Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed with modifications. Los Angeles County Super. Ct. No. GA061185
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
TURNER, P. J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Alfredo G. Manzano, appeals from his convictions for: kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)); two counts of sexual penetration by a foreign object (§ 289, subd. (a)(1)); assault with intent to commit rape or sexual penetration by a foreign object (§ 220); second degree robbery (§ 211); and making criminal threats. (§ 422.) The jury also found that the kidnapping to commit rape, assault with intent to commit rape, the second degree robbery, and the criminal threats involved a threat of great bodily harm. (Cal. Rules of Court, rule 4.421(a)(1).) The jurors further found that the assault with intent to commit rape involved other acts disclosing a high degree of cruelty. (Cal. Rules of Court, rule 4.421 (a)(1).) Defendant argues the trial court improperly admitted deoxyribonucleic acid evidence; failed to instruct the jury on the lesser included offense of simple assault and unanimity; and incorrectly imposed a full consecutive sentence pursuant to section 667.6, subdivision (d). The Attorney General argues that additional state court construction penalties and state court surcharges should have been imposed. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 10:30 or 11a.m. on April 15, 2005, the victim was walking home. The victim left Bartlett Street and walked along the train tracks. Defendant began walking toward the victim. Defendant opened his arms blocking the victim’s path. Defendant then went around the victim. When the victim turned to look at defendant, he hit her in the head with his fist and grabbed her by her hair. Defendant then pulled the victim’s blouse off. The victim believed defendant was going to rape her. The victim began screaming and fighting back. Defendant and the victim fell to the ground. Defendant removed the victim’s pants and underwear. Defendant started choking the victim because she would not be quiet. The victim continued to scream for help. However, no one responded. Defendant told the victim to be quiet or he would kill her. Defendant said he had a gun. The victim stopped screaming because she could not breathe. Defendant spoke broken English. The victim told him in Spanish to stop.
Defendant picked the victim up by her hair. Defendant forced the victim to walk back in the direction she had come. The victim looked around but saw no one. Defendant forced the victim down into a ditch. Defendant continued to hit the victim in the head. Defendant sat on the victim’s stomach and told her to give him her jewelry. The victim gave defendant her “Mom” ring and a silver ring with a turquoise heart stone, beige watch, and black plastic bracelet. Thereafter, defendant grabbed the victim by her hair and dragged her on her stomach behind a tree. Defendant sat down with his back against the tree. Defendant laid the victim across his lap. Defendant continued to hit the victim and told her to be quiet. Defendant tore off the victim’s bra. The victim begged defendant to let her go. Defendant tried to kiss the victim on the mouth. When the victim moved, defendant bit her tongue. Defendant again tried to kiss the victim and bit her lip. The victim was afraid defendant would bite her tongue off. Defendant was touching the victim’s breasts and kissing them. The victim did nothing because she was afraid defendant would bite her. Defendant also put his fingers inside the victim’s vagina. Defendant inserted his fingers into the victim’s vagina three or four times. Defendant then opened the victim’s legs. The victim feared that defendant would rape her. The victim did not scream because she was afraid that defendant would knock her out.
Defendant got on top of the victim, forced her legs open, while he had his hand on his penis. Defendant did not have sex with the victim. In an effort to distract him, the victim asked defendant whether he had children. Defendant told the victim that he felt sorry for her because he was “taking it out” on her. The victim asked defendant why he was taking it out on her. Defendant said that all women lie. Also defendant said she was lucky because she was the fifth or sixth one and the only one that was going to make it out alive. The victim began to cry. Defendant asked why she was crying. The victim asked defendant to please let her go because of her children. Defendant got upset and prepared to hit her. The victim told him to stop and asked him questions. This calmed defendant at times. At other times it made him angry. Defendant told the victim he would let her go. However, defendant then told the victim he would not let her go because she would tell others about the sexual assault. The victim told defendant she would not tell anybody. Defendant asked the victim to go home with him. The victim said she would go with him. Defendant had told the victim several times that he would kill her. The victim believed him. By telling defendant that she would go home with him, the victim believed they would have to go out into the street and she could get away. The victim told defendant she could not walk down the street naked. Defendant told the victim to stay seated on a dirt stoop. Defendant told the victim he would come right back. The victim watched defendant until such time as she believed she could run the opposite way and get away.
