Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD189308, Melinda J. Lasater, Judge.
NARES, Acting P. J.
This action involves the sexual assault by James Monroe against two victims, L.Y. and S.T.
In March 2006 a jury found Monroe guilty of two counts of forcible oral copulation (counts 1 & 6; Pen. Code, § 288a, subd. (c)(2)); assault with intent to commit oral copulation (count 2; § 220, subd. (a)); two counts of possession of a firearm by a felon (counts 3 & 8; § 12021, subd. (a)(1)); kidnapping for rape (count 4; § 209, subd. (b)(1)); forcible rape (count 5; § 261, subd. (a)(2)); and assault with intent to commit rape (count 7; § 220, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
As to count 1, the jury further found that Monroe personally used a firearm (§ 12022.3, subd. (a)) and committed an offense described in section 667.61, subdivision (c) against more than one victim (§ 667.61, subds. (a), (c), (e)). The jury found Monroe personally used a firearm in the commission of counts 2, 4 and 7 (§ 12022.5, subd. (a)). On counts 5 and 6, the jury found Monroe personally used a firearm (§ 12022.3, subd. (a)), kidnapped the victim for the purpose of committing a sexual offense (§ 667.8, subd. (a)), which substantially increased the risk of harm to the victim (§ 667.61, subds. (a), (c), (d)), and committed an offense described in section 667.61, subdivision (c) against more than one victim (§ 667.61, subds. (a), (c), (e)).
Monroe admitted having five probation denial prior convictions (§ 1203, subd. (e)(4)), a prison prior conviction (§§ 667.5, subd. (b), 668), a serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one strike prior conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
In May 2006 the court sentenced Monroe to 109 years to life in prison, consisting of two terms of 25 years to life, doubled under the "Three Strikes" law on counts 1 and 5, plus four years for the firearm enhancement on count 5, and five years for the serious felony enhancement. Concurrent aggravated prison terms and enhancements were imposed for counts 2, 3, 6, 7 and 8. The court stayed the sentence on count 4 and struck the prison prior. The court imposed restitution and parole revocation fines in the amount of $10,000. Monroe was awarded 530 days of presentence credits, including 461 days actually served.
On appeal Monroe asserts (1) the court erred in finding that victim S.T. was an unavailable witness and allowing the jury to hear her preliminary hearing testimony, because the prosecution did not exercise due diligence in securing her attendance at trial; (2) under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), his constitutional right to confront witnesses was violated by admission of the 911 call S.T. made to report her rape by Monroe; (3) the court erred in instructing the jury under Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM Nos. 220 and 222, because those instructions precluded the jury from considering his defense that the absence of scientific evidence raised a reasonable doubt as to his guilt; and (4) his sentences on counts 2 and 7 should be stayed under section 654.
We conclude that the court erred in failing to stay the sentences on counts 2 and 7. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
1. L.Y.
In January 2005 L.Y. was working as a prostitute on El Cajon Boulevard in San Diego. L.Y. saw Monroe drive by her a couple of times in a burgundy Ford Expedition. He stopped his car in the middle lane and asked L.Y. if she wanted a ride. He said no one would see her if she hurried and got into the car. After Monroe denied being a cop, she got into his car. L.Y. told him her name was Sarah, and he told her his name was Yohan. L.Y. agreed to orally copulate and have sex with Monroe for $100.
Monroe drove to a residential area about 10 blocks away and parked his car on the street. L.Y. turned to her right to see if her passenger door was locked and felt something poking her in the side. Monroe had a gun pointed at her left rib cage and his penis was pulled out of his pants. Monroe told her, "Give me some head."
L.Y. screamed and asked Monroe, "[W]hat are you doing?" Monroe kept jabbing her with the gun and demanding that she "give [him] some head." L.Y. decided to cooperate with Monroe so he would not shoot her. She reached for a condom and Monroe told her not to use one because he did not like condoms. L.Y. performed oral sex on Monroe while he pointed the gun at her back, pushing down on her head with his other hand.
While L.Y. was orally copulating Monroe, he demanded that she "[g]ive [him] some pussy." L.Y. lied and told him she could not have sex because she had recently had an abortion. Once they were finished, Monroe put the gun in the pocket of the driver's side door. L.Y. began crying. Monroe apologized and dropped her off in the same vicinity where he had picked her up. As Monroe was dropping her off, he moved the gun to the back seat of his car. He also told L.Y. that next time he would give her money.
