Opinion
C054849
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. VLADIMIR VASILIYEVICH RAKIN, Defendant and Appellant.
Not to be Published
A jury convicted defendant Vladimir Vasiliyevich Rakin of 17 counts, including child sexual abuse, attempted rape, rape, violation of a domestic violence restraining order, and kidnapping, accompanied by threats of harm to his victims. (Pen. Code, §§ 288 (a) and (b), 269, 664/261, 261, 273.6, & 422.) The jury also found true the special allegation that defendant committed lewd acts with multiple victims within the meaning of section 667.61, subdivision (b)(e)(5). The victims included defendants wife, his two daughters, and two teenage girls who were family acquaintances. The court sentenced defendant to 75 years to life plus 26 years and eight months.
Hereafter, undesignated statutory references are to the Penal Code.
The court sentenced defendant as follows:
Count 1 § 288, subd.(a) 15 years to life Count 2 § 288, subd. (a) 15 years to life Count 3 § 269, subd. (a)(1) 15 years to life Count 4 §§ 664/261, subd. (a)(2) 1 year 6 months stayed Count 5 § 220 4 years Count 6 § 288, subd. (b)(1) 15 years to life Count 7 § 288, subd. (b)(1) 15 years to life Count 8 § 261, subd. (a)(2) 6 years Count 9 § 289, subd. (a)(1) 6 years Count 10 § 289, subd. (a)(1) 6 years Count 11 § 273d, subd. (a) 1 year 4 months Count 12 § 242 concurrent county jail Count 13 § 273.6, subd. (a) concurrent county jail Count 14 § 207, subd. (a) 1 year 8 months Count 15 § 422 8 months stayed Count 16 § 207, subd. (a) 1 year 8 months Count 17 § 422 8 months stayed
On appeal, defendant argues that: (1) his waiver of the right to counsel under Faretta v. California (1975) 422 U.S. 806 (Faretta) was invalid; (2) the convictions in counts 1, 2 and 3 were barred by the statute of limitations; (3) if counts 1 and 2 were dismissed, the "one strike" multiple victim special allegation no longer applied; (4) if counts 1 and 2 were not dismissed, the court erred in imposing two "one strike" sentences in counts 1 and 2; (5) count 4 must be dismissed as a lesser included offense of count 5; (6) imposition of full, consecutive sentences under section 667.6, subdivision (d) in counts 3, 6, 7, 8, 9 and 10 violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham); and (7) there was insufficient evidence to support his misdemeanor conviction for violating a protective order in count 13.
We shall affirm the judgment, except for counts 1, 2 and 4, which must be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 Through 3 — Lewd and Lascivious Acts and Rape Against Y.C.:
In the summer of 1998, Y.C. was 13 years old. Defendant, nearly 40 years old, was a friend of Y.C.s father and visited her home two or three times a week. Defendant told Y.C. that he was going to introduce her to a 20-year-old guy, but took her to a motel instead. Defendant began kissing Y.C. She told defendant to stop, but he persisted. Next, defendant took off Y.C.s clothes and performed oral sex on her. She cried and told him to stop. Defendant then got on top of Y.C. and inserted his penis in her vagina. She unsuccessfully tried to push him away. Defendant ejaculated on her body. After the rape, defendant told Y.C. that he would kill her if she told anyone what happened.
Counts 4 and 5 — Attempted Rape and Assault With Intent To Rape Against T.G.:
In June 1999, T.G. was 16 years old. Defendant, a family friend, asked T.G. to accompany him on a trip for his bee-keeping business to translate between English and Russian. En route the first night, defendant took T.G. to a motel where he gave her vodka and Pepsi. Defendant wanted T.G. to kiss him, which she finally did. T.G. took a shower at defendants insistence. After the shower, T.G. put her clothes back on and got under the covers to go to sleep. Defendant got in the bed with T.G., took off his clothes and began touching her. Defendant tried to pull off T.G.s shorts, but she told him "no," pushed his hand away and pulled up her shorts.