The victim ran to the first street she came upon. The victim ran to the door of the first house and asked for help. Leah Dinsay was watching television at the time. Ms. Dinsay’s daughter yelled for her mother to come to the living room. Ms. Dinsay saw the victim at the door. The victim was naked and covered with a “lot of blood.” The victim hysterically said: “‘Let me in, somebody is going to kill me. I was raped.’” Ms. Dinsay was scared. Ms. Dinsay told the victim: “‘Just stay there. I can’t let you in. I’m so scared. I don’t know you. So I don’t want you to get in.’” Ms. Dinsay’s daughter called the police. The victim told Ms. Dinsay: “‘He’s going to kill me. He’s going to kill me.’” Ms. Dinsay threw a blanket to the victim. The victim feared that defendant would return. The victim remained on the front porch until the police arrived. The victim’s eye was blackened. A blood vessel had caused her eye to be red. The victim’s hair was in knots. She had bruises from head to toe as well as scrapes. The victim’s tongue and lip had been bitten. The victim gave a description of defendant to the police. The victim estimated that an hour and one-half had passed from the time she was initially attacked, to the time she was taken away by ambulance. During that time, defendant would strike the victim then stop to talk with her and touch her. Defendant would then hit the victim again. When the victim talked with defendant, he would temporarily stop his attacks.
The victim was taken to the hospital by paramedics. Patsy Simms, a forensic nurse examiner and director of the sexual assault response team, examined the victim at approximately 1:15 pm on April 15, 2005. Ms. Simms observed the victim to be badly battered. The victim had bruises on her face, mouth, and eyes as well as multiple abrasions on her face, torso, and extremities. The victim, who was in the state of shock, was cooperative but had a flat affect. The victim was wearing only one white sock. After completing a physical assessment, Ms. Simms took photographs of the victim’s injuries. The victim indicated that her vaginal area was very tender and sore. The victim had multiple bruising around the breast area and abrasions across her abdomen and back. The victim had scratches on her arms and legs, knees, neck, and elbows. The victim’s hands were scratched and swollen. The victim had injuries to her right upper ear, including swelling. The victim had contusions and abrasions to her right eye. Her lower lip was bruised and swollen. The victim also had a cut on her tongue. Ms. Simms collected swabs from the victim’s mouth and breasts. Swabs were collected from the victim’s external genitalia. Ms. Simms did not perform an internal vaginal examination because the victim was so tender and swollen and unwilling to go further because of pain. Ms. Simms also collected debris that fell off the victim’s body onto the sheet and fingernail scrapings. A white sock, white blanket, and blue blanket were also collected. Ms. Simms collected a blood reference sample from the victim. Injuries from digital penetration are not always found.
Los Angeles County Sheriff’s Deputy Alan Liu arrived at the railroad tracks area on April 15, 2005. Deputy Liu was in a black and white patrol car. He had been given a description of the suspect as a male Hispanic wearing a white jersey. The suspect was described as being in his 20’s. Deputy Liu saw defendant sitting on a tree stump approximately 150 yards from the railroad tracks. Defendant was wearing a black jersey. Deputy Liu drove up to where defendant was seated. Deputy Liu testified, “I stopped my patrol car and asked him if he saw a male Hispanic wearing a white jersey running by.” Defendant then stared at Deputy Liu. Deputy Liu then alighted from his patrol car. Defendant began cursing Deputy Liu, repeatedly saying: “‘Fuck you, Chino. Fuck you, puto.” Deputy Liu approached defendant. Defendant was ordered in English and Spanish to show his hands. Defendant was also ordered to raise his hands. Defendant did not comply. Deputy Liu drew his gun. Deputy Liu then began to approach defendant. Defendant stood up and walked towards Deputy Liu. As he was walking, defendant walked with his hands toward his side. Deputy Liu patted defendant down for weapons. Deputy Liu found a rock and a glass shard in defendant’s pockets. Deputy Liu also found two rings and a ladies’ wristwatch in defendant’s pockets. Deputy Liu noticed that defendant’s black jersey was reversible to white on the opposite side. Defendants pants were unbuttoned, his zipper was down and he wore no underwear. Defendant had scratches on his face and arms.
