Opinion
A110533
4-26-2007
THE PEOPLE, Plaintiff and Respondent, v. DARREN ANDREW PETRICKA, Defendant and Appellant.
NOT TO BE PUBLISHED
Darren Andrew Petricka was convicted, following a jury trial, of two counts of genital penetration by a foreign object, one count of felony false imprisonment, and three counts of sexual battery by restraint. On appeal, he contends (1) the trial court erred in admitting testimony regarding a prior sexual offense committed by appellant; (2) there was insufficient evidence to support his conviction on the digital penetration counts and one sexual battery count; (3) there was insufficient evidence to support his conviction for felony false imprisonment; (4) conviction on insufficient evidence denied appellant due process of law; (5) the trial court erred by failing to instruct sua sponte on the defense of reasonable belief in consent; (6) defense counsel was ineffective for failing to move for a new trial based on insufficient evidence; (7) the jury should have been required to decide beyond a reasonable doubt whether the two incidents of genital penetration took place on separate occasions; (8) the evidence did not support a finding that the genital penetrations occurred on separate occasions; (9) the courts alternative choice, to exercise its discretion to impose full consecutive sentences on the two genital penetration counts, was contrary to law and an abuse of discretion. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with two counts of genital penetration by a foreign object (Pen. Code, § 289, subd. (a)); two counts of false imprisonment by violence (§ 236); and 10 counts of sexual battery by restraint (§ 243.4, subd. (a)). It was also alleged that the offense was committed during the commission of a burglary, a special aggravated circumstance under section 667.61, subdivisions (a) and (d). During trial, one of the false imprisonment counts and seven of the sexual battery counts were dismissed.
All further statutory references are to the Penal Code unless otherwise indicated.
At the conclusion of a jury trial, appellant was found guilty of two counts of genital penetration by a foreign object, one count of felony false imprisonment, and three counts of sexual battery. However, the jury found the burglary special circumstance enhancement not true.
On June 15, 2005, the trial court sentenced appellant to 15 years in state prison.
Appellant filed a notice of appeal on June 16, 2006.
FACTUAL BACKGROUND
Prosecution Case
Amber K., who was 22 years old at the time of trial, testified that, in November 2003, she lived with her boyfriend, Brent Perez, in an old mobile home on land with vineyards, in Napa County. Their landlords house was next door. Amber had been diagnosed with borderline personality disorder, and was taking Zoloft, an antidepressant; Topamax, a mood stabilizer; Buspar for anxiety; and Trazodone for insomnia. She also was taking Advair and Albuterol for asthma as well, and was also smoking marijuana.
Amber and Perez worked together at Dominos Pizza in Napa, where Amber made pizzas and appellant delivered them. On the evening of November 9, 2003, both Amber and Perez were at work at Dominos when Amber became nauseated and started vomiting. Perez dropped Amber off at their house on the way to a delivery. Perez came inside the trailer with her. A short time later, there was a knock on the door. It was appellant, who was an old friend of Perezs. Amber had previously met him a couple of times. He had made her uncomfortable because, the second time she met him, he gave her a hug and a kiss, which seemed over-friendly.
Amber and Perez told appellant they had just learned that Amber was pregnant, to which appellant offered his congratulations. After about 10 minutes, Amber said she was staying home because she was sick; Perez said he was on his way back to work, and it was time for appellant to go.
Appellant left and Perez left a short time later. Amber went to the bathroom, where she threw up for several minutes. While she was in the bathroom, appellant walked back in through the unlocked front door, stood behind her, and started talking. She told appellant she was leaving to meet up with someone. She felt uncomfortable with the way appellant had supposedly left and then just walked back in.
Appellant, who was huge and weighed about 300 pounds, sat on the bed while Amber looked for her keys, purse, and cigarettes. As she stood in front of him, appellant grabbed her and started rubbing her shoulders. He then said, "Do you know why girls like to fuck dogs[?]" Amber said "No," and he said, "Because they stay hard longer." She pulled away and he grabbed her by the hips. She told him to stop and that she loved Perez, her boyfriend. Appellant pulled her closer and held her there with his legs crossed over hers. She was facing away from him, and he pulled her shirt and undershirt over her head and undid her bra. He then licked her up her spine, while his legs and arms were around her. He also grabbed and groped her breasts.
Amber pulled away from appellant and moved away from the bed. As she started frantically looking for her keys, appellant got off the bed. He turned her around to face him, told her he needed to talk to her and to look at him in the eyes, and said he was "just trying to feel [her] out to see if [she] was a slut for his friend." He also said not to worry because he would not touch her again.
Amber was terrified, in shock, and panicked. She went through the bathroom into the back room as she tried to figure out how to get appellant to leave, because he had not listened when she repeatedly told him to leave. Appellant followed her into the back room. She saw a box on the bed and, without really thinking straight, put the box on appellants head and pushed him backwards about four feet. Appellant took the box off his head and looked at her. Amber "kind of panicked, so I nervously laughed, thinking that he wouldnt take it so seriously, so he wouldnt hurt me."
Amber went back to the front room and appellant went onto the porch. Amber used her cell phone to quickly call a friend, Patrick Gibson. She told him that she needed him to come over immediately, that it was an emergency, and not to bring his girlfriend. Appellant came back into the trailer and sat on the bed. She started looking for her keys again and appellant asked her to call him "Daddy." He pulled her hair, which was in a ponytail, toward him from behind. He put his arms around her and pulled her against the bed again. His arms were around her and he kept trying to put his tongue in her mouth, saying that he would take care of her and Perez. Appellant then "said that he would do anything to me that Brent wouldnt do that I wanted him to do. He said that he would call Brent . . . that night . . . and tell him how to `F me." He fondled her breasts before and after he said this.
Amber jumped up and said she needed a cigarette "right now." Appellant said that he would take her to the store. She said, "no," but he insisted; his tone of voice was aggressive. She felt scared, like she did not have a choice. He said, "Come on. Were going," and they went outside and got into his van. Appellant started up the van and classical music came on, and Amber said, "Are you psycho?" referring to his music and his actions earlier. He just gave her a sharp look.