T.G. fell asleep but awoke to find herself undressed with defendant naked on top of her. T.G. tried to push defendant off. T.G. was menstruating and defendant told her to take out the tampon. She refused. T.G. felt defendants penis, which was hard, rubbing against her vagina for between five and 15 minutes. She continued to reject his advances saying, "I dont want to do this." Eventually defendant got off her, but T.G. awoke later to find him on his knees between her legs masturbating with his hand. Defendant ejaculated on her leg.
Defendant drove T.G. to a field the next day. He tried to put his hand up T.G.s shorts and touch her leg and breasts. T.G. again rejected defendants advances. Defendant told T.G. that no one would believe her if she reported what happened. He also made veiled threats that something might happen to her or someone she knew if she told.
Counts 6 Through 11 — Lewd and Lascivious Acts By Force, Rape, Forcible Digital Penetration, and Corporal Punishment Against V.R.1:
Defendant physically and sexually abused his daughter V.R.1 on repeated occasions between 2003 and 2004. He hit V.R.1 with his hands, a belt or a stick almost daily, leaving bruises and swollen marks. In mid-March 2004, police were called after defendant beat V.R.1 and her younger sister V.R.2. They interviewed the girls at school the next day and defendant did not return to the home after that date.
Because defendants daughters have identical initials, we refer to them as V.R.1 and V.R.2.
The sexual abuse began when V.R.1 was 13 years old. V.R.1 was subject to physical abuse if defendant discovered her talking to boys. Defendants conduct toward his daughter changed to include sexual abuse after he returned home unexpectedly to find V.R.1s male friend hiding in the closet. After the young man left, defendant fondled V.R.1s breasts while they were sitting on the couch. He threatened to kill V.R.1 if she told anyone about it. The following day, defendant asked V.R.1 to give him a massage. He forced her to sit on top of his groin area for 20 to 25 minutes while he made humping motions and rubbed his penis against her vagina through their clothes. Again, defendant threatened to kill V.R.1 if she told. Defendant kissed, fondled, and then forcibly raped V.R.1 on another occasion, repeating his threats. Later the same night, defendant returned to V.R.1s room while she was sleeping and put his finger in her vagina while holding her forearm with his other hand. He repeated the nightly visits and digital penetration on approximately 100 occasions. Sometimes V.R.2 was in bed with V.R.1 and held her hand while defendant molested her. Each time, on the following day, defendant threatened to kill V.R.1 if she said anything. V.R.1 told her mother, defendants wife S.R., that defendant was touching her while defendant was still living at home, but V.R.1 was afraid what would happen if her mother confronted defendant. V.R.1 did not reveal the extent of the sexual abuse to S.R. until late April 2004, after defendant moved out of the house.
Count 12 — Battery Against V.R.2:
Defendant physically abused V.R.2 on a regular basis. On March 15 or 16, 2004, when V.R.2 was 12 years old, defendant slapped and hit V.R.2 with a belt because she misplaced some papers.
Counts 14 Through 17 — Violation of the Restraining Order, Kidnapping and Making Criminal Threats:
After the report that defendant physically abused V.R.1 and V.R.2, the court issued a temporary restraining order in March 2004, to protect S.R. and her two daughters from defendant. The Sacramento County Sheriff served defendant with the temporary restraining order (TRO) later on March 25, 2004. Defendant continued to contact S.R. in violation of the order. S.R. reported the calls and letters to Sacramento County Sheriffs Deputy Vitaly Prokopchuk on April 24, 2004.
Three nights later, defendant accosted S.R. in her car when she was on her way to work. He held her against her will and drove her around for five hours. During that time defendant talked about pushing S.R. off the rocks near Auburn and said that they could perish together in the car like Romeo and Juliet. S.R. reported the incident to Deputy Prokopchuk after defendant released her.
Defendant kidnapped S.R. a second time on the night of May 2, 2004, when she parked outside a store close to her apartment. Defendant, who was excited and angry, drove S.R. around the Sacramento area. He asked why S.R. had betrayed him and set the children against him. He eventually parked behind some shops and told S.R. that he would not let her leave until she agreed to return to him. Defendant also threatened that nothing would stop him from hurting her if he decided to follow through on his threats. S.R. escaped after nine hours when defendant fell asleep. She called Deputy Prokopchuk after she got home. S.R. told Prokopchuk that defendant threatened her life. Defendant was arrested on May 5, 2004.