Deputy Liu also collected the victim’s underwear, pants, shoes, bra, and tank top from the location. When defendant was photographed at the sheriff’s station, he had scratches on his face, his knuckles were “scuffed up,” and his knees and right elbow were scraped. Defendant had a scratch on the right side of his face that was oozing a clear fluid and blood. Deputy Luis Salazar booked defendant’s black and white jersey into evidence. Deputy Salazar also booked the victim’s clothing and jewelry into evidence that Deputy Liu had collected. The victim later identified the jeans, pink tank top, purple panties, and bra as the clothing she had worn on April 15, 2005. She also identified defendant’s jersey as the one he had worn during the assault.
On April 15, 2005, Deputy David Butler went to the area of the railroad tracks between Rosemead and Walnut Grove Streets in San Gabriel. Deputy Butler located several personal items at that location, including a purple plastic lighter, sunglasses, a hair clip, an eyebrow pencil, lipstick, a white sock, a wrapped condom, a blue hairbrush, a cross with clear stones, and a hoop earring. Deputy Butler noticed that the soil in the area where the personal items were found was disturbed, as though something had been dragged through it. When Deputy Butler later showed the victim the items recovered, she identified them as her property. The victim returned to the location of the railroad tracks on April 16, 2005. The victim found her bracelet behind a tree there where defendant had sat on her stomach and took her jewelry. The victim showed the bracelet to a sheriff’s deputy. Prior to defendant accosting her, the victim had a brush in her hand and a clip in her hair. She wore sunglasses and had a compact and lipstick in her pockets.
On April 18, 2005, Detective Ronald Trujillo went to the victim’s home. Detective Trujillo showed the victim a photographic lineup. The victim selected defendant’s photograph, indicating that he was the individual that attacked her. Detective Trujillo also showed the victim the items found in defendant’s possession. The victim identified the watch and the two rings as those taken from her. The victim told Detective Trujillo that defendant got on top of her when they were behind a tree in the ditch. On April 25, 2005, the victim went with Detective Trujillo to the place where the crimes occurred. The victim pointed out where she was first attacked and where the sexual assault took place. Detective Trujillo photographed the various sites identified by the victim.
The rape kit, sock, and blanket related to Ms. Simms’s examination of the victim were collected by Deputy Kirk Kardella. Deputy Kardella booked those items into evidence. Steve Renteria, a forensic scientist with the Los Angeles County Sheriff’s Department and the deoxyribonucleic acid technical leader of the lab, collected samples from defendant on April 15, 2005. Mr. Renteria took finger nail scrapings and swabbings of fingernails, fingers, and palms of defendant’s left and right hands. Mr. Renteria also did a presumptive test for blood by adding a chemical to the swabbings. The swabbings from defendant’s left hand fingernails gave a positive presumptive result for the presence of blood. Mr. Renteria also examined a sexual assault kit collected from the victim. The kit contained swabs from the victim’s fingernails, mouth, external genitalia, and breasts. A urine sample, blood reference sample, and a medical report outlining the collection of these items were also part of the kit. Mr. Renteria also examined defendant’s black and white jersey, which he wore on the day of his arrest. A presumptive blood test of the shirt identified several blood stains on the front of the shirt. Three stains were removed for further testing.
Each of these samples was placed into smaller tubes for deoxyribonucleic acid extraction. Thereafter, the samples were quantified to determine how much deoxyribonucleic acid they were able to extract. Once the deoxyribonucleic acid was quantified, a procedure known as amplification was completed. A known amount of deoxyribonucleic acid was taken from each sample for a process known as polymerases chain reaction. This laboratory procedure allows the scientist to make millions of copies of the deoxyribonucleic acid of the sections the scientist plans to type. The process of typing involves placing the amplified deoxyribonucleic acid into an instrument called a genetic analyzer. Each sample is subjected to short tandem repeats to form a deoxyribonucleic acid profile. In this case Mr. Renteria looked at 13 different genetic markers. Each individual has a different number of repeats of the markers. The amelogin marker indicates the sex of the individual from whom the deoxyribonucleic acid came. All body cells from an individual, including blood, saliva, semen, vaginal secretion, have the same type of deoxyribonucleic acid if it came from the same person.