L.Y., who was hysterical at this point, looked for a police officer, and then called her boyfriend on a pay phone and asked him to pick her up. Meanwhile, a man saw L.Y. and asked her if she wanted to call the police. She told him "no" because she had a warrant out for her arrest. L.Y. asked, and the man gave her a ride home.
The next day, L.Y. called S.T. and some other prostitutes to warn them not to get into Monroe's car. A few weeks later, when she was working as a prostitute, she saw Monroe's car. A few weeks after that, she heard that Monroe had raped S.T. Thereafter, L.Y. contacted the police and told them what happened to her.
L.Y. admitted she had prior misdemeanor convictions for prostitution and loitering for prostitution. She also believed there was a warrant out for her arrest because she failed to obtain a court-ordered AIDS test.
S.T. was not present at trial and her preliminary hearing testimony was read to the jury. The propriety of the court declaring her an unavailable witness to allow that testimony to be read to the jury is discussed in more detail post.
On February 14, 2005, S.T. parked her car on Ohio Street and walked to El Cajon Boulevard to engage in prostitution. Monroe pulled up next to her in a burgundy Ford Expedition and told her to get in. S.T. ignored Monroe and kept walking down El Cajon Boulevard. Monroe pulled up next to her again, got out of the car and said, "My money's not good enough?" S.T. replied, "No. Leave me alone." S.T., who is also Black, explained that, for a variety of reasons, most prostitutes "don't date Black guys."
S.T. turned around and began walking back to her car. As she was walking down Ohio Street, she saw Monroe walking towards her, near where she had parked her car. S.T. turned around again and began walking back to El Cajon Boulevard. Monroe approached her from behind, pointed a gun in her back and said, "Don't move. Don't make any sounds or I'll shoot you." Monroe forced S.T. into the back seat of his car and drove to the parking lot of an office building on Camino Del Rio South. All the while, Monroe pointed his gun at her.
Monroe told S.T. to pull down her pants. She started to pull them down but Monroe became impatient and yanked them down. Monroe climbed into the back seat with her, removed his shirt, and told her to orally copulate him.
S.T. told Monroe that she needed to use the bathroom. However, he would not let her out of the car, so she urinated a little on the back seat. Monroe then let S.T. out of the car to urinate, while holding the hood of her jacket and pointing the gun at her. She then got back in the car, leaving the passenger door unlocked.
Monroe forced her to perform oral sex on him without a condom until he became erect. Monroe then climbed on top of her and told her, "I want some pussy." He then had intercourse with S.T. without a condom.
Monroe was interrupted when he saw Jeffrey Barber leave the office building and walk to his car. S.T. took the opportunity to flee from Monroe's car through the unlocked passenger door. Monroe grabbed her jacket, ripping it, and S.T. began to scream. She was able to break loose and ran towards Barber. She climbed over and then fell down a four-foot wall separating the level of the parking lot where Monroe was parked and the lower level where Barber was parked. She then ran to Barber's car.
When Barber reached his car, he heard someone screaming, "Help me, please. Don't leave. Stop. He's raping me. Gun. Help, help, help, help. Stop. Help." Barber looked to the right and saw S.T. fall to the asphalt from the wall. S.T. ran to Barber's car and got in the front passenger side. S.T. was completely nude except for a white puffy jacket. S.T. was hysterical. Barber got out of his car and saw a man next to a sports utility vehicle (SUV), with its driver's side front and rear doors open, reaching into the back seat. Barber grabbed S.T. by the jacket and they jumped over a retaining wall and ran west. Barber then saw the man with the SUV start his car and drive away. Barber and S.T. returned to Barber's car and he called 911.
San Diego Police Officer David Spitzer responded to the scene. S.T. told him that she was working as a prostitute when Monroe forced her into his car at gunpoint, forced her to orally copulate him, and then raped her for about five minutes until she escaped. Officer Spitzer took S.T. to the hospital for a sexual assault examination. Officer Gary Hill located what appeared to be a puddle of urine in the parking lot.
S.T. told police that she had made two "house calls" earlier that day. She also remembered L.Y. telling her to stay away from a man named Yohan who was possibly in the military and drove a Ford Expedition. She also admitted she was on probation for prostitution.
Both L.Y. and S.T. identified Monroe in photo lineups. Monroe's house was searched and it was determined he owned a burgundy 2000 Ford Expedition. He was arrested shortly thereafter.