DISCUSSION
I.
The Faretta Waiver Was Valid
On the sixth day of trial, but before jury selection, defendant made an oral Faretta motion. He signed a written record of Faretta warnings which included the following advisement: "Penalties for offense if found guilty are 49 years + 45 years to life." The court repeated the warnings during the hearing. It found that defendant was mentally capable of representing himself and granted the Faretta motion.
Defendant contends his waiver of the right to counsel was invalid. The focus of defendants argument is only on the indeterminate sentence advisement. He maintains that when he signed the Faretta form, he was incorrectly advised that he was subject to an indeterminate sentence of 45 years to life. Later, the court imposed an indeterminate sentence of 75 years to life. For this reason, argues defendant, he did not make a knowing waiver of his Sixth Amendment rights. We disagree and conclude that the waiver was valid.
In addition to guaranteeing a criminal defendant the right to counsel, the Sixth Amendment affords the defendant the right to self-representation. (Faretta, supra, 422 U.S. at p. 820.) "`In order to deem a defendants Faretta waiver knowing and intelligent, the trial court `must insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the "dangers and disadvantages of self-representation." [Citation.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 545 (Sullivan), quoting U.S. v. Erskine (9th Cir. 2004) 355 F.3d 1161, 1167 (Erskine ).) "`"The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case"" at the time of the purported waiver. (People v. Lawley (2002) 27 Cal.4th 102, 140 (Lawley), italics added; see Sullivan, supra, at p. 546.) Thus, Faretta does not require the court to specifically advise a defendant of the possible penal consequences of the charges against him. (People v. Harbolt (1988) 206 Cal.App.3d 140, 149-150 [court not required to inform defendant of the increased penal consequences of the amended information].) The burden is on the defendant to demonstrate that he did not knowingly waive his right to counsel. (Sullivan, supra, at p. 547.)
Defendant relies on Erskine, a case in which the Ninth Circuit held that the trial court "failed to . . . ensure that [defendant] understood the possible penalties he faced" at the time he made his Faretta waiver, and reversed for a new trial. (355 F.3d at p. 1171.) During the Faretta hearing, the trial court asked Erskine whether he understood the possible penalties he faced. Erskine responded that he faced the maximum of one year. The statutory maximum was, in fact, five years. (Erskine, supra, at pp. 1164-1165.) The prosecutions first trial brief also misstated the maximum penalty as three years. It was not until the first day of the second trial that the prosecution corrected its error and stated that the correct maximum penalty was five years. However, "[d]espite a revelation that quintupled the stakes of self-representation for Erskine, the court did not acknowledge its prior mistake, address Erskine to ascertain whether he had understood the governments representation, advise him of the correct maximum penalty, or ask him whether in light of the new and different information as to the penalty he faced, he desired to withdraw his Faretta waiver. Instead, the court simply stated: `All right. Thank you very much. . . . [W]ill you please arraign Mr. Erskine?" (Id. at p. 1165.)
Defendant argues that the error in this case is more serious than the error in Erskine because "Rakin was not even the beneficiary of a correct but belated advisement." He maintains that the difference between an indeterminate term of 45 years to life and 75 years to life was significant and could cause a reasonable person to decide against self-representation.