In this case, all of the samples contained deoxyribonucleic acid. Samples from the victim’s fingernail, mouth, and breast swabs indicated a mixture of deoxyribonucleic acid from at least two individuals. Both the victim and defendant were possible donors to these mixtures. The deoxyribonucleic acid profiles from defendant’s right-hand fingernail and palm swabs and the left-hand palm swab were consistent with a mixture of at least two individuals. The victim and defendant were both possible donors. Swabs from defendant’s left-hand fingernail and finger and right-hand finger resulted in only partial profiles, but were consistent with originating from defendant. Deoxyribonucleic acid testing on the red stain on defendant’s jersey indicated it came from a female. The victim was possibly a contributor to that stain.
After the statistical calculation of the deoxyribonucleic acid analysis, Mr. Renteria concluded that there was only 1 individual in 41.3 trillion persons who would be included as a possible donor to the sample of the deoxyribonucleic acid found on the victim’s left breast. In addition, analysis of the victim’s deoxyribonucleic acid found in defendant’s left-hand palm swab sample revealed that only 1 in 8.9 billion unrelated individuals could have contributed. Mr. Renteria concluded: “Regarding the sexual assault kit samples, the fingernail swabs, A and B, the mouth swab, and the right and left breast swabs, they were all consistent with being a mixture of two individuals. And both [the victim] and [defendant] are included as possible donors to those mixtures.”
III. DISCUSSION
A. Admissibility of Deoxyribonucleic Acid Evidence
1. overview
Defendant argues the prosecution failed to demonstrate that the deoxyribonucleic acid testing procedures utilized in this case eliminated cross-contamination between known and unknown samples as required by prong 3 of the rules set forth in People v. Kelly (1976) 17 Cal.3d 24, 30. As a result, defendant argues the trial court improperly ruled that the prosecution met its burden and the admission of the deoxyribonucleic acid evidence constitutes reversible error. We disagree.
2. Factual and procedural background
Defendant filed an in limine motion pursuant to People v. Kelly, supra, 17 Cal.3d at page 30 to preclude the admission of deoxyribonucleic acid testing results. Defendant argued, “[C]orrect scientific procedures were not utilized by the laboratory in performing the [deoxyribonucleic acid] testing in this case.” Defendant also asserted, “The [deoxyribonucleic acid] extraction of evidence samples was not performed at a separate time and/or space from the [deoxyribonucleic acid] extraction of reference samples.” The motion concluded, “The [deoxyribonucleic acid] testing procedure used in this case was an intentional and blatant disregard of accepted scientific practice.” (Original underscore.) At a hearing on the motion, defense counsel argued, “[T]he type of contamination that we’re talking about in this case is a type of contamination that would result in a false inclusion.” The trial court granted defendant’s request for an Evidence Code section 402 hearing limited to that issue.
Mr. Renteria testified that he processed the evidence collected in the rape kit. On September 9, 2005, Mr. Renteria took a portion of the samples in the rape kit as well as part of the blood reference collected from the victim. These portions were placed in closed test tubes, stored in a box made for storage, and kept them in the evidence refrigerator. On September 12 and 13, 2005, Mr. Renteria processed defendant’s samples of swabs and scrapings and his white and black jersey shirt. These samples were placed in test tubes. Mr. Renteria did the deoxyribonucleic acid extraction of some of those samples at 2:30 p.m. on September 13, 2005. The extraction of defendant’s samples were processed at a different time than those of the victim. Only one test tube was opened at a given time. The tubes were opened with a tube opener to insure Mr. Renteria’s gloved hands did not touch the surface of the tube. The tube was then closed before processing the next tube. The racks of the victim’s samples were kept away from defendant’s. No tubes are opened at the same time. Mr. Renteria also used “pipette” tips in each tube to collect any contaminant. One of these tips is used for every liquid transfer. Mr. Renteria also uses a reagent blank tube in the extraction process. Everything that is done to the samples is also done to the reagent blank. If deoxyribonucleic acid is found in the reagent blank, it would suggest contamination.
After the deoxyribonucleic acid was extracted, Mr. Renteria quantified each sample. Mr. Renteria also uses a quality control sample identified only by number. At the end of the analysis, they determine the source of that sample and compare the known types to that sample. If a mixture is detected, he would know that some sort of contamination occurred. The reagent blank control was negative for deoxyribonucleic acid in this case. The quality control sample did not contain a mixture indicating contamination. The victim’s samples were never in the same storage rack as defendant’s samples and never occupied the same space in front of Mr. Renteria during the processing in this case. Samples were preserved for the defense in this case. The protocols utilized by the Los Angeles County Sheriff’s Department for extracting deoxyribonucleic acid has never been questioned during audits or accreditation.
