Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA080045 Tomson T. Ong, Judge
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Deputy Attorney General, Jamie L. Fuster and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted Jesus Tarelo Gonzalez of multiple felonies stemming from his conduct at a party: (1) kidnapping to commit rape (Pen. Code, § 209); (2) forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)); and (3) attempted forcible rape (§§ 667, 261, subd. (a)(2)). The trial court thereafter sentenced Gonzalez to life on count 1, and stayed sentence pursuant to section 654. He then imposed 25 years to life in state prison on count 2, pursuant to section 667.61. In addition, the court imposed an eight-year term of imprisonment on count 2. On count 3, the trial court imposed one-third the midterm, or two years, consecutive to count 2. Gonzalez then appealed his convictions and his sentence. Gonzalez raises three errors. First, he claims the trial court erred in admitting evidence of the victim’s statements regarding emotional injuries. Second, he argues the trial court had a sua sponte duty to instruct the jury on lesser included offenses. Finally, he argues, and the People agree, that the trial court erred in sentencing him to 25 years to life plus eight years on count 2, in addition to two years on count 3. We reject Gonzalez’s claims of evidentiary and jury instructional error and affirm his conviction. We agree with Gonzalez regarding his sentence, and remand for further proceedings consistent with this opinion.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
1. The Prosecution Evidence
On October 24, 2008, Olga C. attended a party with her sister, Margarita, and her cousin, C.O., where Olga drank six beers over a two-hour period. C. introduced Gonzalez to Olga. Gonzalez danced with Olga. Olga did not want to dance with Gonzalez because he touched her too much. Olga told Gonzalez to stop touching her; in response, Gonzalez simply smiled. Gonzalez asked Olga to dance on more than one occasion, but she did not agree. While Olga and her sister were dancing, Gonzalez approached them and asked to dance with Olga. C. told Gonzalez to leave Olga alone. Despite appearing disappointed, Gonzalez did not leave the dance floor. Later during the party, Gonzalez invited Olga to leave the party to purchase beer. Olga did not want to go with Gonzalez, but agreed to do so after C. agreed to go with the two of them. After they returned from purchasing beer, Olga danced with C. and C.’s nephew, Javier. Olga later slapped Javier because he cussed at her too much.
At approximately 1:30 a.m. on October 25, the group decided to leave the party. C.’s husband drove Olga, C., Margarita and Javier to C.’s house. The group decided to continue the party at C.’s house. Gonzalez asked C. if he could come to her house and C. agreed. Gonzalez arrived 20 minutes later and joined the group in the living room. Gonzalez later left the living room and walked outside.
During the ride to C.’s house, Olga fell asleep. Once the group arrived at C.’s house, they left her asleep in the car, where she later awoke. Olga tried to enter C.’s house because she had to use the restroom. She could not enter the house because access to it was blocked. As she tried to enter the house another way, Gonzalez suddenly appeared. After Gonzalez asked where she was going, Olga responded that she needed to use the restroom. Gonzalez told Olga he would take her to the restroom, but Olga demurred.
Olga turned away from Gonzalez, but he walked behind her. He then pushed Olga, grabbed her shoulder and put a hand over her mouth. Olga screamed and tried to uncover her mouth, but was unable to do so. Gonzalez then began to drag Olga to a fairly well lit alley behind C.’s house. Olga fell down and Gonzalez proceeded to drag her farther into the alley. At some point, Gonzalez pushed Olga down, slamming her head on the cement. At this point, she was lying on her back. Again, Gonzalez covered Olga’s nose and mouth with his hand, causing her to be unable to breathe. Gonzalez said, “This is what you wanted, so stop acting like you didn’t want this because you really did.” As Olga was screaming, Gonzalez pulled down Olga’s pants and underwear. While Olga struggled to keep her clothes on, Gonzalez said “you know you want this.” Olga screamed for Gonzalez to stop and responded that she did not want to have sex with Gonzalez. She then told him to get off of her. Gonzalez, who was straddling Olga, unzipped his pants, took out his penis, covered her mouth with one hand, and touched her vagina with the other hand. Gonzalez penetrated her vagina with his finger. During the struggle, Gonzalez’s cellular telephone went off, causing him to become nervous. As a result, Olga was able to push Gonzalez off of her. Before he left, Gonzalez looked for his camera which had just fallen.
While Olga was struggling with Gonzalez, Margarita discovered that Olga was not in the car. Margarita, C., Jose and Javier began looking for Olga, yelling her name. Margarita worried about Olga because Gonzalez was not around and wanted to “get at [Olga] at the party.” At this point, Olga ran up to Margarita, who was standing with C. Olga hugged C. and said, “he tried to rape me.” Margarita asked Olga to whom she was referring and Olga responded by identifying Gonzalez, the person with the camera. Gonzalez had a camera at the party. Olga fainted and was helped inside C.’s house. The group then called the police.