B. Defense Case
Detective Thomas Joy described an incident on January 1, 2005, when he was working undercover to catch prostitutes. That evening, S.T. solicited sex to Detective Joy and was arrested.
Criminalist Sean Soriano examined the back seat of Monroe's car and found semen. Soriano did not test the back seat to determine if there was urine there.
Skin scrapings underneath S.T.'s fingernails were checked for a DNA analysis because S.T. had reported, "I had my nails in his back when he was on top of me." In the scrapings, criminalist Ian Fitch found semen cells as well as skin cells belonging to S.T. and another woman. There were not enough sperm cells to run a DNA analysis and identify the donor.
DISCUSSION
I. PROSECUTION'S DUE DILIGENCE IN LOCATING S.T.
Monroe asserts the court erred in declaring S.T. an unavailable witness and allowing her preliminary hearing testimony to be read to the jury, as the People did not make diligent efforts to secure her attendance at trial. This contention is unavailing.
A. Background
Prior to jury selection in this matter, the prosecutor informed the court that it had made ongoing efforts to secure the attendance of L.Y. and S.T. with subpoenas, despite the fact trial had been continued on several occasions. The prosecutor told the court the People had successfully made contact with L.Y., but not with S.T. Based upon the People's inability to secure the attendance of S.T. at trial, the court held a hearing to determine whether the People had exercised due diligence in locating S.T. and whether it would be appropriate to declare her unavailable, thus allowing the People to read her preliminary hearing testimony to the jury.
The court also held a hearing on the prosecution's due diligence in securing the attendance of L.Y. at trial. However, because L.Y. did appear and testify, we limit our discussion to the hearing on the prosecution's efforts to locate and secure the attendance of S.T.
On July 19, 2005, the July 22 trial date was continued to September 13, 2005, at Monroe's request. On July 26 a subpoena was issued to an address in Northridge, California, which S.T. had given to police when she reported her rape. Debbie Lauerman, a paralegal at the San Diego County District Attorney's office, had maintained telephone contact with S.T. Each time there was an impending trial date, Lauerman called S.T.'s cell phone and left a voicemail message. On each occasion, S.T. returned Lauerman's calls.
On September 1, 2005, the trial was continued until December 1, again at Monroe's request. On September 10 a second subpoena was issued for the Northridge address. On September 19 the first subpoena was returned marked "return to sender." On that day, a new subpoena was prepared, without specifying an address, and an investigative service request (ISR) was prepared, including two possible San Diego addresses: S.T.'s mother's address in El Cajon and a prior address for S.T. in San Diego. Sometime in September Lauerman lost contact with S.T. Lauerman called S.T.'s cell phone number, but it was no longer in service.
The new subpoena and ISR were assigned to Maria Garcia, a process server. Garcia attempted to serve S.T. at both addresses, but she was not at either address.
On November 18, the trial was continued to December 15, 2005. On December 3, a fourth subpoena was issued, with another ISR. On December 14, Lauerman contacted S.T.'s victim's advocate, who was not of assistance. The next day, trial was continued until February 28, 2006, at Monroe's request. On December 20, 2005, another ISR was prepared, instructing Garcia to run a computer check for S.T.'s address. On February 8, 2006, Garcia ran a computer check on S.T. through multiple government and law enforcement sites, and discovered a possible address in Tustin, California. She forwarded the information to her supervisor, who later determined the address was not valid.
At around that time, San Diego Police Detective Joe Yamane came into contact with S.T., who gave him her new cell phone number. On February 17 the number was forwarded to Garcia.
On February 22, San Diego Police Detective John Zimmerman was assigned to locate S.T. Over a period of nine days, Detective Zimmerman ran S.T.'s information through every available database and came across addresses in San Diego, Long Beach, Tustin, Northridge, and El Cajon. None were valid. Officer Zimmerman went to S.T.'s mother's house in El Cajon. She confirmed that S.T. was no longer in Tustin and confirmed her current phone number. S.T.'s mother stated that S.T. was living in Las Vegas, but she did not know where.
Detective Zimmerman called S.T.'s newest number and left messages for her. He also enlisted the help of L.Y., who also left messages for S.T. on her new number. Zimmerman ran the number through multiple databases and determined it was a valid number. He contacted local precincts and the vice squad to let them know he was looking for her. He posted an officer notification entry (ONS), which is a countrywide database informing officers that if they come into contact with S.T. they are to notify Detective Zimmerman. Detective Zimmerman continued to leave messages for S.T. and continued to run her rap sheet.
