliberations; there is insufficient evidence that the victim was alive when she was raped and sodomized; his sentence on each of the burglary, rape, and sodomy convictions violated section 654 because his murder conviction was tried on a felony murder theory with those offenses alleged as the underlying felony; and the trial court erred in awarding him 920 days rather than 921 days of custody credit. Respondent contends that the trial court erred in awarding defendant 138 days of conduct credit. We asked the parties to submit supplemental briefs addressing the issue of whether the trial court erred by including in its custody credit calculation a period during which defendant was incarcerated based on his conviction in a different case. We also asked the parties to brief the issues of whether the trial court erred in failing to impose certain assessments and penalties and a surcharge in connection with the crime prevention fine and, if so, whether the matter must be remanded for the trial court to determine defendant's ability to pay the fine in section 1202.5, subdivision (a) in light of the other assessments, penalties, and surcharge.
We hold that the trial court erred in failing to impose the appropriate assessments, penalties, and surcharge in connection with the section 1202.5, subdivision (a) crime prevention fine. Because the trial court failed to impose these assessments, penalties, and surcharge, and section 1202.5, subdivision (a) required the trial court to determine defendant's ability to pay that section's fine in light of such assessments, penalties, and surcharge, we remand the matter to the trial court to allow it to make that determination. We further hold that the trial court erred in calculating defendant's custody credit and in awarding defendant conduct credit. On remand, the trial court is to recalculate defendant's presentence custody credit. We otherwise affirm the judgment of conviction and order the abstract of judgment modified to reflect that imposition of sentence on defendant's first degree burglary conviction is stayed pursuant to section 654.
BACKGROUND
Libia Cabrera and her husband, Roque Cabrera, lived with their two children in Lawndale. Libia cleaned houses for a living. Every other Monday, Libia cleaned Tracy Gordon's house in Manhattan Beach from 9:00 a.m. to about 1:00 or 1:30 p.m. On Monday, April 11, 2005, Libia left for work about 8:00 to 8:30 a.m. and arrived at Gordon's house at 9:00 a.m. At some point, Gordon left his home and returned after 1:00 p.m. When Gordon returned, Libia had left and the house was spotless.
John Marcello owned a two-unit apartment building at 120 28th Street in Manhattan Beach. Marcello rented the upper unit to Dr. Randal Sutherland and maintained the lower unit as his office. Marcello had a video camera installed outside the building that recorded people walking on the street. The camera was operating on April 11, 2005.
Dr. Sutherland employed Libia to clean his apartment one full day and one half day a week on Fridays and Mondays. On April 11, 2005, Dr. Sutherland left for work about 8:30 a.m. Dr. Sutherland had given Libia a key to his apartment and he expected her to clean his apartment that day. Dr. Sutherland usually left his laptop computer on a desk in his apartment and the case for his computer nearby. Dr. Sutherland would not intentionally have turned on the wall heater in his bedroom before leaving for work or left it on during the day.
About 1:15 p.m., Marcello was in his office when he heard a noise that sounded like a smoke alarm coming from Dr. Sutherland's apartment. Marcello went to Dr. Sutherland's apartment to investigate. Marcello called out Dr. Sutherland's name and, upon receiving no response, entered the apartment. After entering the apartment, Marcello smelled smoke and determined that the sounding smoke alarm was in the bedroom. The bedroom's door was closed. Marcello opened the bedroom door and was thrown back by intense heat and smoke. Marcello instructed his wife Tricia Marcello to call 911 and to call Dr. Sutherland at work.
Upon receiving a call from Tricia Marcello concerning the fire, Dr. Sutherland went home. Dr. Sutherland was not allowed to enter his apartment that day. The next day Dr. Sutherland was permitted to enter his apartment accompanied by a detective. Dr. Sutherland noticed that very little cleaning had been done and that his laptop computer was missing. Dr. Sutherland believed that his computer bag also might have been missing.
