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People v. Ponce

California Court of Appeals, Fifth District
Aug 2, 2023
No. F084361 (Cal. Ct. App. Aug. 2, 2023)

Opinion

F084361

08-02-2023

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR JOSEPH PONCE, Defendant and Appellant.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. BF181930A. John S. Somers, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, ACTING P. J.

INTRODUCTION

Defendant Arthur Joseph Ponce stands convicted of kidnapping with intent to commit rape, three forcible sex offenses, assault with a deadly weapon, criminal threats, domestic violence resulting in a traumatic condition, and child endangerment. The jury also found true that he personally used a deadly weapon during the commission of kidnapping for rape, during the commission of the forcible sex offenses, and during the commission of the criminal threats. As for the forcible sex offenses, the jury returned true findings under Penal Code section 667.61, subdivision (e)(1) and (3) (the One Strike law).

All further statutory references are to the Penal Code except as otherwise noted.

Defendant asserts five arguments on appeal. First, as to kidnapping with the intent to commit rape, he asserts the evidence was insufficient to establish that the victim was "carried away . . . against her will" or to establish that he formed the specific intent to commit rape "at the time the kidnapping [began]." He argues that conviction should be reversed. Second, as to the personal-use enhancements and the forcible sex offenses, there was insufficient evidence he used a knife in the commission of those crimes and so those enhancements should be stricken. Third, because of the insufficiency of the evidence of kidnapping and the insufficiency of the evidence of personal use of a knife, the section 667.61 enhancements attached to the forcible sex offenses should be stricken. Fourth, the section 12022, subdivision (b)(1) enhancements to counts 1, 2, 3, 4, and 6 must be stricken because "the knife use circumstance was used to invoke the sentencing scheme under section 667.61." Fifth, the abstract of judgment must be corrected to specify how the trial court arrived at the amount of fees imposed pursuant to section 1465.8 and Government Code section 70373.

He also contends there was insufficient evidence of "simple kidnapping," the lesser included offense to kidnapping with intent to commit rape.

The People argue the evidence demonstrated the victim did not consent to the movement, defendant intended to commit rape when he kidnapped her, and defendant personally used a knife. Hence, the conviction for kidnapping with intent to rape and the section 667.61 enhancements attached to the forcible sex offenses should stand. The People agree, however, that the trial court erred when it also imposed the personal-use enhancements attached to the forcible sex offenses and concede that those enhancements should be stricken. The People also agree the abstract of judgment should be corrected to accurately reflect the section 1465.8 and Government Code section 70373 fees imposed.

We strike the personal-use enhancements on three of the counts and order the abstract of judgment corrected as to the court security fee and criminal conviction assessment fee. The judgment is otherwise affirmed.

PROCEDURAL SUMMARY

On January 29, 2021, the Kern County District Attorney filed an information charging defendant with kidnapping Jane Doe with the intent to commit rape (§ 209, subd. (b)(1); count 1); rape of Jane Doe (§ 261, subd. (a)(2); count 2); unlawful oral copulation with Jane Doe (§ 287, subd. (c)(2)(A); count 3); unlawful sexual penetration against the will of Jane Doe (§ 289, subd. (a)(1)(A); count 4); assault with a deadly weapon upon Jane Doe (§ 245, subd. (a)(1); count 5); making criminal threats (§ 422; count 6); inflicting corporal injury resulting in a traumatic condition upon Jane Doe (§ 273.5, subd. (a); count 7); and willful cruelty to a child (§ 273a, subd. (b); count 8). The information alleged a weapon enhancement pursuant to section 12022, subdivision (b)(1) with respect to counts 1, 2, 3, 4, and 6, and both weapon and kidnapping enhancements pursuant to section 667.61, subdivision (e) with respect to counts 2, 3, and 4.

On March 23, 2022, a jury found defendant guilty of each of the charged crimes. The jury also found true both the weapon and kidnapping enhancements recited above, as well as numerous factual predicates relevant to sentencing under California Rules of Court, rule 4.421.

The trial court sentenced defendant on April 21, 2022, to an aggregate term of 75 years to life in prison as follows: on count 1, life with a minimum parole eligibility of seven years, enhanced by one year pursuant to section 12022, subdivision (b)(1); on each of counts 2, 3, and 4, 25 years to life, each enhanced by one year pursuant to section 12022, subdivision (b)(1); on count 5, four years (the upper term); on count 6, three years (the upper term); on count 7, four years (the upper term); and on count 8, to 180 days in the Kern County jail. The sentences on counts 1, 5, 6, and 7, as well as the sentences on each of the use enhancements, were stayed pursuant to section 654. The sentences on counts 2, 3, and 4 were imposed consecutively, while the sentence on count 8 was imposed concurrently.