Appellant drove to a convenience store at a gas station, close to the Dominos Pizza where she and Perez worked. They went inside the store together; Amber still felt like she had no choice. She recognized the sales clerk; her boyfriend had said he used to have a crush on her. Amber got a pack of cigarettes and appellant said to the sales clerk, in a loud and rude way, "You and Brent used to hang out together. You and Brent used to fuck." Amber did not say anything to the clerk because appellant was standing right there. Then she and appellant left the store and he drove them back to the trailer.
When they got there, Amber tried to get out faster than appellant, so she could get to the door before he did. But appellant reached the door first and went inside ahead of her. She did not try to run away because she had no car keys. "We were in the middle of nowhere. I thought he would catch me and hurt me. I would make things worse, I thought. I was paralyzed at this time, too."
Once inside, Amber smoked a cigarette while appellant sat against the bed. She told him he needed to leave "quite a few times." She thought that if she stayed calm, he would eventually leave. Appellant again grabbed Amber from behind, held her with his arms and legs, and felt her breasts underneath her shirt. Every time he touched her and held her down, she would say that she loved Perez. Appellant then tackled her and pushed her onto the floor. She fell, facing the ground, with her stomach down. Appellant was on top of her. She said, "Stop. Get off me."
Appellant grabbed Ambers wrists and pinned her hands above her head with his hands, then moved one hand down underneath her, down her pants, and inside her underwear. He put either one or two fingers inside her vagina. This lasted about 10 minutes. Appellant said she felt good, tried to put his tongue in her mouth, and asked her to willingly kiss and "fuck" him. Amber was scared, crying, squirming to try to get away, and asking appellant to get off of her.
After about 10 minutes, appellant took his fingers out of Ambers vagina, put them in his mouth, and said she "tasted good." He then put his fingers back into her vagina for about 20 more minutes. He also said he wanted to "fuck" her. She was crying and screaming, "Get off of me."
After about 20 minutes, Amber heard a noise and recognized it as the sound of the muffler on the car owned by her friend, Pat Gibson (whom she had called earlier, asking him to come over). She did not remember how long this was after her call to Gibson. Appellant jumped off of her and said, "Fix yourself up." Amber sat up on the floor with her legs crossed. Appellant walked out onto the porch.
Gibson walked inside and sat next to Amber on the floor. Amber looked out at appellant on the porch, and then looked at Gibson and mouthed the word, "rape." Appellant walked in and said he wanted a pizza, and asked if Amber or Gibson wanted pizza. She said, "No, I dont like pizza," and appellant left the trailer without his jacket and cell phone. Amber heard him leave in his van; it was about 9:00 p.m. She immediately called Perez on her cell phone. She told him what had happened and said that appellant was on his way to Dominos, that he had left his cell phone and jacket at the trailer, and that she was scared.
During the time she was with appellant, she was in a state of shock, but was thinking clearly. She did not call the police that night because she did not want to tell anyone what had happened. She did not want to tell anyone the horrible things appellant had said and wanted to keep it all inside. She first talked to a police officer the next morning. She declined a sexual assault examination because "he didnt penetrate with his private parts, and he didnt hurt me physically. The last thing at that point in time, I didnt want to open my legs for the doctor if there wasnt a reason for it."
Brent Perez testified that, in November 2003, he was living and working with Amber K. He had known appellant for 15 years, and considered him a good friend. On November 9, 2003, he was at Dominos Pizza in Napa, where he worked delivering pizzas. At about 5:00 p.m., appellant called and said he was in town and wanted to come over and hang out. When Perez said he was working, appellant said he would stop by and have a bite to eat.
A short time later, Amber, who was making pizzas, got sick and threw up on the floor. Their boss let Perez drive Amber home on the way to a delivery. They lived out in the countryside about four miles from Dominos. When they got home, Amber took a pregnancy test; she also continued to feel sick. About 10 minutes after they got home, appellant pulled up. Perez told appellant that they had just found out that Amber was pregnant and he was excited at the thought of being a father. Appellant shook his hand. Appellant said he was just passing by and saw they were there, and so he stopped. Perez said he had brought Amber home because she was ill, but he had to go back to work. Appellant said he would come to Dominos and have a bite to eat.
As Perez left, appellant decided he wanted to speak with Perezs landlord, who lived right next to their trailer. Perez was not sure, but believed appellant was interested in storing a vehicle on the property. He saw appellant knock on the door of the landlords house just as he left to get back to work.
About two to three hours later, Perez received a call from Amber on his cell phone. She was extremely upset, and said that appellant "had basically raped her, had held her against her will and forced himself upon her." She also said that Pat (Gibson) had stopped by and was there with her.
Five to 10 minutes before this call, appellant had called Perez on Ambers cell phone and had said that he was still at Perezs home, but would be coming to Dominos. Perez was very surprised to learn that appellant was still at his home hours after Perez had left.
Appellant showed up at Dominos within 10 minutes after the phone call, and Perez confronted him. He said something like, "`What the hell were you thinking? [and] `You definitely crossed the line this time. " Appellant responded, " `I was just feeling her out. " Perez said, " `No, thats called rape, " and appellant repeated, " `No, I was just feeling her out. " Appellant then said he had left his jacket and cell phone at Perezs house. Perez said he would go and get them, and they arranged to meet at a certain intersection so that Perez could turn them over to appellant.
Appellant instead returned to the trailer to pick up his phone and jacket.
Appellant left Dominos immediately and Perez left about five minutes later, going straight home. When he arrived, Amber was there with Gibson. She was extremely upset. Her face was red like she had been crying and she was still in her work clothes; her Dominos jersey was untucked. Appellant called Perez within about a week after November 9 and asked, " `Whats the deal?
"Becky Riggs testified that, in November 2003, she worked at USA Petroleum, a gas station. Perez used to come into the gas station. One day, appellant came in with Amber while Riggs was at work and made some sexual comments about Riggs having relations with Perez.
On cross-examination, Riggs said that, while appellant looked familiar, she could not say for sure that he was the man who came in with Amber.