Between 1:00 and 1:30 p.m. on April 11, 2005, City of Manhattan Beach Fire Department personnel responded to the fire in Dr. Sutherland's apartment. Fire Engineer Steven Fairbrother entered the bedroom and put out the fire. In the course of extinguishing the fire, Fairbrother observed an old-fashioned radiant heat wall heater that was glowing red hot, indicating that the heater was on. After the firefighters put out the fire, Libia's burned, nude body was discovered in the bedroom.
About 3:45 p.m. on April 11, 2005, Los Angeles County Sheriff's Department Detective Marcus Friedemann, an arson investigator, went to Dr. Sutherland's apartment. Detective Friedemann inspected the wall heater and found no evidence that there was a short circuit in the wiring. In his investigation, Detective Friedemann found a 10 to 12 foot trail of cloth material—clothes and bed linens—leading from the wall heater to Libia's body. Detective Friedemann opined that the fire was arson and that the arsonist ignited the trail of cloth material by turning on the wall heater—when the heater was sufficiently hot, the material caught fire.
About 9:00 p.m. on April 11, 2005, Los Angeles County Coroner's Office Investigator Thomas Ratcliffe went to Dr. Sutherland's apartment to investigate Libia's death. Libia was on her back with her legs spread, she was gagged with a T-shirt cotton type gag, and her hands were bound behind her back with a shoelace. Los Angeles County Coroner's Office Deputy Medical Examiner Dr. Raffi Djabourian determined that Libia died from a stab wound to her neck. Dr. Djabourian testified that he did not see any injuries to Libia's anus or external genital area, but that the burning and charring of the genital area impeded his examination. Dr. Djabourian also did not see any injuries to Libia's internal vaginal area.
Dr. Astrid Heger, a clinical professor of pediatrics at the University of Southern California, was trained in conducting sexual assault examinations and collecting samples for DNA testing. Dr. Heger testified that in 85 percent of sexual assaults of adults there is no evidence of trauma visible to the naked eye. Dr. Heger explained that a woman can be raped or sodomized forcibly and have no injuries. In the case of sodomy, if there is a lot of resistance, there might be some fissures or tears to the anus.
Los Angeles County Coroner's Office criminalist Sarah Dequintana prepared a sexual assault kit—the collection of sexual assault evidence in the form of swab sets and slides—from Libia's body. Dequintana took oral, internal vaginal, and internal anal swabs from Libia which she used to create slides. Los Angeles County Sheriff's Department criminalist Jamie Daughete analyzed the sexual assault kit for biological evidence. Daughete detected sperm on the vaginal and anal slides. Daughete took cuttings from the vaginal and anal swabs and placed them in tubes. Daughete gave the tubes to senior criminalist Gisele Lavigne for DNA analysis.
Levigne created a genetic profile from the vaginal and anal swabs. Levigne determined that the sperm from the vaginal sample contained genetic material that was consistent with at least two men, Roque Cabrera and an unknown contributor. Levigne determined that sperm from the anal sample contained genetic material what was consistent with Libia and Roque Cabrera as minor contributors, and an unknown person as the major contributor. Levigne created a profile for the unknown major contributor to the anal sample. On May 18, 2005, Levigne placed the profile of the unknown major contributor to the anal sample in the Combined DNA Indexing System (CODIS), a database of DNA profiles, to search for matching profiles.
Roque Cabrera testified that he and Libia engaged in vaginal intercourse on the morning of the offenses and denied ever engaging in anal intercourse with Libia. Dr. Heger explained that DNA from a husband who has never engaged in anal intercourse with his wife could be transmitted from the wife's vagina to her anus through drainage from the vagina onto the wife's underwear and then to her anus or from vaginal intercourse with a second man who then engaged in anal intercourse with the wife.
Just over two years later, on June 11, 2007, Levigne was notified of a "hit" between the unknown major contributor and a profile in the CODIS database for "Milton Antonio Gallardo." On August 6, 2007, Los Angeles County Sheriff's Department Sergeant Randy Seymour and Detective Kathy Gallagher went to Wasco State Prison where they collected a swab from the inside of defendant's mouth.
