Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA083256 Charles Horan, Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Long Quan Qu appeals from the judgment entered following his convictions by jury on three counts of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a); counts 1, 7 & 10), count 2 – false imprisonment by violence (Pen. Code, §§ 236, 237); five counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2); counts 3, 5, 8, 11 & 13), and five counts of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 4, 6, 9, 12 & 14). The court sentenced appellant to prison for 43 years eight months. We modify the judgment in part, affirm it in part, and remand the matter with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed except as to count 4, established that on the morning of February 13, 2008, appellant awakened his girlfriend and cohabitant, Jane Doe, then asked her if she was smiling at him. Doe replied no, then appellant punched her hard in the face five or six times with his fist (count 1). Appellant told Doe not to smile anymore. Doe told appellant to stop hitting her, but he told her not to say anything. When appellant hit Doe for smiling, he seemed like a different person.
Doe’s preliminary hearing testimony as to the present offenses was admitted into evidence at trial in lieu of her live testimony. The preliminary hearing magistrate ordered that the victim herein be referred to by the pseudonym Jane Doe.
That afternoon, appellant asked Doe to have sex with him but she declined. He used his hand to push her to her knees, then put his penis in her mouth and made her orally copulate him, pressing her head with his hand. Appellant did this for five minutes. Doe did not resist because she was very afraid. Appellant later, using a somewhat mean tone of voice, ordered her to lie down on a sofa, got on top of her, and forcibly put his penis into her vagina (count 4), causing her great pain.
Doe testified that when appellant was having sexual intercourse with her, she did not cry or try to tell him anything “because from the very start, even before he had oral sex on me, I had already told him no.” Appellant’s behavior on February 13, 2008 was unusual for him, and Doe was shocked by it. Prior to February 13, 2008, appellant had struck Doe once, but had never forced her to have sex.
On February 15, 2008, appellant committed corporal injury upon Doe, forced her to orally copulate him, and raped her. On February 16, 2008, appellant forced her to orally copulate him and raped her. On February 17, 2008, appellant committed corporal injury upon Doe, forced her to orally copulate him, and raped her. On February 18, 2008, appellant forced Doe to orally copulate him and raped her. From February 13 through February 18, 2008, inclusive, appellant committed false imprisonment by violence upon Doe (count 2). All of the above offenses occurred in the apartment where appellant and Doe lived. On February 19, 2008, Doe escaped and went to a friend, Yuxuan Zhao, who took her to the police.
In defense, a learning center principal testified appellant was at the center from 8:45 a.m. to 11:00 a.m. on February 13, 2008, and from 8:45 a.m. to about 9:00 a.m. or 9:45 a.m. on February 19, 2008.
ISSUES
Appellant claims (1) the trial court erred by admitting into evidence Doe’s preliminary hearing testimony, (2) there was insufficient evidence supporting his conviction on count 4, (3) punishment on count 2 was barred by Penal Code section 654, and (4) the court erred in its imposition of various fines and the abstract of judgment must be amended.
DISCUSSION
1. The Trial Court Properly Admitted Into Evidence Doe’s Preliminary Hearing Testimony.
a. Pertinent Facts.
Doe testified at appellant’s May 18, 2009 preliminary hearing. The jury was sworn on November 16, 2009. On November 17, 2009, the court conducted a hearing on the admissibility at trial of Doe’s preliminary hearing testimony. El Monte Police Detective Daniel Glass testified as follows. Glass had been a police officer for 28 years and a detective for about eight years, and he was the investigating officer in this case. Glass had been in constant contact with Doe throughout this case.
On July 3, 2009, Glass received a letter from Doe indicating her father was sick in China and she needed to return to China to be with her family. The court read the letter and stated, “It just indicates the name of the sender, a contact phone number, local phone number, and then a contact number in China, fax number in China, [and] e-mail address.” The court stated the letter said: “Dear Detective Glass[:] [¶] I’m going back to China on July 5 because my father is sick. Thank you for helping me a lot. If you guys have any information about the case, please contact me and let me know. Thank you.” At some point Doe indicated to Glass that she intended to return to the United States after visiting her father. Glass did not send a subpoena to Doe and ask her to honor it, but testified “that was verbal only.”
Before Doe left for China, she always had been cooperative and had appeared in court when requested. Glass did not know Doe had a visa problem when she left. After Glass received Doe’s letter, Glass, using Doe’s contact number in China (i.e., the phone number indicated in Doe’s letter), spoke with her by phone while she was in China. Glass called her on August 26, September 10, September 14, September 22, November 9, and November 16, 2009 (the day before the hearing). Glass contacted her to determine when Doe would return to the United States. He tried to arrange for Doe’s return to the United States and asked her when she planned to return. Doe said she had a passport visa problem and could not return.
