Opinion
C088035
02-14-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA EVON PLUMEAU, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 72010135)
A jury convicted defendant Joshua Evon Plumeau of rape, criminal threats, false imprisonment, and misdemeanor tampering with a wireless communication device. The trial court sentenced him to nine years four months in prison.
Defendant now contends (1) the trial court erred in instructing the jury with CALCRIM No. 361 concerning defendant's failure to explain or deny evidence, because the instruction was inapplicable and prejudicial; (2) the trial court should have stayed the term for false imprisonment pursuant to Penal Code section 654; and (3) we should remand the matter to give the trial court an opportunity to determine defendant's ability to pay the imposed fines and assessments.
Undesignated statutory references are to the Penal Code. --------
We conclude (1) the evidence supported giving CALCRIM No. 361, (2) the evidence also supported the trial court's decision not to stay the false imprisonment term, and (3) there is no need to remand the matter because the trial court considered defendant's ability to pay in imposing the fines and assessments.
We will affirm the judgment.
BACKGROUND
The victim was defendant's girlfriend and lived with him. On the night of the crimes, the victim got off work around 11:00 p.m. and went to bed. Defendant expressed a desire for sex but the victim declined. Defendant became more aggressive in insisting on sex, ripping the sheets off the bed, taking the mattress out of the bedroom, and requiring the victim to lie on the dog's bed to sleep. Defendant eventually returned the mattress to the bedroom and told the victim he would rape her if she did not comply with his demand for sex. When the victim said she would call the police, defendant hid her cell phone, iPad and keys.
Defendant physically restrained the victim in the bedroom and threatened her life. He pulled down the victim's pants, penetrated her vagina with his penis while she cried, and ejaculated inside her. After the rape, defendant told the victim he would kill her if she notified the police, and he physically restrained the victim until he fell asleep. The victim then escaped and notified the police.
When the police contacted defendant, he said he had been "a little bit out of control and stupid." He admitted having sex with the victim that night and claimed that, at first, she wanted it but did not want defendant to ejaculate inside her. He also admitted the victim was crying during sex and acknowledged that it sounded like rape. He told the police he took the victim's electronic devices because she said she was going to call the police. Defendant added that he took the electronic devices to prevent her from posting derogatory things about him on social media.
The jury convicted defendant of rape (§ 261, subd. (a)(2)), criminal threats (§ 422, subd. (a)), false imprisonment (§ 236), and misdemeanor tampering with a wireless communication device (§ 591.5). The trial court sentenced defendant to an aggregate term of nine years four months, consisting of the upper term of eight years for the rape, consecutive terms of eight months for the criminal threats and false imprisonment, and a concurrent term of 180 days for tampering with a wireless communication device. The trial court also ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation fine (§ 1202.45, subd. (a)), a $160 court operations assessment (§ 1465.8, subd. (a)), a $120 court facility assessment (Gov. Code, § 70373, subd. (a)(1)), a $300 sex offense conviction fee (§ 290.3), a $553 booking fee, and a $1,300 assessment for the victim's SART (sexual assault response team) exam.
DISCUSSION
I
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 361 because the instruction was inapplicable and prejudicial.
The trial court instructed the jury with CALCRIM No. 361 as follows: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
CALCRIM No. 361 is based on the logical inference that if a person charged with a crime is given the opportunity to explain or deny evidence against him and fails to do so, or gives an implausible explanation, then the evidence against him may be entitled to greater weight. (People v. Vega (2015) 236 Cal.App.4th 484, 496.) However, the trial court should not give CALCRIM No. 361 unless (1) the defendant testified and was asked a question calling for an explanation or denial of incriminating evidence, (2) the circumstances indicated the defendant knew the facts necessary to answer the question, and (3) the defendant failed to deny or explain the incriminating evidence when answering the question. (People v. Saddler (1979) 24 Cal.3d 671, 682-683.)
During cross-examination, defendant said he took the victim's cell phone and iPad so she would not post anything disparaging about him on social media. When the prosecutor asked defendant whether he remembered telling an officer that he took the victim's cell phone so she could not call the police, defendant answered that he remembered saying it. The prosecutor asked why he said that to the officer, and defendant responded: "I don't know why I would tell the officer that."
This exchange involved a failure by defendant to explain or deny incriminating evidence, and it was sufficient to justify giving the jury CALCRIM No. 361. The jury could reasonably conclude that defendant knew why he told the officer that he took the cell phone to prevent the victim from calling the police, and yet defendant's response was a claim that he did not know why he said it, from which the jury could infer that defendant did not want to further incriminate himself.
Defendant argues in his reply brief that this was nothing more than a failure to remember something that occurred many months earlier. But the jury was not constrained to believe defendant did not remember why he made the incriminating statement to the officer. Therefore, the trial court did not err in giving CALCRIM No. 361.