While at the prison, Sergeant Seymour and Detective Gallagher interviewed defendant. In the interview, Sergeant Seymour showed defendant a photograph of Libia. Defendant said that he had never before seen Libia. Sergeant Seymour showed defendant a video that showed a man walking on the street in Manhattan Beach and asked defendant if he was the person in the video. Defendant denied he was the person in the video. Sergeant Seymour told defendant that Libia had been raped, killed, and set on fire. Sergeant Seymour said that defendant's DNA matched DNA found inside Libia. Defendant said he had not "touched anybody" and "never had the feeling to kill anybody."
Sergeant Seymour and Detective Gallagher gave Levigne the oral swabs they obtained from defendant. Levigne used the swabs to create a genetic profile for defendant. Levigne compared defendant's profile to the male fraction of the vaginal sample and concluded that defendant was a possible contributor. Levigne compared defendant's profile to the major donor of the anal sample and concluded that defendant's profile matched the major donor's profile.
On August 27, 2007, Sergeant Seymour and Detective Gallagher returned to Wasco State prison to interview defendant a second time. Sergeant Seymour told defendant that testing showed that defendant's DNA was inside Libia, proving that he raped and killed her. Defendant denied that he had raped or killed anyone. Defendant said that he did not know and had never seen Libia.
After the interview concluded, and defendant was being escorted to a holding cell, defendant told the escorting officer that he had not been truthful and wanted to speak with Sergeant Seymour and Detective Gallagher again. Defendant told Sergeant Seymour and Detective Gallagher that he had met Libia at the beach, and she told him her name was "Carolina." Defendant and "Carolina" had been in a relationship for about six months. Defendant would rent a hotel room where he and "Carolina" would have sex and then "Carolina" would leave. Defendant did not rape or kill "Carolina." Defendant said "Carolina" would pick him up from his house in his car and he would accompany her as she cleaned houses. "Carolina" gave defendant money and a computer.
About 10:00 a.m., "that day," a man defendant believed was "Carolina's" husband saw defendant with "Carolina." "Carolina" told defendant to not be afraid. "Carolina" took defendant to a house where she was going to clean. "Carolina" stayed at the house to clean, and defendant walked away. Defendant was worried about "Carolina" because her husband had seen them together. Defendant was afraid that "Carolina's" husband was going to beat her up and tried to call her at night. "Carolina" did not answer. Carolina told defendant that her husband was very violent.
The jury was played excerpts of the April 11, 2005, recording from Marcello's video camera. The video showed Libia walking. The video also showed a man walk down the street and make a right turn. Dr. Sutherland was shown a still photograph from a surveillance video. The man was carrying a black bag that appeared to Dr. Sutherland to be similar to his computer bag.
Dr. Nicole Spaun, a Federal Bureau of Investigation forensic examiner of questioned photographic evidence, compared still photographs of a man on the video from Marcello's video camera and photographs of defendant. Dr. Spaun testified that there were similarities between the hair line and overall build of the shoulders and upper torso of the man in the video and defendant. There were no dissimilarities that would enable Dr. Spaun to eliminate defendant as the man on the video. Ultimately, however, the video images were of insufficient quality to enable Dr. Spaun to identify or eliminate defendant as the man on the video.
In his own defense, defendant testified that Libia, whom he knew as "Carolina Cabrera," was his lover. Defendant met Libia in early December 2004, and began a relationship with her soon thereafter. About a month into their relationship, "Carolina" told defendant that she was married. "Carolina" told defendant that she had problems with her husband—that he was violent and she was afraid of him—and she planned to divorce him. "Carolina" wanted to marry defendant and take him to Colombia. Defendant would see "Carolina" two to three times a week when they would engage in sexual activity.
According to defendant, at 7:40 a.m. on April 11, 2005, "Carolina" called him and arranged to meet him. At 8:00 a.m., "Carolina" picked up defendant at his house and took him to a nearby hotel where they rented a room and where they remained for about 40 minutes. Defendant and "Carolina" engaged in oral, vaginal, and anal sex. "Carolina" then took defendant home.
Defendant denied that he was the person depicted on the surveillance video or that he was near Dr. Sutherland's apartment on April 11, 2005. Defendant testified that he loved "Carolina" and denied binding, raping, or stabbing her or setting fire to the house in Manhattan Beach. Defendant testified that he lied to Sergeant Seymour and Detective Gallagher when he said he did not know Libia because he was afraid he would spend more time in prison for having slept with a married person.