The court admitted this and all subsequent statements by Doe to Glass as nonhearsay on the issue of due diligence.
On November 16, 2009, Glass went to the Chinese Consulate and learned that there were no restrictions on the passport and the problem was not with the Chinese government but with the United States. Doe told Glass the United States would not give her a visa for her to enter the United States.
Glass determined Doe no longer resided where she had lived when she originally had reported the crimes and she did not reside with her parents in Temple City. Zhao told Glass that Doe had left the country. The local phone number listed in the letter pertained to a disconnected cell phone.
Appellant, during cross-examination at the hearing, asked Glass whether he did anything else to try to secure Doe’s attendance at trial. Glass replied he was instructed to “seek out the avenues of securing her opening a visa, ” but this proved unsuccessful given time constraints. Glass did not contact the Chinese and United States Consulates until November 16, 2009. He did not attempt to contact Doe using the email address indicated in her letter. During Glass’s phone conversations with Doe, he never asked her whether she would be available at trial by computer or other telecommunication methods, and Glass did not try to use those methods to obtain statements from her that could be used at trial.
Glass testified Doe was a citizen of China who was visiting the United States as a student. Doe had been in the United States about three years. Glass testified he believed that Doe was not a United States citizen and was not a permanent resident of the United States.
Glass denied he had contacted the United States Embassy. Glass then testified, “It was only the Chinese Consulate. I did make, upon returning to this court, an attempt to find out the information needed to go through the legal process for the victims of violent crime to allow her to come on a visa. That paperwork or process has not been started yet, to my knowledge.” Glass had just started that on November 16, 2009.
During redirect examination, the prosecutor asked Glass, “That process that you’ve talked about, are you clear on whether it would apply to this particular victim in this situation, or are you possibly thinking of a different victim in different situations?” Glass replied, “I’m unclear as to whether any of the visa processes could apply to [Doe] in this situation because I’ve never experienced it before.” Glass did not know if there was a treaty between the United States and China which would “allow this possible visa witness transaction to take place[.]” The prosecutor asked whether Glass was “only familiar possibly with the U.S. and Mexico and treaties that exist and possible avenues of getting witnesses or evidence from Mexico” and Glass replied, “Yes, I have some experience with those visas.” The prosecutor then asked, “So when you said that the visa process was started yesterday in this particular case, is that accurate?” Glass replied, “No. No process has been started, ” then testified, “It was my information seeking process.”
A district attorney’s investigator testified she contacted the United States Immigrations and Custom Enforcement (ICE) to locate Doe. ICE provided a printout indicating that in May 2004, Doe entered the United States, she was to remain in the United States until November 2004, and, on July 5, 2009, she left the United States. The printout did not reflect a reentry date, which the printout normally would have reflected if Doe had legally reentered the United States.
During argument, the parties disputed whether the People had shown due diligence in securing Doe’s attendance at trial. As part of that dispute, appellant urged the People had failed to make Doe available by teleconferencing, or via her computer by email “and a camera.”
The court found Doe was not a United States citizen but a citizen of China (i.e., the People’s Republic of China). The court concluded Doe was unavailable as a witness for purposes of Evidence Code section 240, subdivisions (a)(4) and (5), she was constitutionally unavailable, and her preliminary hearing testimony was admissible at trial.
b. Analysis.
Appellant claims the trial court violated his rights to confrontation and due process (1) by admitting Doe’s preliminary hearing testimony at trial, because the trial court erroneously concluded that the People had exercised reasonable diligence to secure Doe’s presence at trial and that she was unavailable, and (2) by precluding the presentation of Doe’s testimony by videoconferencing and/or related methods. We disagree for the reasons discussed below.
(1) Doe Was Statutorily Unavailable.
Evidence Code section 240, subdivision (a), states, in relevant part, “(a)... ‘unavailable as a witness’ means that the declarant is any of the following: [¶]... [¶] (4) Absent from the hearing and the court is unable to compel his or her attendance by its process. [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.” (Italics added.)
In the present case, there was substantial evidence that Doe was not a citizen of, and did not permanently reside in, the United States, that she was a citizen of China, and that, after July 5, 2009, she resided there with her family. Glass testified he did not know if there was a treaty between the United States and China which would “allow this possible visa witness transaction to take place[.]” (Italics added.) The prosecutor asked whether Glass was “only familiar possibly with the U.S. and Mexico and treaties that exist and possible avenues of getting witnesses or evidence from Mexico” (italics added) and Glass replied, “Yes, I have some experience with those visas.” (Italics added.) Fairly read, these colloquies indicated Glass (an experienced detective) was unaware of the existence of any treaties or other arrangements between the United States and China by means of which the People could have secured the attendance here of a witness in China. There is no dispute there were no treaties or agreements between the United States and China by means of which Doe’s presence here could have been compelled or facilitated.