C. testified that Olga stated, “Chewy tried to rape me.” Chewy is a Hispanic nickname for Jesus.
During the time Olga was struggling with Gonzalez, a neighbor, Turner, who was awakened by screams, went outside. Turner saw two figures and heard a woman screaming, “please stop” while another figure leaned over her. Turner went inside to retrieve a flashlight and keys, and returned to hear a slapping sound. After the slapping sound, he heard a man’s voice saying goodbye and running sounds. Turner was unable to identify the figures.
Turner worked for the district attorney’s office, but said his job would not influence his testimony.
The police arrived at C.’s house at 4:30 a.m. Police found Olga hysterical, laying in the fetal position. Olga was crying and looked like she had been in a fight. Long Beach Police Officer Shawn Loughlin interviewed Olga. When asked who attacked her, Olga responded that she did not know his name. Margarita told officers that the person who had attacked Olga was outside. Olga identified Gonzalez as her assailant during a field show-up. Margarita and C. confirmed that Gonzalez was Olga’s attacker. Olga told Officer Loughlin that she was attacked in the alley; Officer Loughlin searched the alley and found Olga’s credit card.
Olga was then taken to the hospital. Forensic nurse Robin Shaw conducted a sexual assault examination. Olga suffered a cut to the back of her head, two cuts on her leg, scratches on her hand and back, and an abrasion on her cheek. Shaw noted that Olga’s underwear was also torn. Shaw observed that during the examination, Olga was speaking softly, crying and using her sister and cousin for support. Shaw opined that Olga’s injuries were consistent with the type of attack she described. Shaw’s pelvic examination revealed vaginal tearing, consistent with blunt force trauma with a foreign object. The tearing could have been caused up to two days earlier.
The day after the attack, Olga complained of physical pain and nausea, causing her to vomit. Olga could not go to work after the attack. She felt different and found it difficult to be around her four-year-old daughter. Olga also felt “weird” around her male friends.
2. The Defense Case
Gonzalez’s cousin, Fernando Gonzalez, testified for Gonzalez. Fernando characterized Gonzalez as calm and shy with women. Fernando stated that he, Gonzalez, and cousins Arnolfo and Antonio, attended the October 24 party together. During the party, Gonzalez and Olga were drinking beer. They shared a table and Fernando stayed at the table for three hours. During that time, Fernando saw Gonzalez dance with Olga twice. During those dances, Fernando saw Olga trying to touch Gonzalez’s penis. Fernando characterized both Olga and Gonzalez as being drunk, with Olga being out of control.
Fernando, Gonzalez and his cousins left the party at 1:30 a.m. The group went to get something to eat, after which Gonzalez left with his friend Angel. At approximately 2:30 a.m., Fernando and his cousin Arnolfo went to C.’s house to speak with Gonzalez. Gonzalez was there when they arrived. Gonzalez told Fernando he would leave later. Fernando returned to his home and went to sleep. He awoke around 3:30 a.m. to a telephone call. Gonzalez was asleep on the other couch. After the telephone call, Angel picked up Fernando and Gonzalez. The three went back to C.’s house. Upon arriving at C.’s house, the police were present. The officers asked the three males which one was Jesus Gonzalez and for him to step forward. Gonzalez was then arrested.
Gonzalez testified in his own behalf. He admitted he attended the October 24 party with Fernando and his cousins. During the party, Gonzalez drank three or four beers. He gave Olga money to buy beer; they bought beer and tequila. He danced with Olga twice. Olga never refused to dance with him. While slow dancing, Olga touched his penis. Gonzalez was embarrassed and moved Olga’s hand. After the second dance, Gonzalez and Olga went to buy beer. Gonzalez stated that he asked Olga to dance a second time “just because.” They continued to drink and Olga was drunk. Again, Olga touched Gonzalez’s penis, and Gonzalez moved Olga’s hand away. Gonzalez characterized Olga as the aggressor the whole evening. As they were leaving the party, Gonzalez pulled Olga away from Javier whom she had just slapped. Gonzalez testified he never saw Olga again after the party.
Gonzalez left the party with Fernando and his cousins before Olga and her family left the party. The males then went to get something to eat. Later, Angel arrived at 2:00 a.m. to pick up Gonzalez. The two drove to Olga’s cousin’s house. Gonzalez and Angel went inside where they found Olga’s sister, Olga’s cousin and her husband, as well as two other men. Olga was not inside. Gonzalez drank one beer during the course of an hour. He walked for 10 minutes, alone, to his home. Gonzalez denied seeing Olga after the party and denied ever touching her.
