Opinion
D060018 Super. Ct. No. SWF029450
02-14-2012
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ALBERT NEELY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Riverside County, W. Charles Morgan, Judge. Affirmed in part, reversed in part, and remanded with directions.
A Riverside County jury convicted Charles Albert Neely, Jr., of one count of infliction of corporal injury on a cohabitant resulting in a traumatic condition (count 1:
Pen. Code, § 273.5, subd. (a), hereafter section 273.5(a)) and one count of rape with a foreign object (count 2: § 289, subd. (a), hereafter section 289(a)). As to count 1, the jury found true a sentence enhancement allegation that Neely personally inflicted great bodily injury on the victim under circumstances involving domestic violence in violation of section 12022.7, subdivision (e) (hereafter section 12022.7(e)). The court sentenced Neely to an aggregate state prison term of 15 years, consisting of the upper term of four years for his count 1 infliction of corporal punishment conviction; plus a consecutive five-year upper term term for the count 1 infliction of great bodily injury enhancement; plus the middle term of six years for his count 2 rape with a foreign object conviction, which the court, under section 667, ordered Neely to serve consecutively to the sentence imposed as to count 1.
Undesignated statutory references are to the Penal Code unless otherwise specified.
Neely appeals his convictions, contending the court prejudicially abused its discretion by admitting under Evidence Code sections 1109 and 1101, subdivision (b) (hereafter Evidence Code section 1101(b)) the testimony of his former fiancée, J.W., and of Salvatore Molinare regarding Neely's uncharged conduct that occurred after he allegedly committed the current offenses. Neely asserts their testimony was not relevant and its prejudicial effect outweighed its probative value within the meaning of Evidence Code section 352.
He also contends this matter must be remanded for resentencing because the court erred by imposing under section 667 a consecutive six-year term for his count 2 rape with a foreign object conviction. In supplemental briefing, the Attorney General concedes remand for resentencing is necessary, but argues the court had discretion to impose, and should have imposed, the count 2 consecutive sentence under section 667.6, subdivision (c) (hereafter section 667.6(c)).
We conclude Neely's contention that the court prejudicially abused its discretion by admitting the testimony of J.W. and Molinare regarding Neely's post-incident conduct is unavailing, and affirm Neely's convictions. However, we reverse the judgment insofar as it imposes under section 667 a consecutive middle term of six years for Neely's count 2 conviction, and remand the matter for resentencing with directions that the court exercise its discretion under section 667.6(c).
FACTUAL BACKGROUND
A. The People's Case
On July 4, 2008, Neely and his then-girlfriend J.M. (the victim), who lived together, hosted a barbeque at their residence in Winchester that was attended by Eric Hjort and Nicholas Kalivis. During the gathering, they were drinking beer and tequila and by 10:00 p.m. they were intoxicated. Neely was being loud and obnoxious.
At some point, the victim, Hjort, and Kalivis were in the kitchen where Kalivis and the victim danced together and then began kissing and fondling each other. The victim lifted up her shirt, flashed her breasts a few times, and flirted with Kalivis. Hjort testified he asked Neely, "How could this be happening?" Neely laughed. The victim put her breasts in Kalivis's face, and Kalivis licked her breasts and sucked her nipples. Kalivis testified that Neely was laughing and said, "See, Nick, I told you [she] liked you."
The victim also placed Kalivis's hand on her stomach and slid his hand down underneath her bikini bottom. Kalivis testified he caught himself and stopped because he thought what was happening was wrong, and he then went outside. Hjort asked Neely, "Are you okay with this?" Neely, who seemed to be enjoying it, nonchalantly said, "Yeah."
Later, inside the house, Kalivis tried to stay away from the victim, who was intoxicated and flirtatious, because he felt uncomfortable. The victim, however, walked over to Kalivis, who was playing with the dog on the floor. She fell when she tried to lie down next to him, but she was not hurt. Kalivis told Neely that the victim needed to be put to bed, but Neely said she was fine.