Marc Scott Taylor, a forensic scientist for Technical Associates, Incorporated, who worked with deoxyribonucleic acid, testified for the defense. Mr. Taylor testified that the extraction process used in this case, wherein the scientist extracted reference and evidence samples during the same point in time, could result in a false inclusion of an individual as a deoxyribonucleic acid contributor. In addition, Mr. Taylor objected to the fact that, in his opinion, the testing of each set of samples was not performed in a separate place or at a separate time. Mr. Taylor did not participate in the testing in this case, had never been audited by the Deoxyribonucleic Acid Advisory Board, and never participated in an audit. Mr. Renteria further testified that the Los Angeles County Sheriff’s laboratory complies with all standards of the deoxyribonucleic acid Advisory Board.
The trial court ruled: “I don’t see how I can exclude this testimony, [defense counsel]. It’s - - it’s accepted. There’s a longstanding, although disputed, protocol in place. There’s possibilities of contamination as with any other procedures. That’s all - - that’s the best we have. [¶] In terms of reliability, it - - that’s up to the jury. It’s - - there’s nothing I believe - - I believe the People have met their burden of going forward on a preliminary basis of reliability, and generally accepted scientific principals, whether under [Evidence Code section] 402, 405 or the Kelley-Frye test. I think the latter is probably the weakest position here. It’s fairly accepted now. [¶] The issue that defense is raising regarding whether or not proper scientific procedures were used in this case is I think for the jury. It’s - - it does go to the weight, I believe. It’s where I was believing possibly the right answer here is. [¶] I don’t see how it’s excludible. It’s one opinion of an expert that’s hotly disputed. It’s not - - it’s not the other protocols here are not mandatory. I understand that these labs don’t even have to be accredited or certified, so it’s an area that everybody can shout over as to what the proper way to do it is. [¶] When it all comes down to it, I think it is for the jury to decide these issues and weigh the evidence, but it’s not up to the court to exclude it entirely, which is what you are asking. I think it’s too much. [¶] So I will find that that evidence is admissible and not excludible on the basis of reliability and any Kelley-Frye grounds, and the People have proven a preliminary fact for admissibility.”
3. The deoxyribonucleic acid evidence could properly be admitted
In Kelly, our California Supreme Court set forth the following “general principles of admissibility” for opinion testimony based on new scientific techniques: “The parties agree generally that admissibility of expert testimony based upon the application of new scientific technique traditionally involves a two-step process . . . (1) [T]he reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. [Citations.] Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. [Citations.]” (People v. Kelly, supra, 17 Cal.3d at p. 30, original italics; see also People v. Diaz (1992) 3 Cal.4th 495, 526.) The Supreme Court has held: “The Kelly test’s third prong . . . inquires into the matter of whether the procedures actually utilized in the case were in compliance with that [scientifically accepted] methodology and technique, as generally accepted by the scientific community. [Citation.]” (People v. Venegas (1998) 18 Cal.4th 47, 78, original italics; see also People v. Soto (1999) 21 Cal.4th 512, 519.) The Venegas Court further held: “The Kelly third-prong does not, of course, cover all derelictions in following the prescribed scientific procedures. Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony. Such readily apparent missteps involve ‘the degree of professionalism’ with which otherwise scientifically accepted methodologies are applied in a given case, and so amount only to ‘[c]areless testing affect[ing] the weight of the evidence and not its admissibility. [Citations.]” (People v. Venegas, supra, 18 Cal.4th at p. 81, citing People v. Farmer (1989) 47 Cal.3d 888, 913, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn.6; People v. Cooper (1991) 53 Cal.3d 771, 814.)