When Gonzalez arrived at his house, he went to sleep on the couch. Fernando was already asleep. Angel’s call awoke Gonzalez. Angel asked Gonzalez whether Gonzalez tried to do anything to Olga. Gonzalez said he did not. Angel responded that someone had tried to rape Olga. He then asked Gonzalez to return to C.’s house to “straighten things out.” Gonzalez agreed and explained the conversation to Fernando. Angel arrived at Gonzalez’s house and picked up Gonzalez and Fernando. They then went to C.’s house. When they arrived, one of the officers said, “Jesus Gonzalez, step forward.” In response, Gonzalez raised his hand. When the officers asked him questions in English, Gonzalez said he did not understand.
On cross-examination, Gonzalez denied giving another story to Long Beach Police Officers Alberto Leon and Perez. Gonzalez testified that he did not recall whether the officers read him his Miranda rights in Spanish. Nor did Gonzalez remember telling the officers that he met Olga at the party, that she danced with him and rubbed her hand on his penis, or that he and Olga went to a house. Gonzalez did not remember telling officers that he and Olga walked to an alley behind the house, that Olga rubbed her hands over his chest and penis or that Gonzalez asked to do the same to Olga. He did not remember stating that he and Olga were on the ground kissing each other, or that he penetrated Olga’s vagina with his index finger for a few minutes.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3. The People’s Rebuttal Case
During the early morning hours of October 25, Officer Leon interviewed Gonzalez, who was in custody. He read Gonzalez his Miranda rights in Spanish; Gonzalez stated he understood his rights. Leon asked Gonzalez what happened that night. Gonzalez responded that he had met Olga at a party. He told Leon that he and Olga had danced and kissed at the party. Olga started to rub his penis through the outside of his clothing. Gonzalez became embarrassed so he told Olga to stop. Gonzalez then detailed what happened after the party. Gonzalez told Leon that once he and Olga arrived at an unknown house, he and Olga went to an alley behind the house. Both Gonzalez and Olga were on the ground kissing and rubbing each other. Olga rubbed Gonzalez’s penis. Gonzalez grabbed and squeezed Olga’s breasts. Gonzalez unzipped Olga’s pants and digitally penetrated her vagina for a few minutes. Gonzalez’s hand was over Olga’s mouth to keep her from moaning. Gonzalez stopped a few minutes later because he became uncomfortable with what they were doing.
4. The Sentencing Hearing
After four days of trial, the case was submitted to the jury. The jury deliberated one day before returning its verdict. The jury found Gonzalez guilty as set forth in the outset of this opinion. The jury found the special allegation, that the kidnapping would substantially increase the risk of harm, to be true. (§ 667.61, subds. (a) & (b).) On May 22, 2009, after denying Gonzalez’s motion for new trial, the court sentenced Gonzalez as follows: (1) count 1: life, imposition of which was stayed pursuant to section 654; (2) count 2: 25 years to life based upon the section 667.61 special allegation having been found true, plus an eight-year prison term; and, (3) count 3: one-third the midterm of six years, or two years, in state prison to run consecutively to count 2. Gonzalez filed a timely notice of appeal.
DISCUSSION
Gonzalez raises three claims of error: (1) the trial court’s admission of Olga’s state of mind regarding the incident; (2) the trial court’s failure to give instructions on sexual battery; and, (3) the trial court’s sentence on count 2 of 33 years to life. We disagree with Gonzalez’s first two arguments and affirm his convictions. We agree with Gonzalez’s claim of sentencing errors, reverse in part, and remand for further proceedings consistent with this opinion.
I. The Trial Court Did Not Abuse its Discretion in Admitting Evidence of Olga’s State of Mind
Gonzalez first claims that the trial court improperly admitted victim impact evidence in the People’s case. We disagree. In assessing whether the trial court erred, we apply the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1132.) Any “[e]rror in the admission of evidence warrants reversal only if it is reasonably probable a result more favorable to the appellant would have been reached in the absence of the error.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1446, citing People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.)
During the People’s direct examination of Olga, the prosecutor asked Olga whether she had “any problems because of [her] injuries after the night of the attack.” Olga responded in the affirmative and detailed that she felt “bad” and “weird.” She also testified that she could not “hang around with lots of guys like friends” because she felt “weird” around them. The questions right before this testimony centered upon her medical exam after the attack. The questions after this testimony focused upon her injuries, including her nausea the day after the medical examination. Defense counsel interposed objections based upon relevance and Evidence Code section 352, which the court overruled. Gonzalez claims that the court erred in overruling the objections in violation of the due process clause.