In light of the above, the trial court correctly concluded Doe was unavailable for purposes of Evidence Code section 240, subdivision (a)(4); moreover, for purposes of that subdivision, the People did not need to demonstrate due diligence in securing her attendance at trial. (People v. Denson (1986) 178 Cal.App.3d 788, 793 (Denson); People v.St. Germain (1982) 138 Cal.App.3d 507, 517-518; People v. Ware (1978) 78 Cal.App.3d 822, 829, 837; see People v. Herrera (2010) 49 Cal.4th 613, 622-623 (Herrera).
Evidence Code section 240, subdivisions (a)(4) and (5) are mutually exclusive in that subdivision (a)(4) applies when there is no court process by which a witness’s attendance may be compelled, while subdivision (a)(5) applies when there is such a court process. (Denson, supra, 178 Cal.App.3d at pp. 792-793.) Moreover, unavailability under Evidence Code section 240 is established once any one of its subdivisions have been satisfied. (Evid. Code, § 240.) Accordingly, there is no need to further discuss subdivision (a)(5).
(2) Doe Was Constitutionally Unavailable.
(a) Applicable Law.
Even if a witness is unavailable for purposes of Evidence Code section 240, subdivision (a)(4), the witness must also be unavailable for purposes of appellant’s right to confrontation. (Herrera, supra, 49 Cal.4th at pp. 620-621, 623.)
In Herrera, our Supreme Court was presented with a right to confrontation challenge to the admissibility at trial of preliminary hearing testimony of a witness who, after the preliminary hearing, was deported to his native El Salvador and therefore absent from the trial. (Herrera, supra, 49 Cal.4th at pp. 620, 623, 628-629.) Herrera stated, “Although important, the constitutional right of confrontation is not absolute. [Citations.] ‘Traditionally, there has been “an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination....” [Citation.]’ [Citation.] Pursuant to this exception, the preliminary hearing testimony of an unavailable witness may be admitted at trial without violating a defendant’s confrontation right. [Citation.]
“This traditional exception is codified in the California Evidence Code. [Fn. omitted.] [Citation.] Section 1291, subdivision (a)(2), provides that ‘former testimony, ’ such as preliminary hearing testimony, [fn. omitted] is not made inadmissible by the hearsay rule if ‘the declarant is unavailable as a witness, ’ and ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’ Thus, when the requirements of section 1291 are met, the admission of former testimony in evidence does not violate a defendant’s constitutional right of confrontation. [Citation.]” (Herrera, supra, 49 Cal.4th at pp. 620-621.)
There is no dispute the requirements of Evidence Code section 1291, subdivision (a)(2) were satisfied in this case (including Doe’s unavailability under Evidence Code section 1291, subdivision (a)(2) by reason of her being unavailable under Evidence Code section 240, subdivision (a)(4)). The issue is whether Doe was constitutionally unavailable.
Herrera stated, “A witness who is absent from a trial is not ‘unavailable’ in the constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the witness’s presence at the trial. [Citation.] The United States Supreme Court has described the good faith requirement this way: ‘The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness... is a question of reasonableness. [Citation.].” (Herrera, supra, 49 Cal.4th at p. 622.)
The proponent of the evidence has the burden of showing that the witness is unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609 (Smith).) “We review the trial court’s resolution of disputed factual issues under the deferential substantial evidence standard [citations], and independently review whether the facts demonstrate prosecutorial good faith and due diligence [citations].” (Herrera, supra, 49 Cal.4th at p. 623.)
Herrera later stated, “we must consider what prosecutorial efforts will sustain a finding of unavailability when the absent witness was not in this jurisdiction but in another country.” (Herrera, supra, 49 Cal.4th at p. 623.) Herrera considered, inter alia, Barber v. Page (1968)390 U.S. 719 [20 L.Ed.2d 255] (Barber), Mancusi v. Stubbs (1972) 408 U.S. 204 [33 L.Ed.2d 293] (Mancusi), Smith, and People v. Sandoval (2001)87 Cal.App.4th 1425.
Barber involved a confrontation challenge to the admissibility of a preliminary hearing transcript at a state criminal trial where the preliminary hearing witness was serving a federal prison term in another state. (Barber, supra, 390 U.S. at p. 720.) Barber held the prosecution failed to establish the incarcerated witness’s unavailability because it had made “absolutely no effort to obtain his attendance by the cooperation of the federal authorities or a federal court [where such cooperation was available]. [Citation.]” (Herrera, supra, 49 Cal.4th at pp. 623-624.)