Defendant timely filed a notice of appeal on May 17, 2022.

FACTUAL SUMMARY

Defendant was the boyfriend of the victim, Jane Doe, and the father of her infant son, who was two months old at the time. Defendant had a history of drug abuse. He abused Jane Doe physically and verbally on numerous occasions.

On July 28, 2020, defendant was living with Jane Doe, along with her parents, siblings, and grandparents, in Bakersfield. Defendant stayed home from work that day because Jane Doe's mother was not going to work and defendant did not want Jane Doe talking to her mother and telling her mother "what [was] going on."

Defendant sent Jane Doe text messages, even when they were in the same room, because he did not want anyone to hear what he was saying to her. The text messages started at 9:11:55 a.m. and were both vulgar and angry.

Defendant and Jane Doe went to the Department of Motor Vehicles to put a car in their name. Defendant's anger persisted. On the way to that business, defendant slapped Jane Doe on her face. Once at the business, defendant did not want to enter it because there were too many people, and he was yelling at Jane Doe. Defendant wanted to leave so that he could "do what he wants pretty much." On the way back to her family's home, Jane Doe was upset and was crying. Defendant told her to "wipe away [her] tears" so her parents would not know "that anything was happening."

Back at the house, defendant continued sending text messages to Jane Doe. He directed her to get $20. She attempted to obtain the money from a family member to avoid defendant later calling her names and hitting her when they were alone. When she was unable to get the money, defendant sent a text to her stating, "So no f[***]ing money, you dumb bitch," and "F[***] you. Where [sic] f[***]ing stuck here." Defendant told her to get the baby ready so they could leave. Defendant continued sending multiple foul and threatening text messages to Jane Doe-including one saying, "If you don't make me happy, I'm going to beat you tell [sic] you bleed." That statement made her sad because she knew he was telling the truth; he had done it before. Defendant then demanded that they leave.

Jane Doe's family noticed her distress and told defendant she would not leave with him. Defendant responded by grabbing the baby and running out to the car. Jane Doe followed telling defendant to return the baby. Defendant drove away with the baby in the car.

None of the kidnapping charges involve defendant and Jane Doe's son, as there was no court order or agreement limiting defendant's custody of the baby.

When Jane Doe texted and called defendant and asked him to bring the baby back, defendant responded that he would not, and said if Jane Doe wished to see her child, she could come with him. Jane Doe was crying throughout these conversations and repeatedly telling defendant she did not want to go with him. She knew if she went with him, he would hurt her. She was more scared for her child. Jane Doe called the police to report defendant had left with the child.

After an extended period of Jane Doe pleading with defendant to return her child, defendant parked around the corner from the house, and told Jane Doe that if she wanted to check on her child, she could come around the corner to do so. Jane Doe told defendant repeatedly she did not want to leave with him and testified this was because she knew from prior experience defendant would beat her once they left. However, worried about her child, Jane Doe went out to the car to check on the baby. The baby was in a car seat in the middle of the back seat. Defendant was sitting in the driver's seat. Defendant told her to look at the child.

When Jane opened the rear driver's side door and leaned into the car, defendant- who, at six feet seven inches tall, was much larger than Jane Doe-got out of the car, approached her from behind, and began shoving her into the car. Jane Doe told defendant that if he stopped pushing her, she would get in the car. Jane Doe did not want defendant to hurt her or the baby by pushing her in. Jane Doe sat down in the back seat, and defendant shut the door, climbed into the car, and drove away.

Defendant drove the car to a neighborhood where he parked the car on the street and then turned around to yell at Jane Doe. He slapped her in the face, and then produced a knife. Defendant put the knife to Jane Doe's neck, while yelling at her and threatening to kill her. He also brandished the knife at Jane Doe's stomach and face and slapped her during this exchange. After threatening her, he calmed down and told her to get in the front seat. Jane Doe complied. After climbing in the front seat, defendant punched Jane Doe in her thigh and threatened to "kill [her] and chop [her] up." Defendant then drove away, continuing to yell at Jane Doe as he drove.

Jane Doe described the weapon as a "machete" in her testimony, but also testified the knife was only six to seven inches long.