Defendants focus on the Faretta forms advisement of the indeterminate term of 45 years to life versus the courts imposition of an indeterminate sentence of 75 years to life is too narrow. On appeal, we consider whether the record as a whole demonstrates that he understood the disadvantages of self-representation. (Lawley, supra, 27 Cal.4th at p. 140.) The court in this case provided defendant with a written and lengthy oral explanation of the difficulties he faced in representing himself. The court gave defendant time to review the form with a Russian interpreter after the hearing, and postponed its decision on the Faretta motion until the following morning. Defendant asked the court several questions about the rules of evidence and criminal procedure, but had no questions about his potential sentence. In the circumstances of this case, including defendants age of 49 years at the time of sentencing, it is reasonable to infer that the potential indeterminate sentence was likely among defendants lesser concerns at the time he signed the Faretta waiver. Although the difference between 45 years to life and 75 years to life is 30 years, that difference would have been merely academic to a 49-year-old man properly advised of a potential determinate sentence of 49 years and the fact that the potential punishment included incarceration for "life." Moreover, the discrepancy in this case was minimal compared to the discrepancy in Erskine. Here the aggregate sentence (determinate and indeterminate) described in the Faretta form and repeated by the court was 76 percent [(45 + 49) ÷ (75 + 49)] of the actual potential sentence.
In Erskine, defendant was informed of a sentence that represented only 20 percent [1 ÷ 5] of his actual exposure. (Erskine, supra, 355 F.3d at p. 1165.) We conclude that defendant did not sustain the burden of showing that he did not knowingly waive his right to counsel. (Sullivan, supra, 151 Cal.App.4th. at p. 547.)
II.
The Statute of Limitations Bars
Counts 1 and 2
Defendant contends for the first time on appeal that counts 1, 2 and 3 involving sexual offenses against Y.C. are barred by the statute of limitations. As to counts 1 and 2, defendant maintains that the statute of limitations is determined by the underlying charge, here violation of section 288, subdivision (a), not the alternative sentencing scheme of the One Strike Law. As to count 3, defendant argues that the statute of limitations is based on the predicate crime, in this case rape in violation of section 261, subdivision (a)(2). The first argument has merit, the second does not.
A. Counts 1 and 2:
The statute of limitations is jurisdictional; therefore, a criminal defendant may assert it at any time. (People v. Williams (1999) 21 Cal.4th 335, 338.) Absent a tolling of the limitations period, the court must dismiss charges filed after the statute has run due to an irrebuttable presumption that the defendants right to a fair trial has been prejudiced. (See United States v. Marion (1971) 404 U.S. 307, 322 [30 L.Ed.2d 468, 479-480]; People v. Angel (1999) 70 Cal.App.4th 1141, 1144, 1150.)
In general, the limitations period is related to the seriousness of the offense as reflected in the length of punishment established by the Legislature. (People v. Turner (2005) 134 Cal.App.4th 1591, 1594-1595 (Turner); see, e.g., §§ 799-805.) After a comprehensive review of criminal statutes of limitation in 1984, the Law Revision Commission recommended that the length of a "limitations statute should generally be based on the seriousness of the crime." (17 Cal. Law Revision Com. Rep. (1984) p. 313.) The Legislature overhauled the entire statutory scheme with this recommendation in mind. (Turner, supra, 134 Cal.App.4th at p. 1594, citing Stats. 1984, ch. 1270, §§ 1-2, pp. 4335-4337.) The Turner court summarized the recommendations of the Law Revision Commission: "The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. ([17 Cal. Law Revision Com. Report, supra, at] p. 314.) It also served the procedural need to `provid[e] predictability and promote `uniformity of treatment for perpetrators and victims of all serious crimes. (Ibid.) The commission suggested that the seriousness of an offense could easily be determined in the first instance by the classification of the crime as a felony rather than a misdemeanor. Within the class of felonies, `a long term of imprisonment is a determination that it is one of the more serious felonies; and imposition of the death penalty or life in prison is a determination that society views the crime as the most serious. (Id., p. 313.)" (Turner, supra, at pp. 1594-1595.)
Accordingly, for purposes of determining the applicable statute of limitations, the Legislature provided that "[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense." (§ 805, subd. (a), italics added.)