People v. Sandoval (2001)87 Cal.App.4th 1425, relied upon by appellant, involved a confrontation challenge to the admissibility of a preliminary hearing transcript at a California criminal trial where the preliminary hearing witness was deported to his native Mexico after the preliminary hearing. (Herrera, supra, 49 Cal.4th at p. 626.) The prosecutor had kept in contact with the witness, and the witness was willing to return for trial if he was given money to make the trip, including $100 so he could obtain a passport and visa for legal entry into the United States. The prosecution did not provide the financial assistance and did nothing more to secure the witness’s attendance at trial. (Id. at p. 626.)
Herrera stated, “Although acknowledging that the trial court had no power to compel the witness’s appearance at trial [citation], Sandoval found it highly significant that the United States and Mexico had a treaty... providing for cooperation in the prosecution of crimes and mutual assistance in obtaining witness testimony. [Citation.] Specifically, the treaty outlined several cooperative methods by which a Mexican resident’s testimony could be obtained, either in California or in Mexico. [Citation.] [Fn. omitted.] This development sufficiently distinguished the situation in Sandoval from that which existed... when Mancusi observed that the United States had not yet made agreements with foreign countries similar to the interstate agreements found in Barber. [Citations.] Because the treaty with Mexico represented such an agreement, the prosecution’s failure to pursue any of the cooperative methods outlined in the treaty was fatal to its showing of good faith.... Accordingly, Sandoval concluded the absent witness residing in Mexico was not unavailable in the constitutional sense. [Fn. omitted.]” (Herrera, supra, 49 Cal.4th at pp. 626-627.)
In a footnote, Herrera noted, “We note Sandoval suggested that good faith also required the prosecution to go beyond the treaty in trying to secure the absent witness’s presence. That part of its discussion, however, was based on additional facts not presented here, i.e., there, the deported witness had previously disclosed at the preliminary hearing that he was in the country illegally [citation], and the prosecution actually located him in Mexico and received assurance he would cooperate if provided the necessary funds [citation]. Sandoval observed that, in the face of such circumstances, ‘[t]he prosecution could have assisted [the witness] without reference or resort to the Treaty.’ [Citation.] Here, the prosecution was unable to establish contact with the absent witness. We therefore need not and do not decide what additional efforts, if any, might be constitutionally required to establish good faith in the event contact with an absent witness is made. (See Smith, supra, 30 Cal.4th at p. 611, fn. 6] [declining to reach issue whether ‘prosecution was required to do more to procure [a witness’s] attendance, such as request that he come voluntarily to testify’]; [citations].” (Herrera, supra, 49 Cal.4th at p. 627, fn. 8.)
Herrera concluded the El Salvadoran witness in its case had been deported after the preliminary hearing; the witness was in El Salvador at the time of trial and therefore beyond the court’s own process; attempts to locate the witness in El Salvador proved unsuccessful; and even if the witness could have been found there, the United States and El Salvador had no treaty or agreement providing for an alternative means to compel or facilitate his attendance at trial. (Herrera, supra, 49 Cal.4th at p. 629.) Herrera held that, under the circumstances, the People fulfilled their obligation of good faith and due diligence, the witness was unavailable, and the admission of his preliminary hearing testimony at trial was proper. (Ibid.)
(b) Application of the Law to This Case.
In the present case, the trial court found Doe was not a United States citizen but a citizen of China. There was substantial evidence that Doe was not a permanent resident of the United States and that, after July 5, 2009, she was a resident of China. As indicated, Glass was unaware of any treaties or other arrangements between the United States and China by means of which the People could have secured the attendance here of a witness in China. There is no dispute that (1) California was powerless to compel Doe’s attendance at trial through its own process, (2) federal writs were unavailable to secure Doe’s attendance at the trial, and (3) there was no treaty or other agreement between the United States and China by which Doe’s attendance at trial could have been compelled or facilitated. Under the circumstances, “ ‘good faith’ did not require additional efforts by the prosecution.” (Herrera, supra, 49 Cal.4th at p. 625.)
Sandoval’s holding does not compel a contrary conclusion. Unlike Sandoval, the present case is not a case in which (1) a treaty existed between the United States and a foreign country, providing for cooperation in the prosecution of crimes and mutual assistance in obtaining witness testimony and (2) all that prevented the witness’s return was the payment by the prosecution of the witness’s minimal trip expenses (expenses the prosecution largely had been accustomed to paying when interstate witnesses were involved).
Moreover, even if, as Sandoval suggested, the People were obligated to go beyond the existence or nonexistence of any treaty because Glass had made contact with Doe while she was in China, we believe, for the reasons discussed below, the trial court properly concluded Doe was unavailable.