Patrick Gibson testified that, on the evening of November 9, 2003, he received a call from Amber K., who insisted that he come over and would not explain why. He asked if it was an emergency, and she said, yes. He said, " `All right. Im on my way. And I said my goodbyes to my girlfriend . . . and went on my way." It was about a seven-or eight-minute drive to Ambers home. When Gibson arrived, he saw a van he did not recognize. He parked his car and went inside the residence. He saw Amber and immediately noticed that her hair was messed up. He particularly noticed because she is the type of person who is very clean and whose appearance is always topnotch. She was sitting near the television; he did not recall whether she was sitting or lying down. He did not notice if the television was on.
On cross-examination, defense counsel refreshed Gibsons recollection with a police report, and Gibson stated that he recalled that Amber was lying on her stomach watching television when he walked in. He also acknowledged that neither Amber nor appellant appeared to be out of breath; nor was their clothing disheveled. He also knew Amber was using marijuana; he thought she had a "marijuana license."
Gibson also noticed a man he did not know, whom he identified as appellant. Appellant was bigger at the time than he was at trial and "rather intimidating looking." When he first saw appellant, appellant was sitting on the combination couch/bed. They sat and chitchatted, which Gibson thought was kind of weird. At one point, when appellant had gone outside, Amber mouthed to him the word, "rape."
When appellant left, Amber filled Gibson in on what had happened. Appellant came back about 30 or 40 minutes later. He knocked and Gibson answered the door. Appellant came in briefly and grabbed his cell phone and jacket. He also said in a raised voice to Amber, " `I meant what I said." Amber went into the back bedroom and shut the door. After appellant left, Gibson guarded the front door until Perez got home.
On cross-examination and redirect examination, Amber testified that, when appellant returned to the trailer, she heard him yell out, "I meant what I said," and "Why are you going to destroy a friendship?"
Heather S., who was 25 at the time of trial, testified regarding a sexual assault by appellant that occurred in 1994, when she was 14 years old. She was asleep in her bed when she woke up and noticed that someone was in her bed. She saw that it was appellant, who was a friend of the family. She knew he was undressed because she saw he had no shirt on and had heard the sound of jeans falling to the floor. He touched her breasts over her clothing and she moved away from him. He then touched her crotch over her clothing; he also rubbed her thighs, skin to skin. He kept saying, "I love you"; she did not recall what else he said. She did not scream because she was scared. After he touched her crotch, Heather S. got up, left the room, and went into her mothers room across the hall. She then heard the front door open and close.
Defense Case
Dr. Jeffrey Gray, a psychiatrist formerly employed by the Napa County Health and Human Services Department, testified that Amber K. was his patient in 2003; he met with her three times between August and October 2003. He first met with her in August 2003, after a recent hospitalization. She was a resident at Randolph House, which provided psychiatric care. In taking her initial history, Gray noticed that Amber was an inconsistent historian in that she tended to jump around a lot and contradict herself at times during the course of the evaluation. Gray also concluded that Ambers judgment and insight were poor. She had previously suffered from bulimia and engaged in self-mutilation.
Gray diagnosed Amber with borderline personality disorder, with symptoms and history including "affective instability, chronic anger, and lack of control of anger, self-destructive behavior in response to stress, impulsivity, substance abuse, identity disturbance, poor judgment, unstable relationships, manipulation of others, and failure to conform to social norms." Gray believed her prognosis was poor over the next six months to a year because a personality disorder is a chronic pattern of behavior. Amber had previously been diagnosed with bipolar disorder, for which she had been prescribed Zoloft, an antidepressant; Topamax, a mood stabilizer; Buspar, an anti-anxiety drug; and Visterol for sleep and anxiety. Gray continued that prescription to treat the symptoms of her borderline personality disorder, but increased the Topamax dosage. If a person suddenly stopped taking Zoloft, he or she would have a reaction, which might include increased irritability, headaches, body aches, and flu-like symptoms.
Gray acknowledged that he had a criminal case pending, in which the Napa County District Attorneys Office was prosecuting him.
On cross-examination, Gray acknowledged that he had not seen Amber after the November 9, 2003 incident, and had not reviewed any subsequent medical or psychiatric records related to her. Many of the symptoms he described on direct examination were typical symptoms for borderline personality disorder. He did not see Amber long enough to learn if she suffered from all those symptoms. Gray was not aware of any history of Amber making any false claims of sexual assault or not taking her medications. He also agreed that being an inconsistent historian might have nothing to do with truthfulness, but could be related to having a "patchy memory" based on differing emotional states. Finally, he testified that there is a higher incidence of being sexually abused as children and promiscuity as adults in people with borderline personality disorder.
Joseph Hutchens testified that he was a friend of Brent Perez and had met Amber K. twice. He ran into Amber at a liquor store in December 2004, and she asked if he knew appellant. He said he had met him, and Amber told him that appellant had come by looking for Perez and had verbally harassed her. She went into the bathroom and locked the door to wait for her friend to arrive, and appellant left after her friend got there. Hutchens did not think it was appropriate for Amber to tell him about this incident as it was only the second time he had met her. He felt uncomfortable and immediately changed the subject.
DISCUSSION
I. Admission of Heather S.s Testimony
Appellant contends the trial court erred in admitting testimony regarding a prior sexual offense committed by appellant, pursuant to Evidence Code sections 1101 and 1108.
Appellant moved to exclude the testimony of Heather S. regarding appellants sexual assault on her in 1994, some nine years before the incident in the present case. The court, however, denied the motion, finding that the testimony was admissible under Evidence Code sections 1101 and 1108. While Heather S. was permitted to testify as to the facts of the offense, the court did not permit any mention of the fact that appellant was prosecuted and convicted of sexual battery (§ 243.4, subd. (a)).
We need not decide whether the evidence was admissible to show common scheme or modus operandi under Evidence Code section 1101, because we conclude that it was properly admitted to show propensity under Evidence Code section 1108.
Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352."