Defendant next drove to an industrial park. While on the way, he repeatedly asked Jane Doe what she was "going to do to make him happy," which Jane Doe understood from prior interactions to mean he wanted her to have sex with him. Jane Doe told him numerous times on the drive, while crying, that she did not want to do that. Defendant parked the car and forcibly raped Jane Doe in the back seat of the car. During the rape, defendant choked, punched, and hit Jane Doe, and shoved her head into the roof of the car. Jane Doe repeatedly asked defendant to stop. Jane Doe testified the knife remained somewhere in the front seat of the car during the rape.

After the rape, defendant and Jane Doe drove to a liquor store. Defendant went into the store to buy beer, at which point Jane Doe called her mother and told her mother she had been raped. Jane Doe's mother contacted police, who found Jane Doe and defendant at a park a short while later. Defendant was arrested. He was interviewed by the police and acknowledged he had had sex with Jane Doe even though he knew Jane Doe did not want to have sex with him. During the interview, he said, "Did she say okay because of fear? Probably." and "Did she want to do it? Probably not."

DISCUSSION

I. Count 1 - Kidnapping with Intent to Commit Rape

A. Standard of Review

On appeal, when reviewing the sufficiency of the evidence to support a conviction (see People v. Jimenez (2015) 242 Cal.App.4th 1337, 1353), or an enhancement (see People v. Olguin (1994) 31 Cal.App.4th 1355, 1382), the question is whether, after viewing the evidence in the light most favorable to the judgment, there is evidence that is"' "reasonable, credible, and of solid value," '" from which any rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Banks (2015) 61 Cal.4th 788, 804; see Jackson v. Virginia (1979) 443 U.S. 307, 319.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) " '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 . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.) Further, "[a]n appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence," so long as they are reasonable. (People v. Maury (2003) 30 Cal.4th 342, 396; see People v. Penunuri (2018) 5 Cal.5th 126, 147.)

B. Substantial Evidence Supports Defendant's Conviction for Kidnapping With Intent to Commit Rape

Since we conclude sufficient evidence supports defendant's conviction for kidnapping with intent to commit rape, there is no need to address defendant's argument the evidence was insufficient to support the lesser included offense of "simple kidnapping."

Any person who "kidnaps or carries away an individual to commit . . . rape, oral copulation, sodomy," or a number of other enumerated crimes "shall be punished by imprisonment in the state prison for life with the possibility of parole." (§ 209, subd. (b)(1).) This applies where "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b)(2).)

1. Sufficient Evidence Established Jane Doe Did Not Consent

Defendant argues there is insufficient evidence to support kidnapping for rape because there is not substantial evidence showing she did not consent to getting in the car.

The evidence presented at trial showed defendant was angry with Jane Doe, had threatened to "beat [her]" until she "bleed[s]" unless "you . . . make me happy," and had already struck her earlier that same day. Jane Doe testified she told defendant repeatedly she did not want to leave with him. She also testified she was afraid for her child after defendant took him. When defendant finally coaxed Jane Doe to leave the safety of her house-knowing full well she did not want to go anywhere with him-he physically pushed her into the back seat until she said she would go with him. She only consented to climb into the car because she was afraid defendant might hurt her or the baby by his pushing her in. This is certainly sufficient to show Jane Doe did not actually consent to go with defendant: in the language of the statute, defendant "forcibly, or by any other means of instilling fear" (§ 207, subd. (a)), compelled Jane Doe to enter the car and then drove her away. "Consent induced by fear is no consent at all." (People v. Washington (1962) 203 Cal.App.2d 609, 610.) The jury was instructed that, to convict defendant, it must find Jane Doe "did not consent to the movement" and that defendant "did not actually and reasonably believe that [Jane Doe] consented to the movement." The jury's verdict was supported by substantial evidence.

Even assuming arguendo Jane Doe could have been construed to have consented to leaving with defendant initially, and that initial consent was not coerced through threats or fear, defendant certainly completed a kidnapping of Jane Doe when he stopped the car, threatened to kill her with the knife he brandished at her, and then drove her away again. (People v. Camden (1976) 16 Cal.3d 808, 814 ["[A] violation of section 207 will not be reversed on appeal if supported by substantial evidence that although initial entry into a vehicle was voluntary, the victim was subsequently restrained therein by means of threat or force while asportation continued."].)

2. Sufficient Evidence Established Defendant Intended to Commit Rape When He Kidnapped Jane Doe

Defendant argues there was not substantial evidence that he had an intent to commit a sex offense at the time any kidnapping began.