DISCUSSION
I. The Trial Court Properly Denied Defendant's Motion for a Mistrial Based on Juror Misconduct
Defendant contends that the trial court erred in denying his motion for mistrial based on juror misconduct and thus violated his state and federal constitutional rights to have the charges against him tried by a fair and impartial jury. The trial court properly denied the motion.
A. Standard of Review
"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." (People v. Bolden (2002) 29 Cal.4th 515, 555.) "Whether a failure [of a juror] to disclose was intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court." (See People v. McPeters (1992) 2 Cal.4th 1148, 1175, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)
B. Background
During jury voir dire, the prospective jurors were provided with an 18-question questionnaire that included question number three, "Do you have knowledge of the facts in the case?" The trial court asked the prospective jurors if they had a "yes" response to any of the questions. The juror at issue, prospective juror number 4627 (who would become juror number 8 and the jury's foreman), did not respond "yes" to question number 3.
This court ordered the trial court to provide us with the prospective jurors' written responses to the questionnaire. The trial court responded that there were no written responses, but provided a copy of the questionnaire.
During deliberations, the court clerk informed the trial court that she had received a telephone call from juror number 1 in which the juror expressed her view that juror number 8 was "sort of like strong arming the jury to go his way." Later, jurors number 6 and 8 approached the clerk and juror number 8 said that he had read an article about the crimes at the time of Hurricane Katrina. The clerk asked juror number 8 if he remembered the article. Juror number 8 said that he "really didn't." The clerk asked jurors number 6 and 8 if the article had "come into play" in the jury's deliberations. Juror number 8 said that it had not. Juror number 6 said that he "thought it should have come out that the foreperson mentioned yesterday that he had read this article."
Based on the court clerk's representations, the trial court decided to examine the jurors involved in the matter. The trial court first examined juror number 6. Juror number 6 said that the issue arose the previous day when juror number 8 casually asked if anyone remembered when the crimes happened. Juror number 6 advised juror number 8 not to say anything more because the jury had not finished deliberating. Juror number 8 said that he was not going to say anything, only that he remembered it happened around Hurricane Katrina. Juror number 6 was concerned because juror number 8 had not said in voir dire that he knew something about the crimes.
The following day, juror number 6 told juror number 8 that he was bothered by juror number 8's failure to mention his prior knowledge of the crimes. Juror number 8 said that he had read about the crimes in the newspaper. Juror number 3 was present during the discussion. The trial court asked juror number 6 if juror number 8 or any other juror had brought up anything that was in the media coverage of the crimes. Juror number 6 responded, "nothing," "zero," "absolutely nothing." Juror number 6 expressed her opinion that juror number 8 had been a "really great foreman," and said, "Nothing has been talked about except for things that have been shown to us as facts or evidence in the case."
The trial court next examined juror number 1. Juror number 1 said that juror number 8 asked the other jurors, "You don't remember about this article in the news?" When the jurors responded, "No," juror number 8 said that "it stuck to [his] heart because [of] Katrina." Juror number 8 said that his gardener's wife cleaned houses and that he had told his gardener to advise his wife to be careful. Juror number 1 said that none of the jurors, including juror number 8, had discussed anything that had not been presented at trial.
The trial court next spoke with juror number 3. Juror number 3 said that the previous day juror number 8 said he had read an article in the paper about the crimes around the time of Hurricane Katrina. Juror number 8 did not mention anything about the article, only that there had been a "murder, fire kind of thing." With respect to juror number 6's conversation with juror number 8 that morning, juror number 3 reported that when juror number 6 told juror number 8 that he was bothered that juror number 8 had read the article, juror number 8 said, "Well, okay. Let's bring it up." Juror number 3 stated that none of the jurors had discussed any newspaper articles.