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court found that Evidence Code section 1108, which permits introduction of propensity evidence in cases alleging the commission of sexual offenses, did not violate a defendants due process rights. While acknowledging the general rule against admitting such evidence due to its great potential to unduly prejudice the defendant, the court held that, "in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence." (Id. at p. 915.)
Evidence Code section 1108 was enacted in 1995 to permit the use of disposition or propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 911.) The Legislature intended for section 1108 "to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that `propensity evidence is per se unduly prejudicial to the defense. [Citation.] [¶] . . . `Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citations.]" (Id. at pp. 911-912.)
The "substantial protections" to which the Falsetta court referred consists of the requirement that the court "engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The Falsetta court concluded that "the trial courts discretion to exclude propensity evidence under Evidence Code section 352 saves section 1108 from defendants due process challenge. . . . This [Evidence Code section 352] determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause. [Citation.]" (Falsetta, supra, 21 Cal.4th at pp. 917-918, italics omitted.)
Here, appellant acknowledges that Heather S.s testimony was "potentially admissible under Evidence Code section 1108," but claims that it was nonetheless "barred by Evidence Code section 352." In support of this assertion, appellant cites People v. Harris (1998) 60 Cal.App.4th 727, 730-731 (Harris), in which the defendant, a mental health nurse, was charged with nonviolent sexual offenses involving two emotionally and physically vulnerable women in his care. Under Evidence Code section 1108, the trial court admitted evidence of an extremely violent sexual offense on an apparent stranger the defendant had committed 23 years earlier. (Id. at pp. 733-735.)
Appellant opines that admission of evidence under Evidence Code section 1108 solely to show propensity denies a defendants right to a fair trial. He acknowledges, however, that we are bound by our Supreme Courts finding in People v. Falsetta, supra, 21 Cal.4th 903, that section 1108 is constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also argues that the standard of review should be "substantially less deferential" when reviewing a trial courts admissibility determination pursuant to Evidence Code section 1108. However, as previously discussed, in requiring that the trial court "engage in a careful weighing process [of various factors] under [Evidence Code] section 352," section 1108 affords a defendant "substantial protections." (Falsetta, supra, 21 Cal.4that pp. 915, 917.)
The appellate court reversed, holding that the evidence should have been excluded under Evidence Code section 352. (Harris, supra, 60 Cal.App.4th at p. 738.) The court examined the various factors to be considered when weighing the admissibility of a prior offense under Evidence Code section 352, and found the other offense evidence was "inflammatory in the extreme" (id. at p. 738) and was also speculative because the jury was not given a coherent explanation of what had actually occurred; there was a probability of confusing the jury; the 23-year-old incident was remote in time; and the evidence lacked any significant probative value, given that the prior offense was wholly dissimilar to the "breach of trust" sex crimes with which he was charged. (Id. at pp. 738-741.)
Harris is not persuasive in the very different factual circumstances of this case. Here, consideration of the factors discussed in Falsetta supports admission of Heather S.s testimony. The prior sex offense was not particularly inflammatory, when compared with the present case. While it concerned a sexual assault on a teenage girl, it did not include the more egregious genital penetration and false imprisonment allegations of this case. It was a straightforward account, unlikely to confuse the jury; nor did it necessitate an undue consumption of time. Appellant was convicted of the prior crime, which lessens the likelihood of fabrication on the part of the victim.
Moreover, unlike in Harris, the prior and current offenses contain many similarities, including the facts that both occurred in the home of people with whom he was friends; both involved the fondling of the victims breasts and genitals, without intercourse; and, in the first incident, he told the victim he loved her while, in the present case, he said he would "take care of" Amber and Brent. Although the prior offense occurred nine years before the present one, under all of the circumstances and in light of the other factors, that length of time is not so remote as to militate against admissibility.
In sum, Heather S.s testimony regarding the prior offense was quite relevant to the issue in dispute in the present case: whether appellant had committed the acts against Amber alleged in the information. Moreover, we do not agree with appellant that simply because Amber had mental health issues or because there were some alleged discrepancies in her testimony, Heather S.s testimony was necessarily prejudicial. Rather, it was the trial courts duty to weigh the probative value of the prior offense evidence against its potential for prejudice, and we believe its finding that Heather S.s testimony regarding the 1994 incident was admissible was reasonable in the circumstances. There was no abuse of discretion. (See Falsetta, supra, 21 Cal.4th at pp. 916-918.)
II. Sufficiency of the Evidence of Two Counts of Digital Penetration and One Count of Sexual Battery
Appellant contends there was insufficient evidence to support his conviction on the two digital penetration counts and the final sexual battery count. Specifically, he argues that the evidence related to these acts, which were allegedly committed after the trip to the gas station for cigarettes, is so implausible that his conviction on these three counts cannot be upheld.
"When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)
"`"To warrant the rejection the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resort to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]"" (People v. Barnes (1986) 42 Cal.3d 284, 306.) Also, a trier of fact may reasonably reject parts of a witnesss testimony as inherently improbable yet credit other parts, matters on which an appellate court cannot substitute its own judgment. (People v. Nunez (1983) 144 Cal.App.3d 697, 705; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.)
Here, appellant argues that it is physically impossible that the second attack, after the return from the gas station, took place. According to appellant, this impossibility is demonstrated by the fact that he supposedly tackled Amber to the floor, lay on top of her, pinned her wrists to the floor, reached under her, and penetrated her vagina for a total of 30 minutes. Yet Amber testified that she suffered no pain in her vagina or elsewhere; there were no marks on her body; and Patrick Gibson walked in on the assault and saw no disorder except for Ambers "messed up" hair. In addition, according to appellant, Ambers testimony that the second attack lasted some 30 minutes is contradicted by Gibsons testimony that he was only eight minutes away when Amber called him (before the trip to the gas station) and that he drove straight over.
Appellant also argues that Ambers strange behavior in letting him drive her to the store, buying cigarettes from someone she knew, getting back into appellants truck instead of trying to run away, and returning to the trailer with him, are inconsistent with her testimony that she was afraid of him. Finally, appellant claims the fact that Amber had been diagnosed with borderline personality disorder, was subject to rapid mood changes and changing views of reality, and may have stopped taking the psychotropic drugs that helped control her symptoms, further support his claim that her testimony was inherently improbable.