Here, the information charged defendant in counts 1 and 2 with the offense of committing lewd and lascivious acts upon a child under the age of 14 in violation of section 288, subdivision (a). Section 288, subdivision (a) imposes a prison term of three, six, or eight years, and is therefore subject to a six-year statute of limitations. (§ 800.) However, the information also included the special allegation that the offenses in counts 1 through 7 were committed on multiple victims within the meaning of section 667.61, subdivision (b)(e)(5) — the One Strike Law. The alternative sentencing scheme set forth in section 667.61, subdivision (b) (see People v. Snow (2003) 105 Cal.App.4th 271, 283) imposes a sentence of 15 years to life. "Prosecution for an offense punishable . . . by imprisonment in the state prison for life . . . may be commenced at any time." (§ 799.)
Section 667.61, subdivision reads in relevant part: "(b) Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life. (c) [¶] . . . [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] . . . [¶] (8) Lewd or lascivious act, in violation of subdivision (a) of Section 288. [¶] . . . [¶] (e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
Where the limitations period is a specified term of years (e.g., § 800), it ends when criminal prosecution begins — as defined by statute. Under the Penal Code, "prosecution for an offense is commenced when any of the following occurs: [¶] (a) An indictment or information is filed. [¶] (b) A complaint is filed charging a misdemeanor or infraction. [¶] (c) A case is certified to the superior court. [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." (§ 804.) Thus, "[t]he filing of a criminal complaint does not generally commence the prosecution of a felony for statute of limitation purposes and, unless a formal arrest warrant issues or the case is certified to the superior court (see § 859a), the statute of limitation ordinarily continues to run until an information is filed. (§§ 803, 804.)" (People v. Terry (2005) 127 Cal.App.4th 750, 764, fn. omitted; see Angel, supra, 70 Cal.App.4th 1141, 1145-1146.)
All three counts involving Y.C. were alleged to have occurred between January 1, 1998, and November 22, 1998. It does not appear that an arrest warrant was issued before defendant was taken into custody. The court deemed the amended complaint an information on December 7, 2004. We must decide which statute of limitations applies to counts 1 and 2: (1) the six-year limitations period applicable to the underlying offenses of lewd and lascivious acts against a child under the age of 14 (§ 800), in which case counts 1 and 2 are barred; or (2) the unlimited time for commencing prosecution against persons subject to life sentences under the One Strike Law (§ 799).
The Attorney General states that the question whether an arrest warrant was issued is irrelevant in light of his argument that section 799 applies.
Section 801.1, subdivision (b) sets a 10-year statute of limitations for violations of section 288, subdivision (a). Although defendant was charged with violating that statute, the 10-year limitations period does not apply because section 801.1 became effective on January 1, 2005, after the six-year statute of limitations in this case expired under section 800. (Stats. 2004, ch. 368, § 1.) Application of a law that permits resurrection of an otherwise time-barred criminal prosecution violates the ex post facto clauses of the United States Constitution. (Stogner v. California (2003) 539 U.S. 607, 609 [156 L.Ed.2d 544, 550].)
Relying on Turner, supra, 134 Cal.App.4th 1591, defendant argues that the six-year limitations period applies. Section 805 expressly excludes enhancements from the calculation of "the maximum punishment prescribed by statute for the offense" required to determine what statute of limitations applies. However, section 805 does not mention alternative sentencing schemes such as the Three Strikes Law or the One Strike Law. In Turner, the defendant was convicted of several criminal counts, including robbery, and the court sentenced him to multiple life terms under the Three Strikes Law. (§ 1170.12.) The court interpreted the plain meaning of the term "offense" in sections 799 and 805, and held that for purposes of determining the applicable statute of limitations in that case, the "maximum punishment" was the punishment prescribed for the offense itself, not the indeterminate life term prescribed by the alternative sentencing scheme of the Three Strikes Law. (Turner, supra, at pp. 1596-1598.) It reasoned that "[t]he allegations of prior serious felony convictions within the meaning of the Three Strikes law do not constitute an `offense for which the defendant is to be prosecuted. Instead these allegations refer only to facts relevant to a particular offender, which if proved establish not the commission of an offense, but his status as a recidivist. The indeterminate life term to which the offender may be subject, under the Three Strikes law, is not a punishment imposed for commission of the `offense, i.e., the current felony offense for which the defendant is being prosecuted. It is an alternative punishment that is imposed based upon the fact of the defendants recidivism, and it is imposed upon conviction of `a felony without regard to the seriousness of the current felony offense . . . ." (Id. at p. 1598.)