Finally, the trial court spoke with juror number 8. Juror number 8 stated that he had read about the crimes in the newspaper. The trial court asked juror number 8 about his non-response to the voir dire question, "Do you have prior knowledge of this case?" Juror number 8 responded that he had read an article about the crimes in 2005 but did not associate the article with this case during voir dire. Juror number 8 did not remember the article's content and the article had not influenced him in any way. Juror number 8 did not remember having read the article until he was in jury deliberations following the presentation of the evidence. Juror number 8's non-response to the question concerning prior knowledge of the case was an honest answer. Juror number 8 stated that nothing had been discussed during jury deliberations other than the evidence.
After the trial court sent juror number 8 back to the jury deliberation room, defense counsel made a motion for mistrial. Defense counsel stated his belief that juror number 8 "did in fact know which article. He's right. It was around Katrina. He's absolutely right about that. And the articles that were in the Daily Breeze were very specific as to what was found and what occurred. The evidence what was existing at that time and that type of article is something that doesn't leave your mind anytime soon. It's something that kind of sticks with you. And I do not believe his explanation."
The trial court denied the mistrial motion. The trial court stated that none of the jurors had reported that juror number 8 related any facts from the newspaper article, only that he had previously read about the crimes. The trial court found that juror number 8 had not engaged in misconduct by failing to mention in voir dire that he had read the article. The trial court stated that juror number 8 seemed forthright when the juror stated that he did not remember reading the article until the trial was almost complete.
C. Application of Relevant Principles
"An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is '"capable and willing to decide the case solely on the evidence before it"' [citations]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) "[D]uring jury selection the parties have the right to challenge and excuse candidates who clearly or potentially cannot be fair. Voir dire is the crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. 'A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]' [Citations.]" (Id. at p. 295.)
"Misconduct by a juror . . . usually raises a rebuttable 'presumption' of prejudice. [Citations.]" (In re Hamilton, supra, 20 Cal.4th at p. 295.) "[W]hether an individual verdict must be overturned for jury misconduct or irregularity ""'is resolved by reference to the substantial likelihood test, an objective standard.'"' [Citation.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]" (In re Hamilton, supra, 20 Cal.4th at p. 296.)
"[A]n honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror's wrong or incomplete answer hid the juror's actual bias." (In re Hamilton, supra, 20 Cal.4th at p. 300.) "'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]' [Citation.]" (People v. San Nicolas (2004) 34 Cal.4th 614, 644.)
Juror number 8's failure to state in voir dire that some five years earlier he had read a newspaper article about the crimes in this case was not intentional concealment, but rather an honest mistake. The trial court examined juror number 8 about when he remembered reading the article. The trial court found juror number 8 forthright in his response that he only remembered the article during voir dire. The trial court's finding was not an abuse of discretion. (People v. San Nicolas, supra, 34 Cal.4th at p. 644.)
The trial court also did not abuse its discretion in impliedly finding that juror number 8 was not biased. (People v. San Nicolas, supra, 34 Cal.4th at p. 644.) Juror number 8's statements to fellow jurors concerning the article were limited. Juror number 8 said that he read an article about the crimes around the time of Hurricane Katrina; that the crimes involved a "murder, fire kind of thing"; and that he told his gardener to advise his wife who cleaned houses to be careful. Juror number 8 did not otherwise remember the article's content and stated that the article had not influenced him in any way. All of the jurors that were examined—jurors number 1, 3, 6, and 8—stated that the article played no part in the jury's deliberations. When juror number 6 told juror number 8 that he was bothered that juror number 8 had read the article, juror number 8 suggested that the matter be brought to the trial court's attention. There was a sufficient basis for the trial court to conclude that juror number 8's failure to remember during voir dire that he read an article about the crimes in this case five years earlier did not irreparably damage defendant's chances of receiving a fair trial. The trial court did not abuse its discretion in denying defendant's motion for mistrial. (People v. Bolden, supra, 29 Cal.4th at p. 555.)
II. Sufficient Evidence Supports Defendant's Rape and Sodomy Convictions
Defendant contends that insufficient evidence supports his rape and sodomy convictions because there was no evidence that Libia was alive at the time the crimes were committed. We disagree.