On this issue, the jury was instructed that to prove defendant was guilty of kidnapping for the purpose of rape, the People must prove (1) defendant intended to commit rape, (2) acting with that intent, defendant took, held, or detained another person by using force or by instilling a reasonable fear, (3) using that force or fear, defendant moved the other person, or made the other person move, a substantial distance, (4) the other person was moved or made to move a distance beyond that merely incidental to the commission of a rape, and (5) when that movement began, the defendant already intended to commit rape. (CALCRIM No. 1203.) The evidence clearly supports the jury's conclusion defendant had the specific intent to rape Jane Doe when the relevant movement began. Defendant repeatedly told Jane Doe that morning she needed to make him happy, which Jane Doe testified meant he wanted to have sex. He then compelled Jane Doe to get in the car with him, knowing very well she did not want to leave the house. He threatened her with a knife, and then drove to a secluded spot and forced her to have sex with him, despite her repeatedly telling him she did not want to have sex.

II. Sufficient Evidence Established Defendant Used a Knife in the Commission of the Forcible Sex Offenses in Counts 2, 3, and 4

Defendant argues the three forcible sex offenses in counts 2, 3, and 4 were each enhanced based on the allegation defendant kidnapped Jane Doe and personally used a knife during the crime. He argues there is not sufficient evidence he used a knife in the commission of the forcible sex offenses.

The trial court commented during sentencing: "There is a second proposed circumstance in aggravation or an additional one by probation that the defendant personally used a deadly weapon during the commission of the crime. That, however, will be a dual use of facts with the allegation found as an enhancement. So I will not find that to be the case or consider that one." Based on a review of the probation report, it appears this is a reference to the enhancement under section 12022, subdivision (b)(1) on counts 2, 3, and 4. However, the trial court then later stated the sentence on count 2 was to be "enhanced by one year under Penal Code Section 12022[, subdivision ](b)(1), but punishment for enhancement is stayed under Section 654 until the successful completion of the sentence imposed above and permanently thereafter. That finding and [section] 654 will apply to the [section] 12022[, subdivision ](b)(1) on all counts on which it was alleged and found true." Despite its earlier statement, it appears the trial court's ultimate order was to include the section 12022, subdivision (b)(1) enhancements on counts 2, 3, and 4.

Defendant cites to three cases-People v. Masbruch (1996) 13 Cal.4th 1001 (Masbruch), People v. Jackson (1980) 110 Cal.App.3d 560 (Jackson), and People v. Camacho (1993) 19 Cal.App.4th 1737 (Camacho)-arguing that, because defendant did not have the knife in hand during the occurrence of the rape, he did not "use" a deadly weapon during the commission of the crime. We are not convinced.

In Masbruch, a defendant assaulted and tied up two women while brandishing a firearm, and then proceeded to ransack the house looking for valuables. (Masbruch, supra, 13 Cal.4th at pp. 1003-1005.) He was in the house for over an hour, and ultimately raped one of the women before leaving. (Id. at pp. 1004-1006.) While he brandished the firearm during the initial encounter, he did not consistently have the gun in his hand during the rape. (Ibid.) The Supreme Court noted "the jury may consider a 'video' of the entire encounter," and was "not limited to a 'snapshot' of the moments immediately preceding a sex offense." (Id. at p. 1011.) Therefore, "a jury could reasonably conclude that although defendant's presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter." (Ibid.)

The defendant in Jackson argued that, since the scissors he used to threaten the victim were in his pants' pocket during the rape, and his pants were lying on the floor, he had not "used" a weapon in the commission of the sexual assault crime. (Jackson, supra, 110 Cal.App.3d at pp. 564-565, 568-569.) The appellate court rejected this argument because the victim testified she was afraid for her safety and continued to be afraid throughout the encounter. (Ibid.)

Camacho involved rapes in which the defendants initially brandished guns at the victim but did not have the firearms in their hands during the actual rapes. (Camacho, supra, 19 Cal.App.4th at pp. 1741, 1747-1748.) The appellate court rejected the argument that there was insufficient evidence of the defendants' "use" of weapons, finding the victim reasonably believed the defendants had "instant access" to their firearms. (Id. at pp. 1747-1748.)