We do not agree that the evidence discussed by appellant shows that there was insufficient evidence to support the convictions for the offenses occurring after the return to the trailer. Rather, it appears that appellant is asking us to reweigh the evidence and Ambers credibility and come to a conclusion contrary to that of the jury, which we are not permitted to do. (See People v. Cardenas (1982) 31 Cal.3d 897, 912.) In particular, we do not believe that Ambers lack of physical pain or marks proves she could not have been assaulted. Those facts were simply part of the case that the jury had to evaluate in making its findings. Moreover, to say that Ambers failure to run away from appellant shows that she was not afraid merely reflects the defenses point of view regarding what the evidence shows. In addition, her mental health issues were simply one more factor for the jury to consider. While such arguments were appropriate for the jury to consider in the trial court, they do not demonstrate impossibility such that reversal on appeal is appropriate. As for the timing of Gibsons arrival and Ambers testimony regarding the length of the digital penetrations, it was for the jury to determine whether Amber and Gibson were credible on these points or whether one of them might have been mistaken in their testimony regarding timing. (See People v. Barnes, supra, 42 Cal.3d at p. 306.) Moreover, conflicts and inconsistencies in the evidence do not satisfy the requirement of physical impossibility or inherent improbability. (Ibid.)
While it might have been possible for the jury to find a reasonable doubt as to appellants guilt based on these points, it did not in fact so find, and there is nothing so physically impossible or inherently improbable in the evidence as to undermine its sufficiency. That there might be conflicts in the evidence or even justifiable suspicion that certain details to which Amber testified did not happen exactly as she said are not reasons to reverse the judgment. (See People v. Barnes, supra, 42 Cal.3d at p. 306; People v. Nunez, supra, 144 Cal.App.3d at p. 705; People v. Maxwell, supra, 94 Cal.App.3d at pp. 576-577.)
Accordingly, we reject appellants contention that the evidence was insufficient to sustain his conviction for the two counts of digital penetration and the final count of sexual battery.
III. Sufficiency of the Evidence of Felony False Imprisonment
Appellant contends there was insufficient evidence to support his conviction for felony false imprisonment.
A. Trial Court Background
Appellant was originally charged in the information with two counts of felony false imprisonment. Count three alleged that appellant committed false imprisonment by violence by "wrapping his legs around the victim." Count four alleged that he committed false imprisonment by violence by "holding the victim down on a floor."
During trial, defense counsel asked that either count three or four be dismissed because "[f]alse imprisonment is a collection of acts that result in the restraint of liberty. Each individual act does not count as restraint. It is a collection of acts, and by the testimony of [Amber K.,] it was clear that she never felt free to leave during the entire encounter, she was imprisoned. There was one imprisonment here, and each time one wraps ones legs around or holds somebody by the arm or one does something that tends to support imprisonment . . . . So this was one criminal act of imprisonment."
After defense counsel and the prosecutor conferred, the prosecution said he would submit on defense counsels false imprisonment argument because he agreed it was a continuous course of conduct. The court then dismissed count four.
The information apparently was not otherwise amended and the felony false imprisonment instruction and verdict form given to the jury merely referred to appellants being accused in count three of felony false imprisonment by violence or menace; there was no mention of a continuing offense.
The jury was instructed with CALJIC No. 9.60, as follows: "Defendant is accused in Count Three of having committed the crime of false imprisonment by violence or menace, a violation of section 236 of the Penal Code. Every person who by violence or menace violates the liberty of another person by intentionally and unlawfully restraining, confining, or detaining that person and compelling that person to stay or go somewhere without her consent is guilty of the crime of false imprisonment by violence or menace in violation of Penal Code section 236.
"`Violence means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint.
"`Menace means a threat of harm express or implied by word or act.
"False imprisonment does not require that there be confinement in a jail or prison.
"In order to prove this crime, each of the following elements must be proved:
"1. A person intentionally restrained, confined, or detained another person, compelling her to stay or go somewhere;
"2. The other person did not consent to the restraint, confinement, or detention; and
"3. The restraint, confinement or detention was accomplished by violence or menace."
However, in closing argument, the prosecutor did describe the false imprisonment as a continuous offense, stating that "this entire episode was a false imprisonment to Amber from the time she heard the defendant speaking behind her when she was sick in the bathroom. Whether it was the physically tackling her, lying on top of her, locking his legs around her, the things he said, the fears she continually felt. . . . So both in terms of things he said and the things he did the defendant was intentionally restraining, confining, detaining her."
During deliberations, the jury asked two questions regarding the false imprisonment count. In its first note to the court, the jury asked whether the violence that occurred during a sexual assault could "also be considered as the violence that resulted in the false imprisonment in count three (felony)." The court responded, "As a general principle of law, it can be so considered." In its second note, the jury asked whether count three on the verdict form, which defined the offense as "false imprisonment by violence," also included "menace" as stated in the instructions. The court responded, "The wording of the jury instruction given to you constitutes the law on that charge."
B. Legal Analysis
Appellant argues that, after the court dismissed one of the two felony false imprisonment counts (count four), the remaining count (count three) merely alleged that he wrapped his legs around Amber. According to appellant, that act is therefore the only one on which the jury could have based his conviction for felony false imprisonment, and the evidence is insufficient to support such a conviction. He further asserts that, notwithstanding the fact that it was his attorney who requested that one of the false imprisonment counts be dismissed because the evidence showed a continuous period of false imprisonment, he should not be precluded from raising this issue on appeal. He believes the prosecutor should have sought to amend the information and should have requested that the jury be instructed regarding the theory of continuous false imprisonment, so that the jury would not be left with the impression that count three solely concerned appellants act of wrapping his legs around Amber.
We disagree. Even if, as appellant asserts, the information was not amended and the jury was not specifically instructed on the theory of continuous false imprisonment, appellants failure to request such an amendment or instruction—after specifically arguing that such a theory required dismissal of one of the two false imprisonment counts and obtaining such a dismissal—precludes him from arguing otherwise on appeal.