Gonzalez is mistaken. In cases involving rape, “ ‘evidence is relevant if it establishes any circumstance making the victim’s consent to sexual intercourse less plausible.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1114.) Such evidence provides corroboration of a victim’s testimony regarding lack of consent. Contrary to Gonzalez’s assertion, the trial court properly found that the brief testimony went to Olga’s state of mind. Olga mentioned the word “weird” twice but did not further describe her feelings. She testified that the injuries affected her interactions with her daughter and with men. While the questions themselves were not directly limited to a particular time frame, the questions immediately before and after dealt with the events immediately after the attack. The inference derived from the surrounding questions was that the questions about feeling “bad” and “weird” were a reference to the time frame immediately after the attack. This evidence was relevant and provided circumstantial evidence that Olga did not consent to the sexual assault. It did not violate the due process clause.
Further, any possible error was harmless because the testimony was brief and not inflammatory.
II. The Court Properly Instructed the Jury
Gonzalez asserts that the trial court had a sua sponte duty to instruct on felony or misdemeanor sexual battery as lesser included offenses. We disagree. In determining whether the trial court improperly failed to instruct on a claimed lesser included offense, we apply a de novo standard of review. (People v. Licas (2007) 41 Cal.4th 362, 366.) A trial court bears a sua sponte obligation to instruct on a lesser included offense only where substantial evidence exists. (Ibid.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “Substantial evidence” has been described as evidence from which a reasonable jury might conclude that the lesser offense, not the greater was committed. (Ibid.)
Here, because we find that no substantial evidence supported either sexual battery instruction, we do not reach the issue of whether felony sexual battery or misdemeanor sexual battery are lesser included offenses of forcible sexual penetration. Even assuming that both types of sexual battery are lesser included offenses, no substantial evidence existed to warrant the instructions. Olga testified that Gonzalez digitally penetrated her. When her recollection was refreshed, Olga did not simply adopt the preliminary hearing testimony. She clarified her response, “Well, you could say one of his fingers, but not all his hand.” The court then clarified, “So you’re telling this jury that the long finger went inside your vagina, penetrated inside your vagina, however slightly?” Olga responded, “Yes.” Officer Leon testified to Gonzalez’s statements to him. Gonzalez admitted that he digitally penetrated Olga, specifically telling Officer Leon that he used his right index finger. Forensic nurse Shaw’s examination found vaginal tearing consistent with penetration from a foreign object. Gonzalez testified he never saw Olga after she left the party. No reasonable jury could conclude, in the face of the evidence presented, that Gonzalez was guilty of the lesser offenses but not the greater offense. Therefore, the trial court properly instructed the jury.
III. The Trial Court Erred in Calculating Gonzalez’s Sentencing
Gonzalez claims that the trial erred when it imposed an eight-year high term sentence and also an indeterminate sentence of 25 years to life, both on count 2. We agree. Gonzalez also claims that the trial court erred when it imposed one-third the middle term of two years on count 3 and ordered that count to run consecutively to count 2. We agree with Gonzalez on this issue as well.
1. The Enhancement Pursuant to Section 667.61 Cannot Be Combined with the Triad
The “One Strike” Law, embodied in section 667.61 provides an alternative sentencing scheme for persons convicted of specified sex offenses committed under special circumstances. A violation of section 289, subdivision (a)(1), which Gonzalez was convicted of in this case, is one of the specified offenses. The One Strike Law is an alternative sentencing scheme, not an enhancement. As an alternative sentencing scheme, section 667.61 operates to increase the base term, unlike an enhancement which is imposed as an additional term of imprisonment added to a base term. (People v. Jones (1997) 58 Cal.App.4th 693, 709.) The trial court erred in imposing both an eight-year base term in addition to the indeterminate term. The indeterminate base term of 25 years on count 2 is the only appropriate sentence. (§ 667.61, subd. (d).) Accordingly, the eight year determinate term must be stricken.
2. Count 3 Requires Resentencing
Section 1170.1 governs the consecutive sentencing scheme, and provides a unique and exacting method for imposing sentence on multiple counts. However, when a determinate sentence is combined with an indeterminate sentence, section 1170.1, subdivision (a), does not apply. The only issue is whether the aggregate determinate sentence runs fully consecutive or fully concurrent to the indeterminate sentence. (See People v. Felix (2000) 22 Cal.4th 651, 654-659; People v. Ottombrino (1982) 127 Cal.App.3d 574, 588, fn. 4; People v. McGahuey (1981) 121 Cal.App.3d 524, 531-532.) The trial court imposed sentence on count 3 as if it were subject to section 1170.1, subdivision (a) – one third of the middle term, consecutive to the improperly imposed extra eight-year sentence on count 2. In so doing, it erred. This case must be remanded to the trial court for the court to determine the appropriate full term from the triad on count 3 and then to decide whether the sentence on count 3 is to run fully concurrent or fully consecutive to the indeterminate sentence in count 2.
DISPOSITION
The case is remanded. The trial court is directed to conduct a sentencing hearing where it selects and imposes a sentence on count 3 and orders it to run either fully consecutive or fully concurrent to count 2. The court is further ordered to strike the eight-year sentence on count 2. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., GRIMES, J.