According to Kalivis, Neely eventually took the victim upstairs and put her to bed. When Neely returned downstairs without her, he, Hjort, and Kalivis went outside and continued drinking and smoking. Kalivis did not see the victim again that night. Neely, Kalivis, and Hjort went upstairs to play instruments, and Kalivis went home shortly thereafter, sometime between 12:30 and 2:00 a.m.
According to Hjort, he and Neely watched television downstairs for about 15 minutes after Kalivis left. Neely went upstairs for about 10 minutes and then told Hjort when he returned, "Come upstairs with me." Neely was very adamant. When they reached the top of the stairs and looked into the master bedroom, Hjort saw the victim on her hands and knees on the bed, awake and wearing a see-through nighty. Neely told Hjort, "You can have her," which meant he could have sex with her. When Hjort replied, "No, dude," Neely adamantly told him, "You can have her. Go for it. Go for it." Hjort told Neely he did not want to, but Neely said, "You can do it. You can do it." Eventually Hjort said, "Okay." The victim did not appear to be injured. Hjort attempted to have sex with her, but was unable to get an erection. Referring to Hjort by Kalivis's nickname, the victim kept saying, "Nick, fuck me." Neely came back into the bedroom and encouraged Hjort to keep trying. Eventually Hjort stopped trying, got dressed, and went downstairs. The only people in the residence were Neely, Hjort, and the victim.
Hjort returned to the room to get his glasses, and he saw the victim in bed, uninjured, and asleep under the covers. Hjort testified he slept in his car, which was parked outside Neely's house, and he drove home at around 6:30 a.m.
At around 11:00 a.m., Neely called Hjort and asked him whether he had tried to have sex with his girlfriend. Hjort replied, "Of course. You were there. You wanted me to do it." Hjort testified that Neely "was acting like 'I never said that to you. What are you talking about?' " Hjort was concerned because Neely was acting as if nothing happened. Neely asked Hjort, "Did you hit her?" Hjort replied, "No," and asked Neely what was going on. Neely told him, "[S]omeone beat the shit out of her."
Later that day, in the afternoon, Neely again called Hjort and asked him to come to the hospital, but Hjort did not go there because Neely was saying he (Hjort) "must have done it" and he feared for his life. When Hjort mentioned to Neely what had happened between Kalivis and the victim in the kitchen in the evening, Neely denied it happened.
That same afternoon Neely went looking for Kalivis, who lived across the street but was not home, and spoke with Kalivis's wife, Rachel. Neely indicated he was having trouble waking up his girlfriend and wanted to know if Kalivis knew of anything that happened the night before. Rachel told Neely to call 911 and later went to Neely and the victim's bedroom, where she saw the victim lying face down on the floor with her hair over her face, snoring or grunting. She was not awake and did not respond when Rachel tried to wake her.
When paramedics David Platz and Bryan Courtney responded to the scene, they found the victim in the upstairs master bedroom lying face down on the floor. Neely told Platz that she had been drinking the previous night and had been up all night vomiting, and he (Neely) put her on the floor. The victim was breathing but unconscious and nonresponsive; a small amount of vomit was next to her mouth. Once inside the ambulance, the paramedics found bruising down the left side of the victim's body that went down below her abdomen to just above her pubic area. She had bruising around her neck in the shape of a handprint, which indicated she had been assaulted, as well as bruising or "battle signs" around her eyes and behind her ears that indicated she had a basic skull fracture. Neely told Platz and Courtney she had fallen down the stairs the previous night, he found her at the base of the stairs, and he assisted her back upstairs to the bedroom.
The victim was transported to Inland Valley Hospital in Wildomar. Bret Ginther, an emergency physician at the hospital, treated the victim. She was in a critical traumatic condition: severely neurologically compromised and unresponsive. She had bruising and swelling around her eyes, lower forehead, lower lip, and neck, as well as in the area between her genitalia and bellybutton. The area between the genitalia and anus was black and blue. A CT scan revealed a large bleeding and life-threatening epidural hematoma inside the victim's head, which indicated she had been struck hard enough on the right side of her head to cause bleeding inside her head.