There was substantial evidence that Doe entered the United States in May 2004 on a student visa which expired in November 2004. Nonetheless, she apparently remained in the United States for almost five years, i.e., until July 5, 2009, when she apparently left for China. The record does not demonstrate Doe remained a student from November 2004 through July 5, 2009, or, therefore, in what capacity or status she might have sought to reenter the United States in 2009. Moreover, for all the record reflects, Doe might never have been allowed to reenter the United States because, after November 2004, she apparently remained illegally in the United States for almost five years. Doe had been willing to return to the United States, but told Glass sometime after July 5, 2009, that she had a passport visa problem and could not return. This suggests she had been told by federal authorities that she could not return to the United States. In any event, given the above circumstances, the trial court reasonably could have concluded that any efforts by Glass to secure Doe’s return would have been futile.
Moreover, in many respects we are called upon to consider in a vacuum, as far as the record is concerned, what more, if anything, Glass could have done about Doe’s visa problems. The record does not reflect (1) any reference to federal laws or regulations governing whether Doe could reenter the United States under the above or any circumstances, (2) any official writings reflecting whether she could return to the United States, (3) any information concerning what role, if any, Glass could have played in securing any reentry by Doe under the above circumstances, (4) how long, under the above or any circumstances, any reentry process might have taken, or (5) the probability, if any, that Doe would have been able to reenter.
Glass, on the other hand, had not been aware of any problem on or before July 5, 2009, when Doe apparently left. She had always been a cooperative witness. Doe indicated to Glass that she had intended to return. Ordinarily, the People are not required to keep periodic tabs on every material witness in a criminal case. (Herrera, supra, 49 Cal.4th at p. 630.) It was not until Glass contacted Doe sometime after July 5, 2009, that he first learned she had a visa or passport problem with the United States and could not return.
In light of the totality of the circumstances, we conclude the People at all times acted reasonably and exercised due diligence to secure Doe’s attendance at trial, she was constitutionally unavailable, her preliminary hearing testimony was properly admitted into evidence, and no violation of appellant’s right to confrontation or other constitutional rights occurred. (Herrera, supra, 49 Cal.4th 613; Mancusi, supra, 408 U.S. 204; Smith, supra, 30 Cal.4th 581.)
In People v. Diaz (2002) 95 Cal.App.4th 695 (Diaz), the appellate court, discussing due diligence principles applicable to unavailability determinations under Evidence Code section 240, subdivision (a)(5), stated, “An appellate court ‘will not reverse a trial court’s determination [under [Evid. Code, ] § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, ... that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection.’ [Citation.] ‘That additional efforts might have been made or other lines of inquiry pursued does not affect [a] conclusion [there was due diligence].... It is enough that the People used reasonable efforts to locate the witness.’ [Citation.]” (Diaz, supra, 95 Cal.App.4th at p. 706.) The requirements to establish due diligence and unavailability under Evidence Code section 240, subdivision (a)(5) and the federal Constitution “ ‘are the same.’ ” (Herrera, supra, 49 Cal.4th at p. 622.)
(3) The Trial Court Was Not Required to Admit Doe’s Statements Presented by Videoconferencing and/or Related Methods.
Appellant also claims the trial court violated his right to confrontation by failing to have Doe’s statements presented by videoconferencing and/or by telephone. We disagree.
Herrera did not decide the precise issue appellant now raises. However, Herrera approvingly referred to the “traditional” (Herrera, supra, 49 Cal.4th at p. 621) former testimony hearsay exception by which preliminary hearing testimony is admissible. Neither the origins nor continued vitality of that tradition has depended upon videoconferencing. (See United States v. McKeeve (1st Cir. 1997) 131 F.3d 1, 10 [“The former testimony exception to the Confrontation Clause predates the development of videotaping technology by nearly a century.”].)
We similarly note Sandoval stated, “We need not, and do not, hold that live teleconferenced testimony from a remote location is necessary to meet the demands of the confrontation clause in cases in which the witness refuses to attend trial and cannot be compelled. We also need not and do not hold that such remote testimony would be constitutionally acceptable in the place of face-to-face confrontation.” (Sandoval, supra, 87 Cal.App.4th at p. 1443.)
We note, as does appellant, that in some instances California law permits (but does not require) the introduction into evidence of videoconferenced statements (Pen. Code, §§ 1335, subds. (a) & (b), 1343, 1345 [conditional examinations when a witness is about to leave the state], 1346, subd. (a) [certain victims of specified sexual offenses], 1346.1, subd. (a) [certain spousal crimes]). These statutes reflect detailed legislative consideration of the numerous issues involved in admitting videoconferenced statements into evidence. This fact points to the wisdom of leaving to the Legislature to determine whether and in what circumstances videoconferenced statements of an absent witness may be, or even may be required to be, presented in a criminal trial. We express no opinion as to whether appellant could or should have been able to introduce at his criminal trial, a videoconferenced statement of Doe, an absent witness. We simply conclude this was not constitutionally compelled.
