Opinion
B160382.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. ARTURO PRIETO, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.
Appellant Arturo Prieto was tried before a jury and convicted of attempted forcible rape and forcible penetration with a foreign object. (Pen. Code, §§ 664/261, subd. (a)(2), 289, subd. (a)(1).) He contends: (1) the trial court violated his right to due process when it gave CALJIC No. 2.62, regarding adverse inferences to be drawn from a defendants testimony; (2) his conviction for penetration with a foreign object must be reversed because the court did not instruct the jury on sexual battery by restraint under section 243.4 as a lesser included offense; and (3) he is entitled to a new sentencing hearing because the court did not state its reasons for imposing full strength consecutive sentences under section 667.6. We agree the case must be remanded for resentencing, but otherwise affirm the judgment.
FACTS
Kimberly A. met David Torres while out dancing at a nightclub. Appellant was with Torres that night and joined him in a conversation with Kimberly and her friend Shanee B. after the club closed. Although the women at first refused an invitation to go "party" with Torres, appellant and another man, they eventually accepted appellants offer to go to his motel so that Kimberly could use the bathroom. Once at the motel, appellant rented a room while pretending to pick up his key. Appellant and Kimberly then went to the room while the others waited in the parking lot.
When Kimberly finished using the bathroom, appellant grabbed her and pinned her to the bed. He pulled down her pants and stuck his finger insider her vagina. After pulling down his own pants and forcing her to fondle him, he placed his penis in her vagina.
Shanee B. became concerned that Kimberly was taking so long and went to the room. She began banging on the door when she heard Kimberly screaming and telling appellant to stop. When Kimberly managed to open the door, Shanee entered the room and saw appellant pulling up his pants and buckling his belt. Kimberly told Shanee that appellant had raped her. David Torres came into the room and told appellant, "Lets get out of here."
Kimberly called 911 from the front office of the motel and said that appellant had "tried" to rape her. Appellant followed and grabbed the telephone, telling the operator that Kimberly was drunk and crazy. He left the motel with his friends before the police arrived.
Appellant testified at trial and claimed that he was sitting on the motel room bed when Kimberly came out of the bathroom. She sat down next to him and didnt say anything. Appellant asked her if she was okay, and they heard David Torres, to whom Kimberly was attracted, knocking at the door. Kimberly began to scream and said that appellant had raped her, even though he never touched her.
DISCUSSION
CALJIC No. 2.62
The trial court gave CALJIC No. 2.62, which advised the jurors that they could draw an adverse inference from appellants failure in his testimony to explain or deny evidence against him. Appellant argues that the instruction should not have been given because he explained or denied all of the evidence of his guilt. We conclude that any error was harmless.
Contrary to appellants suggestion, CALJIC No. 2.62 did not advise the jury that it could draw an adverse inference based solely on conflicts between his account of the events and Kimberly A.s. Rather, the instruction applied only if the jury found that appellant had failed to explain or deny evidence: "If you find that defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may be reasonably be drawn therefrom those unfavorable to the defendant are the more probable." (CALJIC No. 2.62, italics added.) Portions of the instruction were favorable to the defense: "The failure of a defendant to deny or explain evidence against him does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [P] If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence." (CALJIC No. 2.62.)
This case was essentially a credibility contest between appellant and Kimberly. CALJIC No. 2.62 was not particularly damaging to appellant because there was little, if any, incriminating evidence that he had failed to explain or deny-the real issue was whether the jury believed his story rather than Kimberlys version of events. Appellants claim that he never touched Kimberly and that she began screaming and accusing him of rape for no apparent reason was not a plausible one, and it is not surprising the jury rejected it. It is not reasonably probable the jury would have reached a verdict more favorable to appellant if CALJIC No. 2.62 had not been given. (People v. Saddler (1979) 24 Cal.3d 671, 683, 156 Cal. Rptr. 871, 597 P.2d 130; People v. Ballard (1991) 1 Cal.App.4th 752, 756-757.)
Sexual Battery by Restraint as Lesser Included Offense
Appellant argues that his conviction of forcible penetration with a foreign object must be reversed because the trial court did not instruct the jury on sexual battery by restraint as a lesser included offense. We disagree.
Assuming without deciding that sexual battery by restraint is a lesser included offense of forcible penetration with a foreign object, no such instruction was warranted in this case. A court is required to give instructions on lesser included offenses only when the evidence "would justify a jury in acquitting on the greater offense, but convicting on the lesser." (People v. Babich (1993) 14 Cal.App.4th 801, 807.) Here the evidence supplied no basis for concluding that appellant had not committed the charged offense of penetration with a foreign object, but had committed a sexual battery.
The crime of forcible penetration with a foreign object requires proof that (1) the defendant caused the genital or anal opening of another person to be penetrated, however slightly, by a foreign object, instrument or device, including a body part other than a sexual organ; (2) the penetration was against the will of the other person; (3) the penetration was accomplished by force, violence, duress, menace or fear of immediate and unlawful bodily harm; and (4) the penetration was done for the purpose of sexual arousal, sexual gratification or sexual abuse. ( § 289, subds. (a)(1), (k)(1) & (2).) By contrast, sexual battery by restraint is committed when the defendant "touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse." ( § 243.4, subd. (a).)
The forcible penetration count was based on Kimberly A.s testimony that during the sexual assault, appellant pulled down her pants and placed his finger in her vagina. She was unequivocal that penetration had occurred. Appellant denied touching her at all and claimed she had entirely fabricated her claim of a sexual assault. If the jury believed Kimberly, the elements of forcible penetration under section 289, subdivision (a) were established. If appellants version of events were credited, he would be entitled to acquittal. There was no middle ground on this count, and appellant was not entitled to an instruction on sexual battery as a lesser included offense. (See People v. Vargas (2001) 91 Cal.App.4th 506, 546-549.)