In People v. Cook (2007) 40 Cal.4th 1334, 1346, the Supreme Court revisited this issue: “[D]efendant’s observations that [the scientist] did not document all his work, took some inaccurate notes, did not conduct ‘blind’ testing, deviated from the lab protocol in some respects, and failed to respond to a coworker’s doubts about the accuracy of a test of blood on a carpet are all matters going to weight, not admissibility. [Citations.]” We review the trial court’s Kelly third-prong determination on the use of correct scientific procedures with deference. (People v. Venegas, supra, 18 Cal.4th at p. 91; People v. Brown (2001) 91 Cal.App.4th 623, 647 [“Where the prosecution shows that the correct procedures were followed, criticisms of the techniques go to the weight of the evidence, not its admissibility”]; People v. Wright (1998) 62 Cal.App.4th 31, 42.)
Here, as in the case of People v. Henderson (2003) 107 Cal.App.4th 769, 787, the trial court heard Mr. Renteria testify regarding the protocols used in testing the deoxyribonucleic acid samples as well as Mr. Taylor’s testimony. The trial court found the deoxyribonucleic acid evidence was reliable and thus admissible. The trial court ruled the jury must decide the propriety issue and weight of the evidence. In Henderson, the court held, “Although the trial court did not make an explicit finding as to whether [the scientist] applied the correct procedures in performing . . . analysis of the mixed [deoxyribonucleic acid] sample, we affirm the court’s implied finding, which was evident in the court’s approval of the reliability and general scientific acceptance of the procedures.” (People v. Henderson, supra, 107 Cal.App.4th at p. 787, italics added, footnote omitted; see also People v. Venegas, supra, 18 Cal.4th at p. 91; People v. Reeves (2001) 91 Cal.App.4th 14, 47.) Mr. Renteria explained the procedures and protocol utilized in testing the various samples in this case. During the extrication process, each sealed tube was opened separately by an instrument that prevented contamination. It was then resealed before any other tubes were opened. The victim’s samples were kept in separate racks away from those of defendant. Quality control and reagent blank samples were utilized to insure no cross-contamination occurred. As set forth above, Mr. Renteria explained these procedures again when he testified before the jury. He described how the samples were obtained and how the extraction and quantification processes were performed. Mr. Renteria also explained how the deoxyribonucleic acid was amplified and typed. By way of a demonstrative chart, Mr. Renteria explained how the mixed samples identified both male and female deoxyribonucleic acid that matched that of the victim and defendant. This testimony provided substantial evidence that the deoxyribonucleic acid samples were tested in accordance with standard procedures. As a result, the trial court did not abuse its discretion in impliedly finding the correct scientific procedures were utilized in this case. (See People v. Henderson, supra, 107 Cal.App.4th at p. 788; People v. Reeves, supra, 91 Cal.App.4th at pp. 42-49.)
4. harmless error
In any event, any error in admitting the deoxyribonucleic acid evidence was harmless. There was other overwhelming evidence of defendant’s guilt. The victim positively identified defendant from a photographic lineup. Defendant was found in the same location where the crimes occurred shortly after the incident. Defendant matched the description given by the victim and wore the same clothing she described. Defendant had apparently reversed his jersey to avoid detection. When confronted by Deputy Liu, defendant began to swear and refused to follow instructions. Defendant complied with Deputy Lius’s instructions only when confronted at gunpoint. Defendant had the victim’s rings and watch in his pocket at the time he was apprehended. Defendant had scratches on his face and body that were consistent with the victim’s resistance to the assault. Defendant argues that the forcible digital penetration counts were unsupported by evidence other than the deoxyribonucleic acid. As set forth above, we disagree. It is not reasonably probable that a more favorable verdict would have been reached absent the admission of the deoxyribonucleic acid evidence. (See People v. Cook, supra, 40 Cal.4th at p. 1348; People v. Venegas, supra, 18 Cal.4th at p. 93; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Instructions
1. Lesser included offense of simple assault
a. overview
At trial, defendant requested a lesser included instruction be given on the offense of simple assault. Defendant argues that the trial court improperly refused to instruct the jury on the lesser included offense of simple assault. In refusing to instruct on simple assault, the trial court noted: “[U]nder the evidence in this case, and I’m - - I’ll just indicate my tentative ruling here is to deny the defense requests for all three lessers, on the grounds that there’s - - in my opinion, having heard the evidence, the standard for giving lessers does not apply; namely, that there is, I feel, no evidence that the defendant would be guilty only of these lessers, and I think that’s the - - an appropriate standard. [¶] . . . [T]he victim was - - there was a fight in the dirt area and then the removal of her clothing from the dirt area, assaults and battery in the dirt area, and pulling of hair, choking, et cetera, and then movement to the darker ditch area by the trees and bushes and whatnot and down further in by the tree, kind of two or three locations where all these happened, depending on what happened at what particular time.”
b. the trial court was not obliged to instruct on the lesser offense of simple assault
A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684.) Our Supreme Court has held: “[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. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, original italics, and People v. Carr (1972) 8 Cal.3d 287, 294; see also People v. Birks (1998) 19 Cal.4th 108, 118.)