Because the trial court did not err, we need not consider the parties' arguments concerning prejudice, forfeiture, effective assistance of counsel, or whether error affected defendant's substantial rights.
II
Defendant next contends the trial court should have stayed the term for false imprisonment pursuant to section 654.
Section 654 states in pertinent part: "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." (§ 654, subd. (a).) "[S]ection 654 . . . applies to multiple convictions arising out of an 'indivisible' course of conduct committed pursuant to a single criminal intent or objective. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) It bars multiple punishment "[i]f all of the offenses [in a criminal course of conduct] were incident to one objective." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another point by People v. Correa (2012) 54 Cal.4th 331, 334 and superseded by statute on another point as indicated in People v. Salmorin (2016) 1 Cal.App.5th 738, 752, fn. 10.) But "[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) "Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense. [Citations.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.) We will uphold the trial court's implied or express factual determinations if they are supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Defendant argues that his only intent and objective in falsely imprisoning the victim was to rape her. We disagree. "False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) The trial court found that defendant's objective in falsely imprisoning the victim was independent of defendant's objective in raping the victim, and that finding is supported by the evidence. Even after defendant raped the victim, he falsely imprisoned her by holding her down and preventing her from leaving the room, indicating that his intent and objective in falsely imprisoning the victim went beyond raping her. The evidence is sufficient to support the trial court's decision to impose unstayed terms for both rape and false imprisonment.
Defendant nevertheless argues the prosecutor elected to rely on defendant's pre-rape imprisonment of the victim to support the false imprisonment conviction and, therefore, the trial court could not consider defendant's post-rape conduct in determining whether to impose an unstayed term for the false imprisonment. In closing argument, the prosecutor told the jury that the false imprisonment occurred when defendant kept the victim in the room to rape her. The prosecutor said: "[The victim] testified that the door was closed. She was trying to get out. They were wrestling. He was keeping her from really doing anything. He gets her on the bed and then performs the sexual assault." Defendant now argues: "The prosecutor elected this act, of keeping [the victim] in the room in order to rape her, as the basis for the false imprisonment charge. The crime concludes apparently, again according to the prosecutor's election, when [defendant] put her on the bed to assault her."
Although the prosecutor made those statements in closing argument, they were merely that: argument. The argument did not serve to limit the trial court in its sentencing choices, and defendant does not cite authority holding otherwise. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported "by argument and, if possible, by citation of authority"].) We know of no such authority.
As we have explained, defendant's prolongation of the false imprisonment beyond the rape reveals that his intent with respect to false imprisonment went beyond the rape. The trial court did not err by imposing an unstayed term for false imprisonment.
III
Defendant further contends we must vacate the fines and assessments imposed by the trial court because the trial court did not determine his ability to pay them.
When the trial court sentenced defendant, it imposed the following fines and assessments:
• a $300 restitution fine under section 1202.4, subdivision (b);
• a $300 parole revocation restitution fine under section 1202.45, subdivision (a);
• a $160 court operations assessment under section 1465.8, subdivision (a);
• a $120 court facility assessment under Government Code section 70373, subdivision (a)(1);
• a $553 booking fee
• a $1,300 assessment for the victim's SART exam; and
• a $300 sex offense conviction fee under section 290.3.
After imposing the fines and assessments, the trial court said: "All other fines and fees are waived. The Court has considered the defendant's financial circumstances in imposing these fines." Neither party acknowledges this statement by the trial court and therefore the parties fail to consider the significance of the statement on the ability-to-pay issue. We also note defendant does not claim he lacks the ability to pay or that the trial court did not sufficiently investigate his ability to pay; instead, he argues only that the trial court did not determine his ability to pay.
Defendant now contends we must vacate the imposed fines and assessments and remand for a determination of whether he has the ability to pay them. In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining the defendant's ability to pay. (Id. at pp. 1168, 1172.) Here, however, the record contradicts defendant's argument that the trial court did not determine his ability to pay. The probation report provided the trial court with information about defendant's physical and financial circumstances. According to the probation report, defendant was 25 years old, had a job before his incarceration, and was healthy at the time of the report. He had no outstanding debts and no assets. The trial court stated that it had reviewed the probation report. At sentencing, the trial court reduced the recommended restitution fine and the accompanying parole revocation fine from $3,000 to $300. On this record, Dueñas is distinguishable because although the trial court did not use the words "ability to pay," it clearly considered defendant's financial circumstances in imposing the fines and assessments. Accordingly, we need not consider the parties' additional arguments concerning forfeiture and other authority calling the Dueñas decision into question.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
DUARTE, J.