Like the Three Strikes law described in Turner, the One Strike Law involved in this case focuses on something other than the seriousness of the offense itself. Here, the offense was committing a lewd or lascivious act upon a child under the age of 14 in violation of section 288, subdivision (a). That offense can be committed in a number of ways, including touching and fondling a child through his or her clothing. (People v. Martinez (1995) 11 Cal.4th 434, 444.) The alternative sentencing scheme set forth in the One Strike Law imposes increased punishment based on the type of offense, defined broadly, and the number of victims. (§ 667.61, subds. (b), (c)(8) & (e)(1).) Because the sentence under section 667.61 is not based on the offense itself, we conclude that the rationale of Turner applies. Counts 1 and 2 are barred by the six-year statute of limitations under section 800 and must be dismissed.
B. Count 3:
In a supplemental brief, defendant offers a similar argument in support of his claim that count 3 alleging aggravated sexual assault against a child is time-barred. Acknowledging that there are no published cases on the issue, defendant maintains that because the charge of aggravated assault under section 269, subdivision (a)(1) is based on the predicate offense of rape (§ 261, subdivision (a)(2)), the six-year statute of limitations for rape applies.
The difficulty with defendants argument is that the charged offense — section 269, subdivision (b) — imposes a sentence of 15 years to life for "[a]ny person who violates this section." The jury convicted defendant of aggravated sexual assault of a child under section 269, not rape. Accordingly, defendant was subject to the sentence of 15 years to life prescribed by section 269, subdivision (a)(1).
III.
The "One Strike Law" Does Not Include
Section 269, Subdivision (a)(1)
Defendant argues that if we reverse counts 1 and 2 on statute of limitations grounds, the multiple victim basis for imposing the "One Strike Law" fails because section 269, subdivision (a)(1) is not a qualifying offense under section 667.61, subdivision (c). He maintains in that event, we must reverse the "One Strike" life sentences in counts 6 and 7.
The Attorney General concedes that the offenses charged in counts 3, 4 and 5 are not listed as offenses subject to the alternative sentencing scheme of the One Strike Law. With the reversal of counts 1 and 2, that leaves V.R.1 as the only victim of a "One Strike" offense. We therefore conclude that the multiple victim special allegation set forth in section 667.61, subdivisions (b) and (e)(5) does not apply, and defendant is entitled to resentencing on counts 6 and 7.
IV.
Whether Counts 1 and 2 Were Committed on a "Single Occasion"
Because we conclude that counts 1 and 2 are barred by the statute of limitations, we need not address the question whether defendant committed those offenses on a single occasion within the meaning of section 667.61, former subdivision (g).
V.
Count 4 Is a Lesser Included Offense of Count 5
Multiple convictions based on a greater offense and a lesser offense may not stand. (People v. Ortega (1998) 19 Cal.4th 686, 692.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117.)
Citing People v. Ghent (1987) 43 Cal.3d 739, 757, defendant argues that we must reverse defendants conviction for attempted rape in count 4 because it is a lesser included offense of assault with intent to commit rape in count 5. The Attorney General properly concedes that because the prosecutor argued that both offenses were based on one incident at the motel involving T.G. and "because the trial court impliedly found the offenses in counts 4 and 5 were based on the same act [by staying count 4], count 4s attempted rape was necessarily included as a lesser offense of count 5s assault with intent to commit rape." Accordingly, we shall reverse count 4.
VI.
Full Term Consecutive Sentencing Under Cunningham
The court ruled that defendant was subject to mandatory consecutive sentencing under section 667.6, subdivision (d) in counts 3 and 6 through 10: it ordered count 3 to run consecutively to counts 6 through 10 because Y.C. and V.R.1 were separate victims; it ordered counts 6 through 10 to run consecutively to each other because they were committed against a single victim but on separate occasions. Defendant argues that court violated Cunningham, supra, 549 U.S. 270 by imposing full-term consecutive sentences on these counts. He maintains that sentencing under section 667.6, subdivision (d) "require[d] additional fact-finding by a preponderance of the evidence beyond what [was] established by the jurys verdict."