After hearing the above evidence and arguments of counsel, the court found the People had exercised sufficient diligence to secure S.T. as a witness. The court noted problems with witnesses often arise when there are multiple continuances because once a trial date is vacated, so is the subpoena directing attendance at the original trial date. The court also found the subpoenas went out in a timely fashion. The court rejected defense counsel's argument that the investigator should have gone to El Cajon Boulevard and "hit the streets," finding that notifying law enforcement agencies in the area to be on the lookout for S.T. was a more effective approach.
B. Applicable Legal Principles
The confrontation clauses of both the United States and California Constitutions guarantee criminal defendants the right to confront the witnesses against them. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) However, this right is not absolute. (Chambers v. Mississippi (1973) 410 U.S. 284, 295.) "An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made 'a good-faith effort' to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witness's prior recorded testimony if the prosecution has used 'reasonable diligence' (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness." (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) It is the burden of the proponent of the evidence to prove unavailability and due diligence. (People v. Cummings (1993) 4 Cal.4th 1233, 1296.)
We review de novo a court's finding of due diligence by the prosecution in its unsuccessful efforts to locate an absent witness to determine the validity of its subsequent declaration of unavailability warranting an exception to a defendant's constitutionally protected right of confrontation at trial. (Cromer, supra, 24 Cal.4th at p. 901.) "What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. [Citation.] The term is incapable of a mechanical definition. It has been said that the word 'diligence' connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citation.] The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponent's affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation]." (People v. Linder (1971) 5 Cal.3d 342, 346-347.)
C. Analysis
The People acted with due diligence in attempting to secure S.T.'s presence at trial. At the time of the preliminary hearing, S.T. was cooperative and testified for the People. She remained cooperative until September 2005, when she stopped contacts with Lauerman. After she disappeared, the prosecution made diligent efforts to locate her, contacting family, enlisting the help of local police, and even having L.Y. assist them. The People's attempt to make her available for trial was hampered by several continuances, most at Monroe's request. This evidence demonstrates the prosecution undertook timely and serious efforts to locate S.T. and diligently pursued all pertinent information. (See People v. Wilson (2005) 36 Cal.4th 309, 342 [due diligence shown by investigator's two-day effort to locate a witness for retrial by visiting the witness's last known address, attempting to locate his known associates, and checking police, county, and state records using the witness's aliases]; People v. Diaz (2002) 95 Cal.App.4th 695, 706-707 [due diligence shown by investigator's speaking with a witness's mother and brother, going to schools the witness had attended, asking patrol officers to look for the witness, and checking hospital, arrest and Department of Motor Vehicles records].)
In asserting that the prosecution did not exercise due diligence, Monroe relies on Cromer, supra,24 Cal.4th 889. Cromer is distinguishable. In Cromer, the prosecution was on notice of a witness's disappearance less than two weeks after the preliminary hearing and over two months before the original trial date. Although a subpoena was issued for the witness to attend trial, the prosecution made no effort to serve it on the witness. (Id. at p. 903.) The prosecution did not make any effort to serve a subsequently issued subpoena for the witness to appear on a rescheduled trial date. Even though the prosecution knew that the witness had disappeared from the neighborhood where she had lived months before the original trial date, it was not until shortly before the continued trial date that investigators made a few visits to her former residence. (Ibid.) Trial was continued again; it was not until after the case had been called for trial that the prosecution finally learned the witness was living with her mother in San Bernardino. (Ibid.) Despite the imminence of trial, the prosecution waited two full days to follow up on this information and obtain the relevant address. (Id. at pp. 903-904.) After jury selection had begun, an investigator went to the mother's residence, where he learned the mother would return the next day. Despite the fact the mother was the person most likely to know the witness's whereabouts, the investigator did not return to the residence and undertook no other efforts to contact the mother. (Id. at p. 904.) On the basis of this chronology, the court concluded that "serious efforts to locate [the witness] were unreasonably delayed, and investigation of promising information was unreasonably curtailed." (Ibid.)
Here, by contrast, as described in detail ante, the prosecution made adequate and diligent efforts to secure S.T.'s presence at trial.
II. CRAWFORD
Monroe asserts that the court erred in allowing admission of S.T.'s 911 call, as it violated his constitutional right to confront witnesses. We reject this contention.