2. There Was Sufficient Evidence to Support Appellant’s Conviction on Count 4.
Appellant claims there is insufficient evidence he committed forcible rape (count 4), because there is insufficient evidence his act of sexual intercourse with Doe as to that count was accomplished “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury” upon her within the meaning of Penal Code section 261, subdivision (a)(2). We disagree.
Penal Code section 261, subdivision (a)(2) states, “(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶] (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”
In order to establish force within the meaning of Penal Code section 261, subdivision (a)(2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the victim. The kind or degree of force is immaterial, as is whether the force (1) prevented the victim from resisting or thwarting the attack, (2) caused physical harm, (3) physically facilitated sexual penetration, or (4) was substantially different from or substantially greater than the physical force normally inherent in an act of consensual sexual intercourse. (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1025, 1027.) Force “ ‘plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victim’s will.’ [Citation.].” (Id. at p. 1025.) Accordingly, “the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction.” (Id. at p. 1027.)
The sexual intercourse which is the subject of count 4 did not occur in a vacuum. Inexplicably, appellant awakened Doe and asked if she was smiling at him, she replied no, and he brutally beat her. He then made the bizarre request that she not smile. She told him to stop but he told her not to say anything. He seemed like a different person. There is no dispute the beating was sufficient evidence as to count 1 and, therefore, that the beating “result[ed] in a traumatic condition” within the meaning of Penal Code section 273.5, subdivision (a).
Penal Code section 273.5, subdivision (a) states, in relevant part, “Any person who willfully inflicts upon a person who is his... cohabitant... corporal injury resulting in a traumatic condition, is guilty of a felony[.]”
There is also no dispute there was sufficient evidence that, after that beating, appellant forced Doe to orally copulate him (count 3). She testified she did not resist because she was very afraid. There is no dispute the court properly instructed the jury that the offense at issue in count 3 required oral copulation against Doe’s will “by means of force... or fear of immediate and unlawful bodily injury.”
It was against this backdrop of unpredictable and uncharacteristic brutality from appellant that the sexual intercourse at issue in count 4 occurred. In a somewhat mean tone, appellant ordered her to lie down. The jury reasonably could have concluded that Doe would fear (and that appellant knew she would fear) “immediate and unlawful bodily injury” within the meaning of Penal Code section 261, subdivision (a)(2) from his tone of voice, even if it was only somewhat mean, given the preceding events of the day. The jury also reasonably could have concluded that Doe’s fear attending the criminal oral copulation (count 3) continued during the later sexual intercourse (count 4).
Appellant got on top of Doe, necessarily restricting her movement. He forcibly put his penis in her vagina, causing her great pain. She believed protesting the sexual intercourse was futile because her protest prior to the oral copulation had been futile. We conclude there was sufficient evidence that appellant raped Doe, including sufficient evidence that the rape was “accomplished against a person’s will by means of force... or fear of immediate and unlawful bodily injury” within the meaning of Penal Code section 261, subdivision (a)(2). (Griffin, supra, 33 Cal.4th at pp. 1023-1025, 1027; In re Jose P. (2005) 131 Cal.App.4th 110, 115-118.)
3. Penal Code Section 654 Did Not Bar Punishment on Count 2.
a. Pertinent Facts.
The information alleged appellant committed the offense at issue in count 2 (false imprisonment by force) “[o]n or between February 13, 2008 and February 18, 2008.” There was ample evidence he committed that offense, and detained Doe, from February 13, 2008, through February 18, 2008, inclusive. For example, fairly read, the record reflects that, during the above period, appellant took Doe’s cell phone and would not let her use it. She testified she had a car, but the car keys were on a table and appellant would not let her move. Doe did not leave the apartment because she was afraid appellant might beat her again. Appellant was always watching her and he would always sit next to her. Appellant went to sleep during this time, but he told Doe that if she moved at anytime while he was asleep, he would beat her again. She escaped on February 19, 2008. The jury convicted appellant of a violation of Penal Code section 236 “as charged in count 2 of the information, ” (capitalization omitted) i.e., including the charge that the offense occurred “on or between February 13, 2008 and February 18, 2008.”
During the sentencing hearing, the court concluded Penal Code section 654 did not apply in this case or bar punishment on count 2 in particular. The court observed that, even though the false imprisonment permitted appellant to have access to Doe, there was no showing his sole motivation for the false imprisonment was to commit the sexual offenses. The court noted the false imprisonment lasted longer than necessary if appellant’s sole goal was to commit sexual offenses. Appellant’s sentence included a prison term on each of his convictions in this case. The court indicated this included a consecutive eight-month term on count 2 “due to the length of and nature of the incarceration of the victim.” The court added, “Above and beyond the commission of the sexual offenses, she was kept for a multiple day period incommunicado, wasn’t even able to make telephone contact with the outside world.”
b. Analysis.