Heather Alex, a registered emergency room and trauma specialty nurse at the hospital, performed a sexual assault exam on the victim, who was unconscious. Alex testified that that victim "had multiple bruises; swelling; raccoon eyes, which is swelling around the orbits of the eyes indicating head injury; battle sign scars behind the ear, indicating skull fractures and injuries. She was on a life support machine that was doing the breathing for her." The victim had a drain that was drawing fluid from the traumatic injury to her brain. She had multiple bruises from the neck down, "strangulation petechiae across both cheeks and [her] face, from the jaw line up to her eyes." Alex also testified that the victim's "whole vulva, which is her labia majora, labia minora, clitoris, urethra, vaginal opening, rectum, perineum, were all severely bruised," which indicated she had been sexually assaulted in her rectum "most likely" with a foreign object.
James Merrill, an investigator with the Riverside County Sheriff's Department, interviewed Neely during the evening hours of that same day, July 5, 2008. The recorded interview, which was transcribed, was played for the jury. According to Neely, on the day of the incident he, Hjort, the victim, and Kalivis all drank, and Kalivis and the victim danced in a "promiscuous" manner in the kitchen. He did not feel threatened. He claimed the victim went upstairs and the next thing he knew Kalivis, who was outside with Neely, pointed through the glass door and the victim was at the bottom of the stairs inside the house, face down. Neely went back inside and asked her if she was okay. She mumbled and Neely helped her walk back up the stairs and put her to bed. He did not notice any injuries from the fall.
After he went back downstairs, Neely invited Hjort to spend the night in the spare bedroom, and then he (Neely) and Hjort went upstairs. Neely indicated he said goodnight to Hjort and went to bed with the victim. Both he and Hjort were intoxicated, and he assumed Hjort went to the spare bedroom. Neely said he passed out and indicated he did not wake up until around 11:15 a.m. to the victim's snoring. He sat up and saw her on the floor, on his side of the bed. She was spread out on her back with her arms and legs straight out. Her lips were fat, her face was red and purple, and her eyes were black. He could not wake her. When he could not find Hjort in the house, he called him and indicated the victim was passed out on the floor, he could not wake her, and it looked like "she's been beat[en] up." Neely said he asked Hjort, "What the hell did you try to do last night? Did you try and [fuck] her?" Hjort answered, "Well, yeah," and Neely said, "Are you out of your [fucking] mind? What the hell's wrong with you?" Neely told Hjort he was going to call an ambulance and 911. Neely said that Hjort later told him he had slept in his car in front of the house. Neely claimed Hjort had made comments on prior occasions about the victim being "hot" and that he wished he had someone like her.
Neely denied he had sex with the victim that night. He indicated he thought Hjort took advantage of her. He denied he offered her up to anyone.
During the interview, Merrill saw on Neely's arm what appeared to be recent scratches that "had not scabbed over yet." Neely did not know how he got those marks.
Cori Kopitzke, a forensic technician with the Riverside County Sheriff's Department, testified she took pictures of Neely at the Southwest Station. Neely had what appeared to be a possible bruise on his left leg, an injury on the back of one of his legs, and a possible injury to his right groin.
1. Evidence of Neely's post-incident conduct
As discussed more fully, post, the court admitted under Evidence Code sections 1109, 1101(b), and 352 the testimony of his former fiancée, J.W., and Molinare, who played in a band with Neely in 2010, regarding Neely's uncharged conduct that occurred after the commission of the current offenses. According to J.W., Neely once told one of his friends he could have sex with J.W. On another occasion, Neely knocked her off a barstool, hurting her neck when she fell backwards and hit a window. She also testified Neely sometimes was "rougher" than she wanted him to be when they engaged in anal sex, and he did not stop when she asked him to.
Molinare testified that in early 2009 Neely offered to let him have sex with J.W., but Molinare declined. On another occasion, when J.W. was intoxicated and passed out face down on a couch, Neely and Molinare pulled her pants down and "playfully" put a "pretend penis" close to her "backside" without penetrating her.
B. The Defense Case
The defense called no witnesses on Neely's behalf and rested without presenting any evidence.