A. Background
The People sought at trial to introduce the 911 call made by Barber and S.T. Monroe objected that this evidence was hearsay, and that it denied him his constitutional right to confront witnesses. The prosecutor responded the call was admissible as a spontaneous statement and was not testimonial. The court agreed with the People, played the tape for the jury and provided the jury with a transcript of the call.
The 911 call was initiated by Barber, who then turned his cell phone over to S.T. to speak with the police dispatcher. The dispatcher asked S.T. how the suspect tried to hurt her and whether she saw him use a gun. S.T. told the dispatcher that Monroe put a gun to her head. The dispatcher then got a supervisor to assist on the call. The supervisor confirmed that Monroe had raped S.T. and asked S.T. where the incident occurred. The supervisor asked for a description of the suspect, including the clothing he was wearing, and for a description of the vehicle he was driving. S.T. gave a description of Monroe, a description of his vehicle, the direction he went, told the operator he had a handgun, told the operator the nature of her injuries, and her location. When police arrived on the scene, the call was terminated.
B. Analysis
The Sixth Amendment's confrontation clause (U.S. Const., 6th Amend.) provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Historically, this clause had been held to preclude the admission of hearsay statements implicating the defendant in a criminal proceeding unless the prosecution demonstrated that the statements possessed "adequate indicia of reliability." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.) The United States Supreme Court in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) held that to meet that test evidence of an unavailable witness's statements either had to fall within a "firmly rooted hearsay exception" to the hearsay rule or bear "particularized guarantees of trustworthiness." (Id. at p. 66; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)
Some " 'firmly rooted' exceptions to the hearsay rule include (1) statements by a coconspirator during and in furtherance of the conspiracy, Bourjaily v. United States (1987) 483 U.S. 171, 183-[1]84; (2) excited utterances, White v. Illinois (1992) 502 U.S. 346, 356-357; and (3) statements made for purpose of obtaining medical treatment. (Ibid.)" (People v. Cervantes (2004) 118 Cal.App.4th 162, 172, fn. 4.)
The Supreme Court overruled Roberts in Crawford, supra,541 U.S. 36. "In overruling Roberts, Crawford held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendment's confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. 'Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." . . . To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' [Citation.]" (People v. Monterroso (2004) 34 Cal.4th 743, 763-764.)
Although the Crawford court declined to "spell out a comprehensive definition of 'testimonial' " (Crawford, supra, 541 U.S. at p. 68), "it did list '[v]arious formulations' of the class of testimonial statements: ' "[E]x parte in-court testimony or its functional equivalent─that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," [citation]; "extrajudicial statements . . . contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions," [citation]; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," [citation].' [Citation.]" (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401.)
Crawford's analysis left unresolved the issue of whether and in what instances a 991 call qualifies as a testimonial statement. The Supreme Court recently addressed this issue in Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (Davis).
Davis involved a 911 call from a domestic violence victim. After naming the defendant and briefly describing the assault, the caller-victim informed the operator the defendant had fled the scene in a car with another person. The operator told the victim to " '[s]top talking and answer my questions.' " (Davis, supra,126 S.Ct. at p. 2271.) The victim complied and provided information about the defendant, including his birthday, and described the circumstances of the assault. (Ibid.)
Davis then provided an analytical framework for determining whether a 911 call is testimonial: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra,126 S.Ct. at pp. 2273-2274; see also People v. Cage (2007) 40 Cal.4th 965, 984 ["statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial"].)
Applying these principles, the court in Davis noted "any reasonable listener would recognize" the victim faced an "ongoing emergency," and her 911 call was "plainly a call for help against a bona fide physical threat." (Davis, supra,126 S.Ct. at p. 2276 .) The court found the statements elicited by the 911 operator were necessary to resolve the ongoing emergency and not simply to learn what happened in the past. Contrasting the calm and structured atmosphere of a formal interview to the frantic answers the victim gave in an unsafe environment, the court concluded the circumstances of the exchange between the victim and the 911 operator objectively demonstrated "its primary purpose was to enable police assistance to meet an ongoing emergency. [The victim] simply was not acting as a witness; she was not testifying." (Id. at p. 2277.) The court held the admission of the victim's statements during the 911 call thus did not violate the defendant's confrontation rights. (Ibid.)