A. Standard of Review
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]" (People v. Medina (2009) 46 Cal.4th 913, 919.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) "We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation] . . . . '[I]t is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]'" (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
B. Application of Relevant Principles
"Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator" under certain circumstances including the circumstance when the sexual intercourse is "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subds. (a) & (a)(2).) "Rape requires a live victim." (People v. Kelly (1992) 1 Cal.4th 495, 524; CALCRIM No. 1000.)
"Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).) Like rape, sodomy requires a live victim. (People v. Ramirez (1990) 50 Cal.3d 1158, 1176.)
During deliberations, the jury asked for a read back of all testimony from Drs. Djabourian and Heger. The trial court asked the jury if it could identify the particular issues on which it needed assistance. The jury responded, "criteria for rape requires victim to be alive (as opposed to sodomy where victim apparently can be dead or alive). There was testimony from witnesses (Rafi [sic] & Heger) regarding this and would like to hear it again." The parties agreed that there was no testimony on that issue and the trial court so informed the jury.
Unlike the instruction on rape, CALCRIM No. 1000, the jury instruction on sodomy, CALCRIM No. 1030, did not tell the jury that sodomy requires a live victim. Defendant makes no claim with respect to the form of the sodomy jury instruction.
Citing the parties' agreed upon response to the jury, defendant contends that there is no evidence that Libia was alive at the time of the rape or sodomy. Instead, defendant argues, the evidence reflects that Libia "may have been killed prior to the commission of the rape and sodomy." In support of this argument defendant cites the lack of injuries to Libia's vagina or anus that would have proven that the rape and sodomy took place prior to Libia's death, and the presence of DNA in Libia's anus despite Dr. Heger's testimony that "the anus is built to evacuate and get rid of material."
The prosecution was not required to prove that Libia was alive at the time of the rape and sodomy through evidence of physical injuries to Libia's vagina and anus. Indeed, Dr. Heger testified that a woman can be raped or sodomized forcibly and have no injuries. As for the presence of DNA in Libia's anus, Dr. Heger testified that the anus evacuates material through such actions as defecation or "walking around." Dr. Heger testified that if Libia was raped and sodomized in a supine position and then killed immediately after, the ejaculate would have remained in Libia's anus because she would not have moved.
There was substantial circumstantial evidence that Libia was alive when defendant raped and sodomized her. When Libia's body was found, she was nude, her hands were bound behind her back, and she was gagged. From such evidence, a reasonable juror could conclude that Libia was nude when she was bound and gagged, that she was bound to facilitate the rape and sodomy, and that she was gagged to prevent her from seeking help from others as defendant raped and sodomized her. A reasonable juror also could conclude from Libia's being bound that Libia was alive at the time of the rape and sodomy because defendant would have encountered no resistance in performing acts of vaginal and anal intercourse on a dead person and thus would have had no reason to bind Libia if she were dead. A reasonable juror further could find that defendant murdered Libia as part of an effort to avoid detection for the rape and sodomy.
III. The Trial Court Should Have Stayed Imposition of Sentence on Defendant's First Degree Burglary Conviction Pursuant to Section 654
The prosecution tried defendant for first degree murder on a felony murder theory with first degree burglary, forcible rape, or sodomy by force as the underlying felonies. Having been convicted of felony murder, defendant contends that the trial court erred in failing to stay imposition of sentence on his first degree burglary, rape, and sodomy convictions pursuant to section 654. Respondent contends that the trial court should have stayed imposition of sentence on defendant's first degree burglary conviction pursuant to section 654. We agree with respondent.
Section 654, subdivision (a) provides, in pertinent part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "In Neal v. State of California (1960) 55 Cal.2d 11, this court construed the statute broadly: '"Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Id. at p. 19, italics added.)" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) When a defendant has been found guilty of first degree murder based on a felony-murder theory, section 654 requires that the punishment for the underlying felony be stayed. (See People v. Meredith (1981) 29 Cal.3d 682, 696; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576.)