DISCUSSION
I
ADMISSION OF EVIDENCE OF UNCHARGED CONDUCT
(TESTIMONY OF J.W. AND MOLINARE)
Neely challenges his convictions, contending the court prejudicially abused its discretion by admitting under Evidence Code sections 1109 and 1101(b) the testimony of his former fiancée, J.W., and Molinare regarding Neely's uncharged conduct that occurred after he allegedly committed the current offenses. He asserts their testimony was not relevant and its prejudicial effect outweighed its probative value within the meaning of Evidence Code section 352. This contention is unavailing.
A. Background
1. People's in limine request to present evidence of uncharged conduct
Prior to trial, the prosecutor filed a trial brief in which she sought leave to introduce, under Evidence Code sections 1109 and 1101(b), evidence of Neely's post-incident conduct with his then-fiancée, J.W. During the hearing on the prosecution's request, defense counsel generally objected to the admission of the proffered evidence and expressed concern that J.W. was not present during the incident in this case, she may have lied to the prosecutor, and she was being vindictive. Defense counsel also expressed concern that the new evidence would involve a "mini trial within the trial" and "would be more prejudicial than probative."
a. Ruling
The court found the probative value of the proffered evidence "exceed[ed]" its prejudicial effect, and ruled the testimony of J.W. and Molinare was admissible under Evidence Code sections 1109 and 1101(b) (discussed, post). Asserting that "[Evidence Code section] 1101(b) is somewhat not as strong in my opinion," the court found that subdivision "does take out mistake or accident potentially."
2. J.W.'s and Molinare's testimony
J.W. testified on behalf of the prosecution that she was Neely's former fiancée. They began dating in December 2008, about five months after the July 2008 incident that is the subject of this case. On one occasion, she and Neely had been drinking with a friend named Jacob. She testified she had been "doing shots" of vodka and and Neely had been drinking Jack Daniels. After she went to bed, with the bedroom door left open, J.W. heard Neely offer to let Jacob have sex with her. Specifically, she heard Neely tell Jacob, "Why don't you go in and have sex with [her]," and, "Dude, just go in there and fuck her." Jacob declined and left.
J.W. testified that on another occasion while at a friend's house Neely knocked her off a barstool after "play slapping" her. She fell back and hit the window sill. J.W.'s neck hurt, and she was upset and cried. Neely told her she was overreacting and being dramatic. When she and Neely talked about the incident the next day, Neely denied anything had happened and told her she was being dramatic.
On other occasions J.W. and Neely engaged in anal sex, and sometimes Neely was rougher than she wanted him to be. When J.W. told him that, he did not stop. Neely would grab J.W.'s throat and "pull [her] into him."
Molinare testified that, sometime in early 2009, Neely offered to have J.W. come over and have sex with Molinare. Molinare stated he was "a little shocked" and declined the offer. On another occasion, when Neely, J.W., and Molinare were drinking and J.W. had passed out face down on a couch, Neely placed a "pretend penis" on her "backside," and he and Molinare pulled her pants down and "put it closer" but did not penetrate her with it. According to Molinare, he and Neely did this playfully and Molinare took pictures of what they were doing.
B. Applicable Legal Principles
Evidence Code section 1109 generally authorizes the admission of evidence of a defendant's commission of other acts of domestic violence in a criminal action in which the defendant is charged with an offense involving domestic violence. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Specifically, subdivision (a)(1) of Evidence Code section 1109 (hereafter Evidence Code section 1109(a)(1)) provides (with exceptions not applicable here):
"[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
The term "domestic violence" is broadly defined for the purposes of Evidence Code section 1109 as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b), hereafter section 13700(b); Evid. Code, § 1109, subd. (d)(3).) The term "abuse" is defined for purposes of Evidence Code section 1109 as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (§ 13700, subd. (a), hereafter section 13700(a).)
Evidence Code section 1109 creates an exception to the general rule codified in Evidence Code section 1101, subdivision (a) (discussed, post) precluding admission of uncharged misconduct to show that the defendant had a propensity to commit crimes. (Evid. Code, § 1109(a)(1); see also People v. Johnson (2000) 77 Cal.App.4th 410, 416-417.)