Similarly in this case, S.T.'s 911 call was not testimonial under Crawford and Davis. Her primary purpose in making the call was to secure police assistance to meet an ongoing emergency and get medical attention following her rape. As in Davis,the questions by the 911 dispatcher demonstrated that the operator's primary purpose was to obtain crucial information necessary to aid the police in meeting the emergency and not to establish or prove some past fact. The dispatcher's questions were directed towards determining S.T.'s location and the type of help she needed. S.T. gave a description of Monroe, his vehicle and the direction in which he went; told the operator he had a handgun; and described the nature of her injuries and her location. That information was necessary to provide the operator with information necessary to locate her, provide her with medical assistance, locate Monroe and inform officers of the threat he posed. Admission of S.T.'s statements in the 911 call did not violate defendant's confrontation rights under the Sixth Amendment.
III. CALCRIM NOS. 220 AND 222
Monroe asserts that the court erred in instructing the jury under CALCRIM Nos. 220 and 222, as they precluded the jury from considering his defense that the absence of scientific evidence raised a reasonable doubt as to his guilt. This contention is unavailing.
A. Background
The court instructed the jury under CALCRIM No. 220, which provides in part: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
The court also instructed the jury under CALCRIM No. 222, which provides in part: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom [or during a jury view]. 'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence."
B. Analysis
Two recent appellate decisions, including one by this court, have rejected the exact contention put forward by Monroe: that the above language in CALCRIM Nos. 220 and 222 prevented him from arguing that a lack of evidence raised a triable issue of fact as to his guilt. (People v. Westbrooks (2007) 151 Cal.App.4th 1500 (Westbrooks); People v. Flores (2007) 153 Cal.App.4th 1088 (Flores).)
In Westbrooks, we rejected the contention that CALCRIM Nos. 220 and 222 prohibited the jury from considering the lack of physical evidence implicating the defendant in the crime in determining his guilt. (Westbrooks, supra,151 Cal.App.4th at pp. 1505-1507.) This court held that the sentence Monroe focuses on in CALCRIM No. 220 "merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial." (Westbrooks,at p. 1509.) We concluded it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating the jury was precluded from considering any perceived lack of evidence in determining the accused's guilt. (Westbrooks,at p. 1510.)
Analyzing the language at issue in CALCRIM No. 220, read together with CALCRIM No. 222, the Fifth District recently confirmed in Flores that "[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial." (Flores, supra,153 Cal.App.4th at p. 1093.)
We agree with the analysis of Westbrooks and Flores, and also hold that because there is no reasonable likelihood that the jury understood CALCRIM Nos. 220 and 222 in the manner suggested by Monroe, the trial court did not err in giving those instructions to the jury.
IV. SENTENCES ON COUNTS 2 AND 7
Monroe asserts, and the People agree, that his sentences on counts 2 (assault with intent to oral copulation) and 7 (assault with intent to commit rape) should be stayed under section 654 because they arose from the same intent and purpose as the completed acts. We conclude that the court erred in failing to stay those sentences and direct the court, upon remand, to do so.
Section 654 provides in pertinent part: "(a) An act . . . 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." Generally, even though multiple convictions may be permitted for more than one offense arising out of the same act or course of conduct (§ 954), section 654 precludes multiple punishment for the same "act or omission." (Ibid.; People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
The test for determining whether a criminal course of conduct constitutes only a single criminal "act" for purposes of section 654 is as follows: " '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.' " (People v. Britt (2004) 32 Cal.4th at 944, 951-952.) The application of section 654, thus, "turns on the defendant's objective in violating" multiple statutory provisions. (Britt, at p. 952.) Where the commission of one offense is merely " 'a means toward the objective of the commission of the other,' " section 654 prohibits separate punishments for the two offenses. (Britt, at p. 953.)
Under this rule it is well settled that a defendant cannot be sentenced for assault with intent to commit a sex offense and the underlying sex offense because "the assault was the means by which the [sex offense] was attempted." (People v. Liakos (1982) 133 Cal.App.3d 721, 725.)
Here, Monroe was convicted as to the victim L.Y. of assault with intent to commit oral copulation and forcible oral copulation. He was convicted as to the victim S.T. of assault with intent to commit forcible rape and forcible rape. As the assaults were committed contemporaneously and with the object of committing the completed sex crimes, they should have been stayed under section 654.
DISPOSITION
The superior court is directed upon remand to stay the sentence on counts 2 and 7 pursuant to section 654 and forward an amended copy of the abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, J., McDONALD, J.