Section 240 provides, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” At the time the offenses occurred in this case, section 220 provided in pertinent part: “ (a) . . . [A]ny person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison.” Simple assault is a lesser included offense of assault with intent to commit a sex offense. However, the evidence in this case does not support an instruction on simple assault. Defendant concedes, “There was ample evidence supporting instruction on assault to commit a sex crime.” However, he argues the jury could disbelieve the victim and could base a simple assault on his “incessant punching” to make her keep quiet. We disagree. The punching constituted only a portion of the assault, which was carried out for the purpose of committing sex acts. Defendant grabbed the victim by her hair, repeatedly punched her, tore off her clothing, and dragged her to a secluded location. Thereafter, defendant touched the victims breasts with his hands and mouth, bit her tongue and lips, penetrated her vagina with his fingers on three or four occasions, and forced her legs apart while holding his penis. The trial court could properly refuse to instruct the jury on simple assault.
c. prejudice
In any event, any error in failing to instruct the jury on simple assault was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Watson, supra, 46 Cal.2d at p. 836.) As set forth above, the overwhelming evidence of defendant’s guilt of assault with intent to commit a felony makes it improbable that he would have had a more favorable verdict if the instruction had been given.
2. Unanimity
a. overview
Defendant argues that the trial court was obliged to give a unanimity instruction regarding the two counts of digital penetration. Defendant asserts the jurors may have been unable to agree upon the conduct which constituted the two acts. We disagree.
b. no unanimity instruction was required
As set forth above, a trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma, supra, 39 Cal.4th at p. 715; People v. Ervin (2000) 22 Cal.4th 48, 90.) CALCRIM No. 3500 provides: “The defendant is charged with [sexual penetration by foreign object in Counts 2 and 3]. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.” However, the California Supreme Court has also made clear that: “‘“A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” [Citations.] . . .’” (People v. Champion (1995) 9 Cal.4th 879, 932, quoting People v. Beardslee (1991) 53 Cal.3d 68, 93; see also People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Crandell (1988) 46 Cal.3d 833, 875.) In Champion, one of the defendants raped a victim twice. After raping her in a bathroom, the defendant left but returned shortly thereafter to rape her again. The Supreme Court held, “[O]nce a juror determined that defendant Ross committed one of the two rapes, it is inconceivable that the juror would not also conclude that Ross also committed the second rape of the same victim.” (People v. Champion, supra, 9 Cal.4th at p. 932.)
In this case, counts 2 and 3 alleged that defendant sexually penetrated the victim with a foreign object. The victim testified that defendant inserted his fingers in her vagina three or four times. On cross-examination, the victim testified defendant inserted his fingers “at least” three times. During closing argument, the prosecutor explained: “Now ladies and gentlemen, [the victim] testified that the defendant placed his fingers in her vagina three times, maybe four times. The defendant is only charged in two counts, ladies and gentlemen. The People have charged a first time and a last time. Victims, including [the victim], don’t usually count how many times they are being violated. [¶] We know that it was more than one time. She told you it was at least three times, maybe four times. He’s charged conservatively with the first time and the last time. That’s why you have two counts of sexual penetration.” These acts were essentially identical in nature, occurred on the same day and within a period of an hour and one-half. Any juror who believed defendant committed one penetration would have inexorably believed that he also committed the other. As a result, the trial court did not have a duty to give a unanimity instruction. (People v. Champion, supra, 9 Cal.4th at p. 932; People v. Beardslee, supra, 53 Cal.3d at p. 93.)