The trial court has discretion to exclude evidence of other acts of domestic violence if the probative value is substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, §§ 1109(a)(1), 352, subd. (a).) In assessing whether evidence is unduly prejudicial within the meaning of Evidence Code section 352, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues . . . ." (People v. Crew (2003) 31 Cal.4th 822, 842.)
2. Evidence Code section 1101(b)
Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or bad acts is inadmissible when it is offered to show that a defendant had the criminal disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1101(b) "clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, Evidence Code section 1101(b) provides that nothing in that section "prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
For evidence of uncharged misconduct to be admissible under Evidence Code section 1101(b) to prove such facts as motive, intent, identity, or common design or plan, the charged offenses and uncharged misconduct must be "sufficiently similar to support a rational inference" of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "The least degree of similarity . . . is required in order to prove intent." (Ewoldt, supra, 7 Cal.4th at p. 402.) The uncharged misconduct need only be "sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same [or similar] intent in each instance." ' " (Ibid.; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [defendant's uncharged conduct of possessing sexually explicit photographs of young males ranging from prepubescent to young adult admissible to show intent to sexually molest a young boy].)
1. Standards of review
"The admissibility of evidence of domestic violence is subject to the sound discretion of the trial court, [and the exercise of that discretion] will not be disturbed on appeal absent a showing of an abuse of discretion." (People v. Poplar, supra, 70 Cal.App.4th at p. 1138.)
We also review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion (People v. Lewis (2001) 25 Cal.4th 610, 637) and will not reverse an evidentiary ruling unless the appellant demonstrates a manifest abuse of that discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
C. Analysis
The court did not abuse its discretion by admitting under Evidence Code section 1109 J.W.'s testimony regarding the bar stool and rough anal sex incidents. For purposes of that section, this case is a "criminal action in which [Neely] is accused of an offense involving domestic violence." (Evid. Code, § 1109(a)(1).) Neely was charged in this case with inflicting corporal injury on a cohabitant resulting in a traumatic condition in violation of section 273.5(a), and personally inflicting great bodily injury on the victim under circumstances involving domestic violence in violation of section 12022.7(e)).
J.W.'s testimony was admissible under Evidence Code section 1109(a)(1) because it constituted "evidence of [Neely's] commission of other domestic violence" within the meaning of that subdivision and it was not inadmissible under Evidence Code section 352. Specifically, J.W.'s testimony that Neely hurt her by knocking her off a barstool while "play slapping" her, and then told her she was "overreacting" and "being dramatic" after she cried and became upset, qualifies as evidence of domestic violence within the meaning of section 13700 and Evidence Code section 1109, subdivisions (a)(1) and (d)(3), because (1) it is evidence showing that Neely intentionally or recklessly caused or attempted to cause bodily injury to J.W., or placed her in reasonable apprehension of imminent serious bodily injury to herself, within the meaning of section 13700(a); and (2) it thus constitutes evidence of domestic violence within the meaning of section 13700(b) because J.W. was Neely's fiancée, they lived together, and thus they were cohabitants. J.W.'s testimony that on other occasions Neely forced her to engage in rough anal sex even when she protested and told him to stop also constitutes admissible propensity evidence of domestic violence for similar reasons.
J.W.'s testimony was not inadmissible under Evidence Code section 352 because, as the prosecutor argued in her trial brief, it is evidence "that this is [Neely's modus operandi] with women." In this regard, the registered nurse who conducted the sexual assault examination of the victim in the current case testified that the victim's whole vulva, including her rectum, was severely bruised. J.W.'s testimony was highly probative to show, as Evidence Code section 1109(a)(1) permits, that Neely had a propensity to commit domestic violence at the time of the commission of the current offenses at issue in this case, and the probative value of J.W.'s testimony was not substantially outweighed by the probability its admission would necessitate undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Regarding Neely's general objection at trial (to which he alludes on appeal) that admission of J.W.'s testimony would involve a distracting and time-consuming "mini trial," the record shows J.W.'s testimony was relatively brief, consuming only 20 pages of the reporter's transcript.