Section 667.6, subdivision (d) provides:
"A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.
"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
"The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison."
There is no merit in defendants argument. First, People v. Black (2007) 41 Cal.4th 799, 821-823, holds that a criminal defendant has no right to a jury determination of the factual circumstances necessary to impose a consecutive sentence. Second, by convicting defendant of the offenses alleged in counts 3 and 6 through 10, the jury necessarily found the same facts as the court expressly placed on the record at sentencing. In deciding that defendant was guilty in count 3, it found that defendant committed the offense against Y.C., a different victim from V.R.1, the victim in counts 6 through 19. Similarly, counts 6 through 10 alleged specific acts — for example, "touching breast, first time," "humping after massage"— which occurred on separate occasions. Thus, by finding defendant guilty of those offenses, the jury necessarily found that defendant committed the acts on separate occasions.
VII.
Sufficient Evidence Supports the Conviction
For Violating a Protective Order
The jury convicted defendant of violating section 273.6, subdivision (a), a misdemeanor, by allegedly contacting S.R. in violation of a domestic violence restraining order. Defendant contends there is insufficient evidence to show that the restraining order was in effect when the alleged contact occurred. We reject this contention.
On appeal, we "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re Michael D. (2002) 100 Cal.App.4th 115, 126.) Moreover, we defer to the trier of fact on questions of witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
To convict defendant of violating section 273.6, subdivision (a), the prosecution must prove that: (1) the court issued a stay-away/no-contact order; (2) the order was issued in a criminal case involving domestic violence; (3) the defendant knew about the order; (4) the defendant had the ability to follow the order; and (5) the defendant willfully violated the order. (§§ 166, subds. (a)(4) & (c)(1), 273.6; Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 2701.)
Count 13 alleges that "[o]n or about April 24, 2004," defendant "did unlawfully and knowingly violate a protective order . . . issued by a judge of the Superior Court for the County of Sacramento on March 17, 2004, in Case Number 04DV00859." The prosecution introduced the TRO at trial. The order stated that "[a]ny orders made in this form end on the date and time of the court hearing." The order set the hearing on the temporary restraining order on April 7, 2004. Defendant was served with the order on March 25, 2004. On April 7, 2004, the court continued the hearing to May 3, 2004, because they needed a Russian interpreter. The order for continuance does not expressly state whether the TRO remained in effect. Meanwhile, defendant repeatedly contacted S.R. by telephone and letter. S.R. reported the violations to Deputy Prokopchuk on April 24, 2004, stating that she was "very afraid that [defendant] would get to the children. . . ."
Defendant maintains that there is insufficient evidence to support his conviction because S.R. never testified about the specific dates he allegedly violated the TRO. Defendant therefore speculates it is possible that the violation occurred between March 17, 2004, and March 25, 2004, before he had notice of it. We conclude that the documentary evidence, S.R.s testimony, and reasonable inferences drawn from this evidence support the jury verdict.
Given that defendants prior threats and conduct motivated S.R. to seek a TRO, and S.R. continued to fear that defendant would "get to the children," a jury could reasonably infer that she would have reported the violations immediately after they occurred. S.R. would not have waited nearly a month to report a violation that occurred before defendant was served with the restraining order on March 25. Defendant also asserts there is no evidence that the order remained in effect after April 7, 2004. However, the express language of the TRO stated that it ended "on the date and time of the court hearing."
Further, it would have made no sense for S.R. to have reported the repeated violations to Prokopchuk if the order had not been extended. Based on this record, including S.R.s uncontradicted testimony that numerous violations occurred, we conclude there is sufficient evidence to support the verdict.
DISPOSITION
The judgment is affirmed, except for the convictions in counts one, two and four which are reversed. The trial court is directed to dismiss counts one, two and four, and to resentence defendant on the remaining counts.
We concur:
SCOTLAND, P.J.
DAVIS, J.