We also note that the prosecutor discussed the continuous false imprisonment theory—without objection—during his closing argument, and argued that the jury should convict appellant of false imprisonment based on his ongoing conduct from the moment he appeared behind Amber in the bathroom. Moreover, we do not believe—as appellant claims—that the jurys questions during deliberations demonstrate that the only false imprisonment allegation it was considering was when appellant wrapped his legs around Amber.
Turning to the merits, section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." The misdemeanor requires simply that " ` "the individual be restrained of his liberty without any sufficient complaint or authority therefor, and it may be accomplished by words or acts . . . which such individual fears to disregard." [Citations.] [Citation.]" (People v. Babich (1993) 14 Cal.App.4th 801, 806.) False imprisonment is a felony when it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) "Violence" is defined in CALJIC No. 9.60 as "the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint," while "menace" is defined as "a threat of harm express or implied by word or act."
In the present case, the evidence showed that appellant, a 300-pound man who Amber barely knew, entered her home without knocking shortly after her boyfriend had left. Amber said she had to leave, but appellant grabbed her and started touching her. He made a lewd comment and, when she tried to pull away, he grabbed her by the hips, ignored her requests to stop, and proceeded to hold her in place with his legs crossed over hers while he licked her spine and groped her breasts.
After Amber managed to pull away from appellant and began to search for her car keys, appellant came up to her, said to look him in the eyes, and said he was just trying to feel her out to see if she was a slut. He then followed her into the back bedroom. After Amber put a box on his head and returned to the front room, appellant went out on the porch and she called her friend, Patrick Gibson, telling him to come over immediately and that it was an emergency.
When appellant came back inside, Amber started again searching for her keys, but he pulled her toward him by her ponytail. He put his arms around her and tried to put his tongue in her mouth and fondled her breasts, while speaking to her in a sexual way. When Amber said she needed a cigarette, appellant said he would take her to the store. At the store, while Amber bought cigarettes, appellant made a rude sexual comment to the sales clerk; he then drove Amber back to the trailer. Amber did not try to run away from appellant because they were "in the middle of nowhere," she had no car keys, and she thought he would catch her and hurt her; she also felt paralyzed.
Once inside, appellant ignored Ambers repeated requests that he leave. He again grabbed her from behind, held her with his arms and legs, and felt her breasts. He then tackled her and pushed her onto the floor, face down. Appellant was lying on top of her. He grabbed her wrists and pinned her hands above her head with his hands, before twice sticking his hand into her pants, digitally penetrating her vagina, and saying he wanted to fuck her, while she cried and screamed for him to get off of her. It was only when she heard the sound of a car driving up that appellant jumped up and said to "[f]ix yourself up."
The jury could reasonably conclude from this evidence, taken together, that appellant, almost from the time he entered the trailer without permission, impliedly threatened Amber by his physically intimidating and assaultive acts. He was much larger than she was, he repeatedly grabbed and fondled her, he ignored her pleas to leave, the trailer was out "in the middle of nowhere," and Amber could not find her car keys. All of these factors reflect menace, for purposes of proving felony false imprisonment. (See CALJIC No. 9.60; compare People v. Matian (1995) 35 Cal.App.4th 480, 485-487.) Moreover, when appellant tackled Amber to the floor, lay on top of her, and held her by the wrists while pinning her hands to the ground above her head, he used physical force to restrain her beyond the force necessary to effect such restraint. This evidence reflects violence by appellant, for purposes of showing felony false imprisonment. (See CALJIC No. 9.60; see also People v. Castro, supra, 138 Cal.App.4th at p. 143 [where defendant grabbed victim and turned her around, fact that he also pulled her towards his car showed that he did "more than what was required to stop [victim] and keep her where she was located"].)
The appellate court in People v. Matian, supra, 35 Cal.App.4th 480, held that the defendants actions did not reflect menace because he did not use a deadly weapon or verbally threaten the victim with additional physical punishment. (Id. at pp. 486-487.) This case has been criticized as requiring more than should be necessary to prove felony false imprisonment by menace. (See People v. Castro (2006) 138 Cal.App.4th 137, 143 [disagreeing with result in People v. Matian, concluding that evidence in that case supported conviction for felony false imprisonment by menace].)
We conclude that substantial evidence supports appellants conviction of felony false imprisonment. (See People v. Castro, supra, 138 Cal.App.4th at p. 140.)
Because we find there was sufficient evidence to support appellants conviction of the two counts of genital penetration and the final count of sexual battery, as well as his conviction of felony false imprisonment, appellants contentions that conviction on insufficient evidence denied him due process of law and that defense counsel was ineffective for failing to move for a new trial based on insufficient evidence are plainly without merit and need not be addressed. With respect to counsels failure to move for a new trial, in particular, we do not agree with appellant that this was such a close case that competent counsel would necessarily be expected to file such a motion. (See People v. Savala (1969) 2 Cal.App.3d 415, 419; People v. Edgmon (1968) 267 Cal.App.2d 759, 766-770.)
IV. Trial Courts Failure to Instruct on the Defense of Reasonable Belief in Consent
Appellant contends the trial court erred by failing to instruct sua sponte on the defense of a reasonable, but mistaken, belief in consent, pursuant to CALJIC No. 10.65.
CALJIC No. 10.65 provides: "In the crime of unlawful [forcible rape] [oral copulation by force and threats] [forcible sodomy] [penetration of the [genital] [or] [anal] opening by a foreign object, substance, instrument or device by force, [violence] [fear] [or] [threats to retaliate]], criminal intent must exist at the time of the commission of the __(crime charged)________.
"There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device]. Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.]
"[However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of conduct by the defendant that amounts to force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief.]
"If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find [him] [her] not guilty of the crime."
"In People v. Mayberry [(1975)] 15 Cal.3d 143, [the California Supreme Court] held that a defendants reasonable and good faith mistake of fact regarding a persons consent to sexual intercourse is a defense to rape. [Citation.] . . . . [¶] The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. [Citations.]" (People v. Williams (1992) 4 Cal.4th 354, 360-361, fns. omitted.)