We also conclude the court did not abuse its discretion by admitting under Evidence Code section 1101(b) Molinare's testimony that he and Neely pulled down J.W.'s pants after she drank too much and passed out face down on a couch, and then playfully placed what Molinare referred to as a "pretend penis" near her rectum without penetrating her with it. In this regard, the evidence established the victim in the current case had been sexually assaulted in her rectum while she was intoxicated, "most likely" with a foreign object according to the registered nurse who conducted the sexual assault examination of the victim. Molinare's testimony is highly probative with respect to the issue of the identity of the victim's assailant in this case, specifically whether Neely raped her with a foreign object in violation of section 289(a) as charged in count 2. Given the high probative value of Molinare's testimony regarding Neely's use of a foreign object to "playact" sodomizing another intoxicated and unconscious woman, we conclude the testimony was not inadmissible under Evidence Code section 352.
Assuming, without deciding, that the court erred by admitting testimony by J.W. and Molinare that Neely offered to let Molinare and another man have sex with J.W., we conclude any such error was harmless. Error in the admission of evidence following an exercise of discretion under Evidence Code section 352 is tested for prejudice under the Watson harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Here, any prejudice to Neely from the assumed error was minimal given Hjort's testimony in this case that Neely adamantly insisted that he have sex with the victim when she was intoxicated, before she was assaulted. Furthermore, the evidence of Neely's guilt is strong and the court gave the jury a limiting instruction on the use of the evidence showing Neely committed uncharged acts of domestic violence. Although Neely, in his statement to Sheriff's Investigator Merrill, essentially accused Hjort of assaulting the victim during the night in question and denied urging Kalivis to have sex with her that night, Hjort testified he left and slept in his car after he, at Neely's insistence, unsuccessfully attempted to have sex with the victim, who was uninjured when he left. It is undisputed that, after Kalivis left and prior to Hjort's departure, only Hjort, Neely, and the victim remained in the residence. Merrill testified that, during the interview on July 5, 2008, he saw on Neely's arm what appeared to be recent scratches that "had not scabbed over yet." Neely told Merrill he did not know what happened to his arm. The court instructed the jury that if it concluded (from the testimony of J.W. and Molinare) that Neely committed uncharged acts of domestic violence, "that conclusion is only one factor to consider along with all the other evidence," and "[i]t is not sufficient by itself to prove [Neely] is guilty of the charged offense involving domestic violence. The People must still prove each charge and allegation beyond a reasonable doubt."
We conclude Neely has failed to meet his burden of demonstrating it is reasonably probable he would have obtained a more favorable result in this matter in the absence of the assumed evidentiary error. (See Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we also conclude Neely's contention that the court prejudicially abused its discretion by admitting the testimony of J.W. and Molinare regarding Neely's post-incident conduct is unavailing.
II
CLAIM OF SENTENCING ERROR (COUNT 2)
Neely also contends the judgment should be reversed and the matter remanded for resentencing because the court erred by imposing under section 667 a consecutive six-year term for his count 2 conviction of rape with a foreign object (§ 289(a)). He asserts the matter should be remanded for sentencing because the court "made a specific finding that the offenses occurred on separate occasions and were independent of each other," and, thus, "the appropriate sentence on count [2] should be one-third of the [six-year] midterm or two years."
The Attorney General concedes remand for resentencing is necessary, arguing the court had discretion under section 667.6(c) to impose, and should have imposed, a full and consecutive eight-year upper term for his count 2 section 289(a) conviction, as the prosecutor argued in his sentencing memorandum. We reverse the judgment insofar as it imposes a consecutive term for Neely's count 2 conviction and remand the matter for resentencing with directions that the court exercise its discretion under section 667.6(c).
Section 289(a)(1)(A) provides: "Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years." (Italics added.)
A. Background
1. Verdicts
Neely was convicted of one count of infliction of corporal injury on a cohabitant resulting in a traumatic condition (count 1: § 273.5(a)) and one count of rape with a foreign object (count 2: § 289(a)), and suffered a true finding on the count 1 enhancement allegation that he personally inflicted great bodily injury on the victim under circumstances involving domestic violence (§ 12022.7(e)).