Appellant claims Penal Code section 654 barred punishment on count 2. We disagree. False imprisonment is an offense which continues as long as the culprit detains the victim. (Cf. Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 407-410; see People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.) Accordingly, the false imprisonment in this case continued from February 13, 2008, through February 18, 2008, inclusive. It follows appellant falsely detained Doe not only when he committed the sexual offenses but when he was not committing them, such as when he was asleep. As the trial court noted, appellant was keeping Doe incommunicado the entire time. We note that on February 14, 2008, appellant falsely detained Doe, but committed no charged sexual offenses.
We conclude that, although appellant falsely imprisoned Doe to commit sexual offenses, he also during the same period falsely imprisoned her after committing the sexual offenses. The latter false imprisonment was not reasonably necessary to commit sexual offenses. “It is one thing to commit a criminal act in order to accomplish another; Penal Code section 654 applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 191, italics added.) To that extent, appellant did not falsely imprison Doe merely to commit sexual offenses. Moreover, it reasonably may be inferred that appellant held Doe incommunicado for the separate purpose of avoiding detection and conviction by dissuading and intimidating her. (Cf. People v. Nichols (1994) 29 Cal.App.4th 1651, 1657-1658; People v. Saffle (1992) 4 Cal.App.4th 434, 440.) Appellant had multiple criminal objectives, and not merely the objective of committing sexual offenses, when he falsely imprisoned Doe (cf. People v. Ratcliffe (1981) 124 Cal.App.3d 808, 819); therefore, multiple punishment on count 2 and the remaining counts did not violate Penal Code section 654.
4. Remand is Warranted As to Various Fines, and the Abstract of Judgment Must Be Amended.
a. The Abstract of Judgment Must Be Amended as to Certain Penal Code Section 290.3, Subdivision (a) Sex Offense Fines.
During the December 17, 2009 sentencing hearing, the trial court did not orally impose a Penal Code section 290.3, subdivision (a) sex offense fine on any of counts 1, 2, 7, or 10. However, the abstract of judgment reflects the court imposed a $500 Penal Code section 290.3, subdivision (a) sex offense fine on each of those counts.
Appellant claims Penal Code section 290.3, subdivision (a) sex offense fines on counts 1, 2, 7, and 10 were unauthorized and the abstract of judgment must be corrected to delete the references to those fines as to those counts. We agree the abstract of judgment must be corrected.
“... ‘Rendition of judgment is an oral pronouncement.’ Entering the judgment in the minutes being a clerical function [citation], a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. ‘The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms [citation], it cannot add to or modify the judgment which it purports to digest or summarize.’ [Citation.]” (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Because the trial court did not orally impose a Penal Code section 290.3, subdivision (a) sex offense fine on any of counts 1, 2, 7, or 10, no such fine was ever imposed on any of those counts. Respondent concedes the abstract of judgment must be amended to delete any reference to those fines as to those counts. We accept the concession and will remand the matter with directions to the trial court to correct the abstract of judgment.
A Penal Code section 290.3, subdivision (a) sex offense fine applies only to persons convicted of an offense specified in Penal Code section 290, subdivision (c). The offense at issue in each of counts 1, 7 and 10 was corporal injury upon a cohabitant. The offense at issue in count 2 was false imprisonment by violence. Respondent concedes that neither corporal injury upon a cohabitant nor false imprisonment by violence is an offense specified in Penal Code section 290, subdivision (c) and, therefore, that the trial court properly refrained from imposing a Penal Code section 290.3, subdivision (a) sex offense fine as to counts 1, 2, 7 and 10. We accept the concession.
b. The Judgment Must Be Modified and the Matter Remanded As to Other Mandatory Fines, Fees, Penalties, Surcharges, and/or Assessments.
During the sentencing hearing, the court imposed, as to each count, a “$30 court security fee” and a “$30 conviction fee.” The following then occurred: “[The Court:] Plus all applicable penalty assessments and surcharges. [¶]... do you waive reading of those many separate surcharges and assessments, I hope? [¶] [Appellant’s Counsel:] Yes. [¶] The Court: Thank you so much. The court appreciates that.”
The abstract of judgment reflects, “As to count 3, court imposes a sex offender fine per PC 290.3 in the amount of $300 plus $720 penalty assessment and a surcharge of $60.00; for a total of [$1,080.00]; as to counts 1, 2, 4 to 14, as to each count, court imposes a sex offender fine[] of $500.00 plus $1,200.00 penalty assessments and surcharge of $100.00, for total of $1,800 as to each count, for a total amount of $23,400.00.” (Italics added.)