"A trial courts duty to instruct, sua sponte, on particular defenses arises ` "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case." [Citations.]" (People v. Maury (2003) 30 Cal.4th 342, 424.)
In the present case, appellant acknowledges that he did not rely at trial on mistake of fact as a defense, but instead claimed that the assaults never occurred. He now argues that the trial court should nonetheless have instructed the jury, pursuant to CALJIC No. 10.65, on the defense of an honest and reasonable, but mistaken, belief in consent because such a theory was "not so inconsistent with the defense theory that it would be an abuse of discretion for the judge to instruct on [it]." He also argues that Ambers behavior was such that he could reasonably have believed that she consented to the sexual acts that occurred after they returned from the store.
At trial, the prosecutions evidence showed that, after they got back from the store, Amber told appellant he needed to leave "quite a few times." Each time he touched her, she said she loved Perez. After he tackled her and pushed her onto the floor, Amber also said, "Stop. Get off me." During the first digital penetration, Amber was scared, crying, squirming in an effort to get away; she also asked appellant to get off of her. During the second penetration, she was crying and screaming, "Get off of me." The assault ended only after she heard the sound of Pat Gibsons car pulling up to the trailer. In light of this evidence, which reflects no equivocal conduct on Ambers part, it plainly would not have been objectively reasonable for appellant to believe Amber consented to the touching, regardless of appellants subjective belief. (See People v. Maury, supra, 30 Cal.4th at p. 424.)
Appellant asserts that the fact that Amber accompanied him to the store and did not run away provides substantial evidence of Ambers equivocal conduct, which he might have understood as consent. However, that Amber accompanied appellant to the store cannot be equated with implied consent to the later sexual touching, especially given her testimony that she actively expressed her opposition to the assault. (See People v. Williams, supra, 4 Cal.4th at p. 363 [Court of Appeal erred in finding fact that victim willingly accompanied defendant to hotel provided substantial evidence of equivocal conduct since relevant inquiry under Mayberry "is whether [defendant] believed [victim] consented to have intercourse, not whether she consented to spend time with him"].)
Appellant also claims that the jury might not have believed that events had happened exactly as Amber said they did following the trip to the store, and that it might have concluded that the digital penetration ended when Amber made clear she wanted it to stop. This speculation cannot substitute for substantial evidence of equivocal conduct on the part of Amber.
In addition, appellant offered no evidence showing that he believed Amber had consented to any of the sexual touching. Indeed, he did not testify at trial and the defenses theory was that no sexual touching had occurred. (See People v. Maury, supra, 30 Cal.4th at p. 425, citing People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369 ["no sua sponte duty to give Mayberry instruction where `[d]efendants counsel never suggested he was relying on the mistake of fact defense, tendered no evidence to support such a defense, and did not request the instruction defendant now claims it was error to withhold "].)
Amber and Brent Perezs testimony that appellant said he was trying to "feel [Amber] out," may provide a possible motivation for appellants actions, but certainly does not provide any evidence that Ambers conduct made him reasonably believe she consented to the touching.
Accordingly, because there was no substantial evidence supporting a Mayberry instruction, the trial court had no sua sponte duty to instruct the jury pursuant to CALJIC No. 10.65. (See People v. Maury, supra, 30 Cal.4th at pp. 424-425; People v. Williams, supra, 4 Cal.4th at pp. 361-362.)
V. Alleged Requirement that the Jury Decide Whether the Two Incidents of Genital Penetration Took Place on Separate Occasions
Appellant contends that, under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), it was error for the trial court to decide whether the two incidents of genital penetration took place on separate occasions. Instead, according to appellant, the jury was required to make the determination, beyond a reasonable doubt, whether the incidents took place on separate occasions.
The trial court found that it was obliged to impose full consecutive terms of six years on the two genital penetration counts, pursuant to subdivision (d) of section 667.6, because appellant "did have a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior."
Section 667.6 provides that "[a] full, separate, and consecutive term shall be imposed for each violation" of certain sexual offenses, including section 289, "if the crimes involve separate victims or involve the same victim on separate occasions." (§ 667.6, subd. (d).)
In People v. Black (2005) 35 Cal.4th 1238, 1244 (Black ), the California Supreme Court held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial." The Black court cited with approval several cases decided before Blakely, which held that Apprendi does not apply to a trial courts decision to impose consecutive sentences. (Black, at pp. 1263-1264 & fn. 19.) Among the cited cases was People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231, in which the trial court had sentenced the defendant to full consecutive terms, under section 667.6, subdivision (d), after finding, by a preponderance of the evidence and without submitting the issue to a jury, that two counts of oral copulation occurred on separate occasions. The appellate court concluded that such a sentencing procedure was consistent with federal constitutional standards. The Black court stated that nothing in Blakely or United States v. Booker (2005) 543 U.S. 220 "undermines the conclusions reached in these cases," including People v. Groves. (Black, at p. 1264.)
We note that in the very recent case of People v. Cunningham (2007) ___ S.Ct. ___, 2007 WL 135687, the United States Supreme Court held that a jury, not the trial court, must make the factual findings exposing a defendant to an upper term sentence. That opinion, however, did not address the question of consecutive sentencing. Hence, the decision of our Supreme Court in Black remains the law on consecutive sentencing in California.
We are bound to follow our Supreme Courts decision in Black (see Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and therefore conclude that appellants contention lacks merit.
VI. Finding that Genital Penetrations Took Place on Separate Occasions
Appellant contends the evidence did not support a finding that the genital penetrations occurred on separate occasions.
A. Trial Court Background
Amber testified that appellant tackled her and pushed her onto the floor on her stomach, with appellant on top of her. He pinned her hands above her head with his hands, then moved one hand down underneath her, down her pants, and inside her underwear, putting either one or two fingers inside her vagina. After about 10 minutes, appellant took his fingers out of Ambers vagina, put them in his mouth, and said she "tasted good." He then put his fingers back into her vagina for about 20 more minutes.