2. Probation officer's report
Noting that the CrimeTime criminal sentence calculation report recommended that Neely be sentenced under section 667.6, subdivision (d) (hereafter section 667.6(d)) for his count 2 rape with a foreign object conviction, the probation officer's report disagreed with the CrimeTime report recommendation, recommending instead that Neely be sentenced under section 1170.1, not section 667.6, for his count 2 conviction. Specifically, the report stated:
"This officer's understanding is that the full, separate, and consecutive sentences allowed by Section 667.6 are reserved for multiple sex offenses (which are specified in subdivision (e)). If Count [1] fell under subdivision (e), sentencing under Section 667.6 would be appropriate (and recommended). However, as Count [1] does not, it is recommended Count [2] be punished under Section 1170.1 (not Section 667.6)."
The probation officer's report also recommended that Neely be sentenced to a total prison term of 11 years, consisting of the four-year upper term for his count 1 section 273.5(a) conviction, plus the five-year upper term for the count 1 section 12022.7(e) enhancement, plus a consecutive two-year term (one-third of the six-year middle term) under section 1170.1 for his count 2 section 289(a) conviction.
3. The People's sentencing memorandum
In the People's sentencing memorandum, the prosecutor disagreed with the probation officer's sentencing recommendation and requested that the court punish Neely for his count 2 conviction by imposing a full and consecutive six-year upper term for that section 289(a) offense, for an aggregate prison term of 17 years.
4. Sentence
At the sentencing hearing, the court declined to follow either of the recommendations made by the probation officer and the prosecutor and instead sentenced Neely to an aggregate prison term of 15 years, consisting of the upper term of four years for his count 1 conviction, plus a consecutive five-year upper term for the count 1 enhancement, plus the middle term of six years for his count 2 rape with a foreign object conviction, which the court, under section 667, ordered Neely to serve consecutively to the sentence imposed as to count 1. Finding that Neely's count 2 rape offense was "completely independent" of his count 1 offense for purposes of section 654, which generally prohibits multiple punishment for separate offenses committed during an indivisible course of conduct (see People v. Hicks (1993) 6 Cal.4th 784, 791 (Hicks)), the court stated:
"I shall select Count 1 as the principal count. [P]ursuant to [California Rules of Court] rule [4.421(a)], that this involved great violence, keeping in mind that a spousal abuse only needs a corporal injury that is something that is reflected from the assault. It could be a bruise, it could be a scratch. So this, in its spectrum, is way over
the top. So pursuant to that rule, I shall select the upper term of [four] years in state prison.
"The [section] 12022.7[(a) allegation] having been found true, which is inescapable if convicted because it is great bodily injury on the victim, and because it is great bodily injury pursuant to that same rule of court, I shall select the upper term of [five] years in state prison.
"As to Count 2, I shall select to sentence [Neely], pursuant to [section 667] rather than [section] 1170.1 -- and it is not [section] 654. All of the evidence that . . . came out of the trial establishes that this woman was inebriated, if not completely drunk. They had a relationship such that . . . she would have expected some intimate contact between the two of them, maybe not that night, but they slept in the same bed. And so the assault pursuant to Count 2, I believe, is completely independent of the assault that occurred in the Count 1 situation. For that reason, . . . I don't believe it's [section] 654, and I'm selecting the preferred midterm [of six] years in state prison; and it shall run consecutive to the term in Count 1, for a total of 15 years in state prison" (Italics added.)
B. Applicable Legal Principles
Witkin explains that sections 667.6(c) and 667.6(d) provide for the imposition of full and consecutive sentences for a number of major sex offenses that are commonly referred to as "violent sex crimes." (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 383, p. 510.)
Section 667.6(c) provides that, "[i]n lieu of the term provided in [s]ection 1170.1," a trial court "may" impose a discretionary "full, separate, and consecutive term" for "each violation of an offense specified in subdivision (e) [of that section] if the crimes involve the same victim on the same occasion." (Italics added; People v. Goodliffe (2009) 177 Cal.App.4th 723, 727 (Goodliffe); see also 3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment, § 383, pp. 510-511.) Section 667.6(c) also provides that "[a] term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)."
Section 667.6(c) states in its entirety: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Italics added.)