Sentencing
The trial court imposed an aggregate prison sentence of six years, consisting of the three-year lower term on the forcible penetration count and a consecutive, three-year middle term on the attempted rape count. Appellant argues that the case must be remanded because the court did not state reasons for imposing full strength consecutive sentences.
Under section 1170.1, subdivision (a), consecutive subordinate sentences are ordinarily limited to one-third of the middle term for the offense. Section 667.6, subdivision (c) establishes an exception to this general rule, and allows the court to instead impose a full strength consecutive sentence for each conviction of an enumerated violent sex offense. (People v. Jones (1988) 46 Cal.3d 585, 593, 250 Cal. Rptr. 635, 758 P.2d 1165; People v. Belmontes (1983) 34 Cal.3d 335, 346, 193 Cal. Rptr. 882, 667 P.2d 686; People v. Pelayo (1999) 69 Cal.App.4th 115, 123.) Appellants conviction of forcible penetration under section 289, subdivision (a) qualified as a violent sexual offense for purposes of section 667.6, subdivision (c). His conviction of attempted rape did not.
Although the trial court did not specify the basis for the sentence imposed in appellants case, it appears to have relied upon section 667.6, subdivision (c). This section permitted the court to sentence appellant to a full strength consecutive term on the forcible penetration count in addition to whatever term it imposed on the attempted rape count. (People v. Jones, supra, 46 Cal.3d at p. 600 [when defendant is convicted of more than one felony, but only one violent sex offense under section 667.6, subd. (c), court may impose full strength, consecutive term for violent sex offense].) Before it could do so, however, the court was required to make two discretionary sentencing choices: whether to impose consecutive rather than concurrent sentences, and whether to impose sentence under section 667.6, subdivision (c), rather than the more lenient provisions of section 1170.1, subdivision (a). A statement of reasons was required for each of those choices. (Cal. Rules of Court, rules 4.406(b)(5) & (6), 4.426(b); People v. Belmontes, supra, 34 Cal.3d at p. 347; People v. Pock (1993) 19 Cal.App.4th 1263, 1277.)
The court did not state any reasons for imposing consecutive sentences, much less for sentencing appellant under the harsher provisions of section 667.6, subdivision (c). This was error, although it was not objected to by trial counsel and was arguably waived. (People v. Scott (1994) 9 Cal.4th 331, 354-355, 885 P.2d 1040.) Anticipating this problem, appellant argues that counsel provided ineffective assistance by remaining silent after the court indicated its intent to impose full strength consecutive sentences.
Without resolving the ineffective assistance of counsel claim, we elect to reach appellants arguments on the merits. The Attorney General has not asserted waiver and agrees the case should be remanded because the trial court made an insufficient record to support its sentencing choices. This concession is appropriate, given that there is a second problem with the sentence that is cognizable without an objection and requires a remand for clarification.
In addition to its failure to state reasons for its sentencing choices, the court designated the sentence on the forcible penetration count as the "principal" term, implicitly treating the sentence on the attempted rape count as the "subordinate" term. But attempted rape is not a violent sex offense under section 667.6, subdivision (c), and a subordinate consecutive sentence on that count would be limited to one-third of the middle term (one year). ( § 1170.1, subd. (a).) The imposition of a full strength sentence on a subordinate count governed by section 1170.1, subdivision (a) is an unauthorized sentence that may be addressed on appeal even when there has been no objection in the trial court. (See People v. Scott, supra, 9 Cal.4th at p. 354.)
The designation of the attempted rape count as the subordinate count might seem a somewhat technical error in a two-count case where the court has elected to impose a full strength consecutive sentence under section 667.6, subdivision (c) on the second count. But the structuring of the sentence here raises concerns that the court did not correctly apply section 667.6, subdivision (c). We also observe that the prosecutor twice described the case as one requiring full strength consecutive sentences because "force" was involved. Though the court did not expressly agree with this erroneous statement of the law, it imposed the full strength sentence requested by the prosecution without indicating that it was making a discretionary sentencing choice in doing so.
These circumstances convince us that a new sentencing hearing is required. On remand, the court should consider whether to impose consecutive or concurrent sentences and whether to sentence appellant under section 667.6, subdivision (c), and should state reasons for its sentencing choices on the record. Although the aggregate sentence may not exceed the six years originally imposed (People v. Monge (1997) 16 Cal.4th 826, 843, 941 P.2d 1121), the court may reconsider other aspects of its sentence (People v. Sanchez (1991) 230 Cal. App. 3d 768, 771-772, 281 Cal. Rptr. 459). We express no opinion as to the appropriate sentence on remand.
Finally, it is unnecessary to reach appellants contention that under Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348, he was entitled to a jury determination of whether his case fell within the discretionary sentencing provisions of section 667.6, subdivision (c) or the mandatory sentencing provisions of section 667.6, subdivision (d). Section 667.6, subdivision (d) only applies to cases in which the defendant has been convicted of more than one enumerated violent sexual offense. (People v. Jones, supra, 46 Cal.3d at p. 594, fn. 5.) Appellant was convicted of a single violent sexual offence, and section 667.6, subdivision (d) cannot be applied to his case under any circumstances.
DISPOSITION
The convictions are affirmed. The sentence is vacated and the case is remanded for resentencing consistent with the views set forth in this opinion.
We concur: GILBERT, P.J., YEGAN, J. --------------- Notes: All statutory references are to the Penal Code.