Appellant claims “there are a bewildering array of penalty assessment statutes, ... [Citation.] As a result, appellant submits it is impossible to ascertain whether the aggregate penalty assessments, not imposed by the trial court, but fixed by the clerk of that court, are correct without some specification of the statutory basis for the assessments, and neither the court nor the court clerk clarified the basis for the total fines imposed.”
Respondent argues the trial court was required to impose such amounts as a Government Code section 29550.2, subdivision (a) booking fee, a Penal Code section 1202.5 crime prevention fee, a Penal Code section 1464, subdivision (a)(1) penalty assessment, and a Government Code section 76000, subdivision (a)(1) penalty assessment. There is no dispute the trial court did not explicitly and separately impose these orally.
We reject respondent’s argument that appellant waived the present issue by failing to raise it in the trial court. As discussed infra, the trial court, when rendering judgment, had a mandatory duty to orally and separately list, with the statutory basis, all fines, etc., imposed on each count. The trial court’s failure to comply with that duty resulted in an unauthorized sentence, which may be corrected at any time. The trial court’s failure was not a matter within the trial court’s discretion with the result that appellant could waive on appeal any issue arising therefrom as a result of a failure to object.
As mentioned, the rendition of judgment is an oral pronouncement. A judgment includes a fine. (People v. Zackery (2007) 147 Cal.App.4th 380, 387.) Accordingly, the trial court must, during the sentencing hearing, separately list, with the statutory basis, all fines, fees, and penalties imposed on each count. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201). Moreover, “Although... a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.]” (Id. at p. 1200; People v. Eddards (2008) 162 Cal.App.4th 712, 717-718 [same].)
We will strike the trial court’s reference to “[p]lus all applicable penalty assessments and surcharges” and remand the matter with directions to the trial court to impose any and all mandatory fines, fees, penalties, surcharges, assessments, and/or other monetary amounts, and to separately list same with the statutory basis for each.
DISPOSITION
The judgment is modified by striking the trial court’s reference to “[p]lus all applicable penalty assessments and surcharges” and, as so modified, the judgment is affirmed, except that the matter is remanded to the trial court with directions to impose any and all mandatory fines, fees, penalties, surcharges, assessments, and/or other monetary amounts (hereafter, fines), and to separately list said mandatory fines with the statutory basis for each. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting said mandatory fines but not reflecting that a Penal Code section 290.3, subdivision (a) sexual offense fine was imposed as to any of counts 1, 2, 7, or 10.
We concur: KLEIN, P. J., ALDRICH, J.
Mancusi involved a confrontation challenge to the use of a Tennessee prior conviction during criminal sentencing proceedings in another state where the prior conviction resulted from a retrial at which testimony from the defendant’s first trial had been introduced. By the time of the retrial, the testifying witness, a naturalized American citizen, had left the United States and had become a permanent resident of his native Sweden. The prosecution therefore sought to have the witness declared unavailable, and the court admitted the witness’s prior testimony into evidence at the retrial. (Herrera, supra, 49 Cal.4th at p. 624.) Mancusi, noting the availability of interstate compacts to secure the attendance of witnesses, and the availability of, inter alia, federal writs to secure the attendance of federal prisoners at a state trial, emphasized “ ‘There have been... no corresponding developments in the area of obtaining witnesses between this country and foreign nations.’ [Citation.]” (Herrera, supra, 49 Cal.4th at p. 624.) Mancusi affirmed the state court’s determination that the witness was unavailable. (Herrera, at p. 625.)
Smith “involved a situation where a Japanese foreign exchange student named Fukumoto testified at the defendant’s preliminary hearing, and then returned to Japan, where the prosecution contended he resided at the time of trial. [Citation.] [¶]... [¶]... Smith found the prosecution satisfied its burden of showing due diligence upon obtaining ‘three important pieces of information: (1) Fukumoto testified at the preliminary hearing that he was a Japanese national and intended to leave the country several months before the trial occurred, (2) Fukumoto’s host parent told the district attorney that Fukumoto had left the country, and (3) the district attorney’s investigator had called the telephone number in Japan that the records showed was Fukumoto’s number and heard a voice at the other end say he was Fukumoto. This information... sufficed to show that the prosecution made reasonable efforts to locate him and that further efforts to procure his attendance would be futile.’ [Citation.] [Fn. omitted.]” (Herrera, supra, 49 Cal.4th at p. 627-628.) The omitted footnote stated, “In Smith, ... there was no indication of an applicable treaty or agreement between Japan and the United States.” (Herrera, at p. 628, fn. 9.)