Section 667.6(c) creates an exception to section 654's prohibition against multiple punishment for separate offenses committed during an indivisible course of conduct. (Hicks, supra, 6 Cal.4th at p. 792.) Thus, section 667.6(c), if applicable, authorizes multiple punishment for separate criminal acts committed during an indivisible course of conduct. (Hicks, at p. 793.)
In contrast to section 667.6(c), which (as noted) authorizes the discretionary imposition of full upper-term and consecutive sentencing for each sex offense enumerated in subdivision (e) of that section where the defendant's offenses involve the same victim on the same occasion, section 667.6(d) mandates a trial court to impose "[a] full, separate, and consecutive term . . . for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6(d), italics added; Goodliffe, supra, 177 Cal.App.4th at p. 727, fn. 10; see also 3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment, § 383, pp. 510-511.) Unlike the discretionary sentencing scheme set forth in section 667.6(c), the mandatory sentencing scheme set forth in section 667.6(d) "applies only when a defendant stands convicted of more than one offense specified in subdivision (e)." (Goodliffe, supra, 177 Cal.App.4th at p. 727, fn. 10, citing People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5, 595-596.)
Section 667.6(d) states in its entirety: "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. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. [¶] The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Italics added.)
C. Analysis
We begin our analysis by noting that the mandatory consecutive sentencing provisions of section 667.6(d) do not apply in this case, as the prosecutor argued in his sentencing memorandum and as Neely points out on appeal, because they only apply when a defendant stands convicted of more than one offense specified in subdivision (e) of that section (People v. Jones, supra, 46 Cal.3d at pp. 594, fn. 5, 595-596), and, here, only Neely's count 2 conviction is a sex offense enumerated in subdivision (e): rape with a foreign object (§ 289(a)). (See § 667.6, subd. (e)(8).) His count 1 conviction of inflicting corporal injury on a cohabitant resulting in a traumatic condition (§ 273.5(a)) is not one of the enumerated sex offenses specified in that subdivision.
Section 667.6, subdivision (e) provides: "(e) This section shall apply to the following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of paragraph (1), (4), or (5) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289. [¶] (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of Section 220[; and] [¶] (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision." (Italics added.)
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As one of Neely's two convictions in this matter—count 2—was for a sex offense (§ 289(a)) specified in subdivision (e) of section 667.6, discretionary full and consecutive sentencing as to that count would be authorized under section 667.6(c) were the trial court to find that both of Neely's offenses involved "the same victim on the same occasion." (§ 667.6(c).)
However, the record of the sentencing proceeding shows the court did not exercise its discretion under section 667.6(c). Rather, as to count 2, it imposed a consecutive prison term under section 667, which has no application here as it governs sentencing in cases that involve repeat offenders. Furthermore, it appears the court believed, incorrectly, that it was required to exercise discretion under section 654, which generally prohibits multiple punishment for separate offenses committed during an indivisible course of conduct (Hicks, supra, 6 Cal.4th at p. 791), rather than under section 667.6(c). Specifically, the record shows the court, in sentencing Neely to a consecutive six-year midterm for his count 2 conviction, found this offense "completely independent of" Neely's count 1 offense, and, "[f]or that reason, . . . I don't believe it's [section] 654 . . . ." The court did not mention section 667.6(c), which creates an exception to section 654's prohibition against multiple punishment for separate offenses committed during an indivisible course of conduct. (Hicks, supra, 6 Cal.4th at p. 792.)
We conclude the court should have exercised its discretion under section 667.6(c), as the People requested in their sentencing memorandum, and failure to do so was error. Accordingly, the portion of the judgment sentencing Neely to a consecutive six-year midterm for his count 2 conviction must be reversed, and the matter must be remanded for resentencing with directions that the court exercise its discretion under section 667.6(c).
DISPOSITION
The portion of the judgment sentencing Neely to a consecutive six-year midterm for his count 2 conviction (§ 289(a)) is reversed. In all other respects the judgment is affirmed. The matter is remanded for resentencing with directions that the trial court exercise its discretion under section 667.6(c).
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NARES, J.
WE CONCUR:
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McCONNELL, P. J.
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O'ROURKE, J.