Here, the evidence showed defendant kidnapped Jane Doe against her will, forced her into a car, drove her away, stopped the car and threatened her by pressing a knife against her neck, stomach, and face, restarted the car and drove to a second location, and then raped her. Further, the evidence showed that defendant is six feet seven inches tall, could easily reach anywhere in the car, and that Jane Doe believed the knife remained within the car at all times. In other words, defendant was capable of obtaining the knife again and harming Jane Doe with it, and Jane Doe reasonably feared this. Defendant used the fear this reasonably instilled to force Jane Doe's compliance during the rape.

Sufficient evidence established defendant used a knife in the commission of the sexual assault crimes.

III. The Section 667.61 Enhancements Attached to the Forcible Sex Offenses Need Not Be Stricken

As previously stated, defendant asserts that the insufficiency of the evidence of kidnapping with intent to commit rape and the insufficiency of the evidence of personal use of a knife require the section 667.61 enhancements attached to the forcible sex offenses be stricken. Having found the evidence of kidnapping with intent to commit rape and personal use of a weapon sufficient, we reject defendant's argument.

IV. The Section 12022, Subdivision (b)(1) Enhancements Imposed on Counts 2, 3, and 4 Must Be Stricken

Section 667.61 imposes an enhanced punishment when a person, in the commission of certain sexual assaults, kidnaps the victim in violation of section 209 and personally uses a dangerous or deadly weapon. (§ 667.61, subd. (e)(1), (3).) Both of these circumstances were pled and proved and both were required to impose the enhanced punishment allowed under section 667.61. Section 667.61, subdivision (f) provides that "if only the minimum number of qualifying circumstances required for One Strike sentencing treatment have been pled and proved, they must be used as the basis for imposing the One Strike term rather than to impose lesser enhancements or punishment under any other law." (People v. Mancebo (2002) 27 Cal.4th 735, 742.)

Defendant initially contended that the section 12022, subdivision (b)(1) enhancements must be stricken "from all counts" because "the knife use circumstance was used to invoke the sentencing scheme under section 667.61."

The People argue the section 667.61 enhancements are attached only to counts 2, 3, and 4 and so defendant's argument is valid only as to the section 12022, subdivision (b)(1) enhancements on those three counts.

Defendant concedes in reply that the trial court did not err in imposing enhancements pursuant to section 12022, subdivision (b)(1) on counts 1 and 6.

We strike the section 12022, subdivision (b)(1) enhancements imposed on counts 2, 3, and 4. This will not change the length of defendant's sentence, however, as the trial court had stayed the sentence associated with these enhancements.

V. The Abstract of Judgment Must be Amended

Defendant contests the amount shown on the abstract of judgment for the mandatory assessments imposed pursuant to section 1465.8 and Government Code section 70373. The People agree but note the trial court should have imposed a $320 court security fee pursuant to section 1465.8 and a $240 criminal conviction assessment fee pursuant to Government Code section 70373, instead of the $160 and $120, respectively, which it actually imposed. In reply, defendant concedes this higher amount is the correct calculation. Indeed, section 1465.8 requires a $40 fee "be imposed on every conviction for a criminal offense," and Government Code section 70373 requires a $30 fee also "be imposed on every conviction for a criminal offense." (See § 1465.8, subd. (a)(1); Gov. Code, § 70373, subd. (a)(1).) Defendant was convicted of eight separate crimes in this case. These assessments are not stayed, even when a sentence is stayed pursuant to section 654. (See People v. Crittle (2007) 154 Cal.App.4th 368, 370 [holding § 654 "does not apply to a court security fee because that fee is not punishment"]; see also People v. Sencion (2012) 211 Cal.App.4th 480, 484 [collecting cases].) Therefore, the correct assessment pursuant to section 1465.8 is $320 and pursuant to Government Code section 70373 is $240.

We remand the matter for the limited purpose of correcting the abstract of judgment.

DISPOSITION

The enhancements imposed pursuant to section 12022, subdivision (b)(1) on counts 2, 3, and 4 are stricken. The matter is remanded to the trial court for the limited purpose of issuing an amended abstract of judgment reflecting that these enhancements are stricken and imposing the correct assessments designated above pursuant to section 1465.8 and Government Code section 70373. In all other respects, the judgment is affirmed.

WE CONCUR: SMITH, J., MEEHAN, J.


Summaries of

People v. Ponce

California Court of Appeals, Fifth District
Aug 2, 2023
No. F084361 (Cal. Ct. App. Aug. 2, 2023)
Case details for

People v. Ponce

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTHUR JOSEPH PONCE, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Aug 2, 2023

Citations

No. F084361 (Cal. Ct. App. Aug. 2, 2023)