At the sentencing hearing, the court stated that, under subdivision (d) of section 667.6, "[f]ull consecutive terms must be ordered for a defendant who commits multiple sex crimes against the same victim on separate occasions. [¶ . . . [¶] The Court finds in this case that both Count One, the 289(a) Penal Code offense, and Count Two, the 289(a) Penal Code offense, were committed against the same victim on separate occasions within the meaning of 667.6(d). So I am obligated to give full terms for each count of 289 and make them consecutive.
"In reaching this conclusion, Ive made determinations under [California Rules of Court, rule] 4.426(a)(2) and Ive determined that after the commission of the first 289(a) wherein the defendant digitally penetrated the victims vaginal opening against her will, the defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed his sexually assaultive behavior by again digitally penetrating the victims vaginal opening against her will, thereby committing the second count of 289. Specifically, I find the defendant did this digital penetration of the victims vagina and then pulled his finger out of her vagina, then he smelled it, tasted his finger and indicated that it tasted good, and thereafter resumed his assaultive behavior by again penetrating her vaginal opening. Between these two acts defendant did have a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior. So as Ive stated, I am obligated to impose full terms and make them consecutive."
The court then chose the middle term of six years for each of the two counts, for a total of 12 years. The court also indicated, for the record, that even if subdivision (d) of section 667.6 did not apply, it would still have exercised its discretion, under subdivision (c) of section 667.6, to impose two full term six-year consecutive sentences. The court also provided a statement of reasons for such a sentence, as would be required under section 667.6, subdivision (c).
B. Legal Analysis
Section 667.6, subdivision (d), provides in relevant part: "A full, separate, and consecutive term shall be imposed for each violation" of certain sexual offenses, including section 289, "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."
"Under the broad standard established by Penal Code section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location." (People v. Jones (2001) 25 Cal.4th 98, 104; accord, People v. Irvin (1996) 43 Cal.App.4th 1063, 1071 ["at sentencing, a trial court could find a defendant had a `reasonable opportunity to reflect upon his or her actions even though the parties never changed physical locations and the parties `merely changed positions"].) A trial courts finding that "the time and circumstances were sufficient to afford the defendant with the required opportunity to reflect upon his actions and he thereafter resumed his sexually abusive conduct, that finding will be upheld unless no reasonable trier of fact could have so concluded. [Citations.]" (People v. Plaza (1995) 41 Cal.App.4th 377, 385.)
In the present case, the trial court specifically found that appellant had the opportunity to reflect on his actions when he removed his fingers from Ambers vagina, placed them in his mouth, and said she tasted good, before resuming his sexual assault by again digitally penetrating Ambers vagina. Appellant argues that the assaults here took place only seconds apart, with no cessation of sexual behavior, and no cessation of the restraint that made the sexual behavior possible. Therefore, according to appellant, the court could not reasonably have found that the assaults occurred on separate occasions, for purposes of sentencing under subdivision (d) of section 667.6. We disagree.
First, the statute and cases interpreting the statute make clear that a break of any specific duration is not required. (See § 667.6, subd. (d); People v. Jones, supra, 25 Cal.4th at p. 104.) Second, there was a cessation of the sexual behavior at issue—digital penetration—in that appellant removed his fingers from Ambers vagina for a short time before again inserting them. The fact that he put his fingers in his mouth and commented on the taste during the break between penetrations does not transform this into one continuous assault, with no opportunity to reflect. In People v. Brown (1994) 28 Cal.App.4th 591, even briefer breaks in a sexual assault provided the requisite opportunity to reflect. There, the evidence showed that the defendants penis kept coming out of the victims vagina as he raped her, and the defendant put his penis back inside her vagina eight or nine times and threatened to kill her if she did not stop moving. (Id. at p. 601.) The appellate court upheld eight full consecutive rape sentences based on this conduct, explaining: "Each time [the victim] struggled and defendants penis came out, he could have chosen to stop his attack on [the victim] and have been convicted of and punished for fewer counts of rape." (Ibid.)
Third, that appellant continued to restrain Amber by lying on top of her during the break in the assaults also does not undermine the courts finding that the digital penetrations occurred on separate occasions. (See People v. Plaza, supra, 41 Cal.App.4th at p. 385 [upholding finding that defendant had a reasonable opportunity to reflect on his actions where, following forced oral copulation in bathroom, defendant stopped his sexually assaultive behavior, even though he continued to restrain victim while pushing her into bedroom and forcing her onto bed].)
Finally, appellant misconstrues the appellate courts statement in People v. Irvin, supra, 43 Cal.App.4th 1063, that it doubted that any reasonable trier of fact could find that every act at issue there was committed on a separate occasion, given the manner in which the numerous digital penetrations were described by the victim in her testimony. (Id. at pp. 1071-1072.) However, in People v. Irvin, the victim testified that three different times during the assault, the defendant massaged or washed the victims vagina while also inserting his fingers "in and out" of her vagina "about four or five" or "about six" times. (Id. at p. 1066.) Thus, the victims testimony seemed to reflect three occasions when the defendant stuck his finger in and out of her vagina over and over again, rather than some 15 separate occasions of digital penetration. Here, by contrast, Ambers testimony showed that appellant digitally penetrated her vagina a first time, stopped and took his fingers out, put his fingers in his mouth, spoke, and then put his hands back down Ambers pants to penetrate her vagina a second time.
We find reasonable the courts conclusion that the assaults took place on separate occasions for purposes of sentencing appellant to full consecutive sentences under section 667.6, subdivision (d). We therefore reject appellants contention that no reasonable trier of fact could have concluded that appellant had a reasonable opportunity for reflection between the two digital penetrations. (See People v. Plaza, supra, 41 Cal.App.4th at pp. 384-385.)
Our finding that appellant was properly sentenced under section 667.6, subdivision (d), renders it unnecessary to consider his argument that the courts alternative choice, to exercise its discretion to impose full consecutive sentences on the two genital penetration counts, pursuant to subdivision (c) of section 667.6, was contrary to law and an abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur:
LAMBDEN, J.
RICHMAN, J.