Opinion
A154985
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. SERGIO OSEJO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC080717)
This appeal presents one issue: whether the trial court violated Penal Code section 654 when it declined to stay a prison term imposed on a conviction for violating section 288, subdivision (a). It did not, so we affirm.
Further statutory citations are to the Penal Code. --------
BACKGROUND
This case was previously before us on appeal from Sergio Osejo's conviction of committing multiple sexual offenses against 13-year-old Eliana Doe and raping A.M. (See People v. Osejo (May 31, 2017, A143092) [nonpub. opn.] (Osejo I).) We reversed the judgment in part and remanded the case to the trial court. On remand, Osejo was sentenced on six remaining counts of violating section 288, subdivision (a). He now contends the court should have stayed the sentence imposed on count three because kissing Eliana, the act on which it was based, was merely a means to accomplish the act of vaginal intercourse punished in count two as a separate violation of section 288.
The relevant facts are described in Osejo I. Osejo picked Eliana up in his car and they parked about a block from her house. "Osejo told Eliana to get in the back seat, started kissing her and pulled down her pants and underwear. Eliana pulled her underpants back up, but Osejo pulled them down again and penetrated her vagina with his penis. After about a minute Eliana told him it was starting to hurt and he withdrew. They both pulled their pants up and talked. [¶] After a while, they resumed kissing and Osejo asked Eliana if she wanted to try having intercourse again. Eliana agreed. They had intercourse until Osejo withdrew. " (Osejo I, supra, A143092 at p. 3.)
Osejo was originally sentenced to an aggregate term of 33 years, including a concurrent three-year term on count three (kissing) and a consecutive two-year term on count two (intercourse). (Osejo I, supra, A143092 at p. 8.) Those counts were unaffected by the first appeal. On remand Osejo was sentenced to an aggregate term of 18 years on six counts, including consecutive two-year terms on counts two and three. The court rejected Osejo's objection that imposing prison terms for counts two and three violated section 654 because "the actions, and none of them, were committed as a means of committing any other, none of the actions facilitated the commission of any other, and none of the actions were incidental to any other."
Osejo filed this timely appeal.
DISCUSSION
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
Osejo contends the court was required by section 654 to stay the term on count three instead of imposing it consecutive to the two-year term imposed on count two. Not so.
It has long been held that section 654 does not preclude punishment for each sex crime committed during a continuous attack, even where the acts were closely connected in time and where the defendant repeated identical sex offenses in sequence. (People v. Harrison (1989) 48 Cal.3d 321, 336 (Harrison); People v. Perez (1979) 23 Cal.3d 545, 552-554 (Perez).) "In light of the statute's purpose, no importance [is] placed on the instrumentality used or the body cavity penetrated." (Harrison, supra, at pp. 337.) The test, rather, is whether a sex act directly facilitates or is merely incidental to the commission of a defined lewd act. (Perez, supra, at pp. 553-554.) When " '[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other and none was incidental' to any other," section 654 does not apply. (Harrison, supra, at p. 336.)
Relying on People v. Madera (1991) 231 Cal.App.3d 845 (Madera), Osejo argues section 654 applied to counts two and three because kissing Eliana "was his means of effecting the intercourse, not an end in itself." His argument is unpersuasive. The court in Madera upheld consecutive terms for undefined lewd acts, i.e., sexual acts not constituting separate crimes under other sections, in which the defendant rubbed his minor victim's penis, as distinct from his defined lewd sex acts of oral copulation and sodomy. (Id. at pp. 851, 855.) The court distinguished acts, such as "applying lubricant to the area to be copulated," that "would have directly facilitated the commission of the defined act." (Id. at p. 855.) In contrast, "section 654 does not apply where . . . the undefined act is 'preparatory' only in the general sense that it may be intended to sexually arouse either the perpetrator or the victim." (Ibid, italics added.)
Moreover, "the probability that an undefined sex act may occur in the same transaction as a defined sex act does not render it 'incidental,' nor does it insulate the undefined sex act from separate punishment. The distinction for punishment purposes between undefined acts designed generally to arouse and those intended directly to facilitate defined sex acts recognizes the relatively greater culpability of the defendant who commits the former. The reason for the distinction is readily evident. The undefined act is a separate insult to the body—and the spirit—of an unwilling victim or a victim who is statutorily protected by law because of his or her minority, or both. The culpability of the perpetrator is not diminished by the fact the intrusion is 'undefined' in the law." (Madera, supra, 231 Cal.App.3d at p. 855.) Madera thus undermines, rather than supports, Osejo's argument.
Here, Osejo told Eliana to get in the back of his car, started kissing her, and pulled down her pants and underwear. Eliana pulled her underpants back up, but Osejo pulled them down again and engaged in vaginal sex with her. Afterward they resumed kissing and then had intercourse a second time. On this record the trial court reasonably found the kissing was not merely incidental or preparatory to sexual penetration. "Whether [section 654] 'applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them." (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) Such is the case here.
Osejo relies on People v. Bothuel (1988) 205 Cal.App.3d 581 (Bothuel) and People v. Bevan (1989) 208 Cal.App.3d 393 (Bevan) for his position that the kissing was necessarily incidental to the sexual intercourse, but the Supreme Court disapproved both cases on that point in People v. Scott (1994) 9 Cal.4th 331, 347-348 (Scott). "Bevan and Bothuel were both decided before Harrison, supra, 48 Cal.3d 321, and their reasoning is flawed. The lead case, Bothuel, assumed that sex offenses are generally not defined along the lines of each distinct sexual act. [Citation.] It extracted this principle from Hammon [1987] 191 Cal.App.3d 1084, a case we have since disapproved.
"Bothuel [citation] also disallowed separate convictions for distinct fondling activities based on the assumption that they are generally 'incidental' and 'preparatory to' other sex crimes committed on the same occasion. [Citation.] However, this notion was extracted from older cases which addressed the separate problem of multiple punishment under section 654, and which are outdated even in that context. Thus, Bevan and Bothuel do not properly analyze the circumstances under which a defendant may be separately convicted under section 288 for separate lewd acts committed in a single encounter." (Scott, supra, 9 Cal.4th at pp. 347-348, fn. omitted.) The Court further noted that "contrary to the approach followed in these older cases, courts no longer assume that fondling offenses are 'incidental' to other sex crimes within the meaning of section 654, or that they are exempt from separate punishment. The newer cases tend to focus on evidence showing that the defendant independently sought sexual gratification each time he committed an unlawful act." (Id. at p. 347, fn. 9.) The trial court reasonably found this to be such a case. Substantial evidence supports its finding, so we may not disturb it. (See Jones, supra, 103 Cal.App.4th at pp. 1139, 1143.)
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.