c. harmless error
Nonetheless, any error in failing to give a unanimity instruction was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson, supra, 46 Cal.2d at p. 836.) Our Supreme Court has held: “In determining whether there was prejudice [from instructional error], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’” (People v. Wims, supra, 10 Cal.4th at p. 315, quoting People v. Guiton (1993) 4 Cal.4th 1116, 1130.) The jury was instructed with CALCRIM No. 3550, which states in pertinent part: “Your verdict on each count and any special findings must be unanimous. This means that, to return a verdict, all of you must agree to it.” Defense counsel argued: “[T]he law requires that you examine each charge individually, each special allegation individually. [¶] It’s not a situation where you find one charge to be true and it’s a - - you know, your business is done. You need to go through each charge individually, each special allegation individually, and determine whether the evidence warrants a verdict of guilty or true or not guilty and not true.” Defense counsel also argued that there was no physical exam to corroborate the victim’s testimony concerning the digital sexual assaults. The verdict forms for counts 2 and 3 reflect the jurors’ careful consideration of the evidence, as demonstrated by their findings that the allegations of actual great bodily harm or threats of same or high degree of cruelty were not true. Any error in failing to give the unanimity instruction was harmless beyond a reasonable doubt.
1. Overview
Citing Blakely v. Washington (2004) 542 U.S. 296, defendant argues: “The trial court imposed a term consecutive sentence, pursuant to section 667.6, for violations of section 289, subdivision (a)(1)” as to count 3, sexual penetration with a foreign object. Defendant concedes that section 667.6 provides for the imposition of full, separate, and consecutive terms for each subordinate term for certain enumerated sex offenses. However, he argues that he was entitled to a jury determination on this sentencing issue.
2. Sentencing hearing
At the time the sentence in this case was imposed, the trial court noted: “There’s then the issue of whether counts 3 and 4 should be sentenced full term consecutively under [section] 667.6[, subdivision] (d). The defense first contends that consecutive sentencing in general is for the jury. I disagree. [¶] The Cunningham decision did not address this issue, so it would seem that the Black case back in 2005 is still the law as to consecutive sentencing and should control. [¶] . . . [¶] Since Cunningham, the Supreme Court has granted review on that issue. The case of People vs. Groves, 2003, 107, Cal.App.4th, 1227 at 1230 to 1232 supports the proposition that consec[utive] sentencing in [section] 667.6[, subdivision] (d) situations is not one that increases the statutory maximum which would allow the court to make the necessary factual findings.”
3. Consecutive sentences could properly be imposed
Preliminarily, the California Supreme Court has ruled that the United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856, 866] does not apply in the context of consecutive sentencing. (People v. Black (2007) 41 Cal.4th 799, 823; People v. Sullivan (2007) 151 Cal.App.4th 524, 567-568.) In addition, the trial court properly found that section 667.6, subdivision (d) mandates the imposition of “full, separate, and consecutive terms” for each violation of sex offenses enumerated in that statute, including sexual penetration. As a result, the full consecutive term of six years was properly imposed as to count 3 in this case.
Section 667.6 provides in part: “(d) A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] (e) . . . [¶] . . . . (8) Sexual penetration, in violation of subdivision (a) . . .”
D. Additional Penalties and Surcharges
Following our request for further briefing, the Attorney General argues that the trial court should have imposed a $40 state court surcharge pursuant to section 1465.7, subdivision (a) as to the $200 section 290.3 sex offense fine. Also, the trial court should have imposed a $2 state court surcharge as to the section 1202.5 crime prevention fine. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) Further, defendant must pay a $60 state court construction penalty as to the $200 section 290.3 sex offense fine. Moreover, the trial court should have imposed a $3 state court construction penalty as to the $10 section 1202.5 crime prevention fine. (People v. McCoy, supra, 156 Cal.App.4th at pp. __-__; People v. Taylor, supra, 118 Cal.App.4th at pp. 458-459.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
Penal Code Section 1465.7, subdivision (a) provides, “A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464.”
IV. DISPOSITION
The judgment is modified to impose: a $40 state surcharge pursuant to Penal Code section 1465.7, subdivision (a) as to the section 290.3 fine; a $2 state surcharge pursuant to Penal Code section 1465.7, subdivision (a) as to the section 1202.5 crime prevention fund fine; a $60 state court construction penalty as to the section 290.3 fine pursuant to Government Code section 70372, subdivision (a); and a $3 state court construction penalty as to the section 1202.5 fine pursuant to Government Code section 70372, subdivision (a). Upon remittitur issuance, the superior court clerk shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J. KRIEGLER, J.