"'The question whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.' ([People v.] Hutchins [(2001)] 90 Cal.App.4th [1308,] 1312.) The court's findings may be either express or implied from the court's ruling. (See People v. Blake (1998) 68 Cal.App.4th 509, 512 .) In the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective. (See, e.g., People v. Blake, supra, at p. 512; People v. Osband (1996) 13 Cal.4th 622, 730-731 [55 Cal.Rptr.2d 26, 919 P.2d 640].) '"We must 'view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]' [Citation.]" [Citation.]' (Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)" (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
The trial court instructed the jury that for defendant to be guilty of felony murder defendant had to commit an act that caused Libia's death while committing or attempting to commit first degree burglary, forcible rape, or sodomy by force. The jury was instructed that to be guilty of first degree burglary defendant had to enter an inhabited house with the intent to commit theft, forcible rape, or sodomy by force. The jury found defendant guilty of first degree murder, first degree burglary, forcible rape, sodomy by force, and arson of an inhabited structure or property.
The trial court sentenced defendant to a combination of determinate and indeterminate terms. As for the determinate term, the trial court sentenced defendant to a term of eight years for his arson conviction, to consecutive eight year terms for his rape and sodomy convictions, and to a four year concurrent term for his first degree burglary conviction. The trial court sentenced defendant to an indeterminate term of 25 years to life for his murder conviction. With respect to defendant's murder conviction, the trial court stated that defendant killed Libia to avoid being identified as the perpetrator of the rape and sodomy. With respect to defendant's first degree burglary conviction, the trial court stated that it was imposing a concurrent term because the burglary "merges into" the murder.
For purposes of section 654, defendant had an objective for the rape and sodomy separate from the objective for the murder. Defendant's objective in raping and sodomizing Libia was sexual gratification. As the trial court found, defendant's objective in murdering Libia was to avoid identification as the perpetrator of the rape and sodomy. Thus, separate punishments for the rape and sodomy and the murder were appropriate. Implicit in the trial court's statement that it was sentencing defendant to a concurrent term for his first degree burglary conviction because that offense merged into the murder is the finding that the burglary and murder were part of an indivisible course of conduct—i.e., the burglary was the felony supporting the felony murder conviction. Thus, the trial court should have stayed imposition of sentence for defendant's first degree burglary conviction pursuant to section 654. Accordingly, the abstract of judgment is ordered modified to reflect that imposition of sentence on defendant's first degree burglary conviction is stayed pursuant to section 654.
IV. Crime Prevention Fine and Associated Assessments, Penalties, and Surcharge
We asked the parties to submit supplement briefs addressing the issues of whether the trial court erred in failing to impose certain assessments and penalties and a surcharge in connection with the section 1202.5, subdivision (a) crime prevention fine and, if so, whether the matter must be remanded for the trial court to determine defendant's ability to pay the fine in section 1202.5, subdivision (a). The parties agree, as do we, that the trial court erred in failing to impose the appropriate assessments, penalties, and surcharge in connection with the crime prevention fine, and that the matter must be remanded to the trial court to determine defendant's ability to pay the section 1202.5, subdivision (a) fine.
The trial court assessed a $10 crime prevention fine pursuant to section 1202.5, subdivision (a). In People v. Castellanos (2009) 175 Cal.App.4th 1524 (Castellanos ), we held, "when a full $10 section 1202.5, subdivision (a) fine is imposed, trial courts in Los Angeles County must also impose seven additional sums: the $10 section 1464, subdivision (a)(1) penalty assessment; the $7 Government Code section 76000, subdivision (a)(1) penalty assessment; the $2 Government Code section 76000.5, subdivision (a)(1) penalty assessment; the $2 Penal Code section 1465.7, subdivision (a) state surcharge; the $3 Government Code section 70372, subdivision (a)(1) state court construction penalty; the Government Code section 76104.6, subdivision (a)(1) $1 deoxyribonucleic acid penalty; and the Government Code section 76104.7, subdivision (a) $1 deoxyribonucleic acid state-only penalty. Thus, the additional sum due is $26 if the trial court, as it did here, imposes the full section 1202.5, subdivision (a) $10 fine in Los Angeles County." (Id. at p. 1530.) The trial court erred in failing to impose these assessments, penalties, and surcharge.
Imposition of a section 1202.5, subdivision (a) crime prevention fine is subject to a defendant's ability to pay. In assessing a defendant's ability to pay the section 1202.5, subdivision (a) fine, a trial court must take into account the assessments, penalties, and surcharge discussed above. (Castellanos, supra, 175 Cal.App.4th at p. 1532.) Because the trial court did not impose the assessments, penalties, and surcharge, it necessarily did not take them into account in imposing the crime prevention fine. We will remand the matter to the trial court to impose the proper assessments, penalties, and surcharge, and to take them into account in imposing the section 1202.5, subdivision (a) fine.
V. Defendant's Presentence Credits
In his opening brief, defendant stated that the trial court erred in awarding him 920 days of presentence custody credit rather than 921 days, and that he had requested the trial court to correct the error. Defendant requested this court to correct the error in the event the trial court failed to do so. In its respondent's brief, respondent noted that the trial court had recalculated defendant's custody credit and had issued an abstract of judgment reflecting 921 days of custody credit. Respondent does not challenge the trial court's recalculation of defendant's custody credit. Instead, respondent challenges the trial court's award of 138 of presentence conduct credit. We asked the parties to submit supplemental briefs addressing the issue of whether the trial court erred in awarding defendant custody credit in this case for the period from October 15, 2007, until July 8, 2008, when defendant received credit for that period of custody in another case.
The modified abstract of judgment was filed with this court.
Respondent may raise a trial court's error in calculating presentence credit on appeal. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
In its supplemental brief, respondent includes in its recalculation of defendant's presentence credit 98 days of conduct credit. Given respondent's contention in its respondent's brief that defendant is not entitled to any conduct credit, we view respondent's inclusion of conduct credit as a mistake.
In our credit calculations, we include the date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) and the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526). A defendant is not entitled to receive credit for his or her custody in a pending case when the defendant is in custody in another case and receives credit for that custody in that case. (People v. Bruner (1995) 9 Cal.4th 1178, 1180; In re Joyner (1989) 48 Cal.3d 487, 489; In re Rojas (1979) 23 Cal.3d 152, 155.)
The trial court appears to have awarded defendant custody credit from the date defendant was arrested—October 15, 2007—to the date defendant was sentenced—April 22, 2010, a period of 921 days. Defendant's probation report reflects that defendant was in custody at least from August 1, 2007, to July 8, 2008 based on his conviction in Orange County Superior Court Case No. 07HF1363. The parties agree that defendant was ineligible to receive custody credit in this case for the period he was in custody due to his incarceration in Case No. 07HF1363. (People v. Bruner, supra, 9 Cal.4th at p. 1180; In re Joyner, supra, 48 Cal.3d at p. 489; In re Rojas, supra, 23 Cal.3d at p. 155.) We remand this matter for the trial court to determine the period defendant was in custody in Case No. 07HF1363 and to exclude that period from its calculation of custody credit in this case.
In its challenge to the trial court's award of 138 days of presentence conduct credit, respondent contends that section 2933.2 bars any award of conduct credit to defendant because defendant was convicted of murder. {People v. Wheeler (2003) 105 Cal.App.4th 1423, 1431-1432 [because the conduct credit prohibition in section 2933.2 applies to the offender and not the offense, a defendant convicted of murder may not accrue conduct credit even if he also is convicted of offenses other than murder].) In his reply brief, defendant does not contend that he is entitled to conduct credit. Because defendant was convicted of murder, the trial court erred in awarding him conduct credit. (People v. Wheeler, supra, 105 Cal.App.4th at pp. 1431-1432.) Accordingly, in its recalculation of presentence credit on remand, the trial court is not to award defendant any days of conduct credit.
At the time of defendant's sentencing, section 2933.2 provided:
"(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933.05.
"(b) The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law.
"(c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a).
"(d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative."
DISPOSITION
The abstract of judgment is ordered modified to reflect that imposition of sentence on defendant's first degree burglary conviction is stayed pursuant to section 654. The matter is remanded to the trial court to impose the penalties, assessments, and surcharge as discussed above, and to recalculate defendant's presentence custody credit. The matter is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.