Opinion
D060226
11-07-2012
THE PEOPLE, Plaintiff and Respondent, v. LONDREA RAYMOND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD225435)
APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed as modified.
Londrea Raymond appeals from a judgment convicting him of various offenses perpetrated against two victims on distinct occasions. His offenses included forcible rape, forcible oral copulation, burglary and robbery against one victim, and robbery against another victim. The jury found true several enhancement allegations, including commission of a sex offense during a residential burglary, use of a deadly weapon, and use of a deadly or dangerous weapon. Raymond was sentenced to two terms of 25 years to life, plus a determinate sentence of 16 years four months.
On appeal, Raymond argues: (1) the trial court erred by admitting statements he made to a detective because he did not waive his Miranda rights; (2) the trial court abused its discretion by admitting irrelevant and prejudicial evidence about another person's driver's license found in his backpack at the time of his arrest; (3) there was insufficient evidence to support the weapon use enhancements; (4) the trial court erred by failing to give a unanimity instruction concerning burglary-related allegations; and (5) the trial court erred in sustaining an objection to a portion of defense counsel's closing argument.
Miranda v. Arizona (1966) 384 U.S. 436.
We reject these contentions of reversible error, with one exception. We hold there was insufficient evidence to support the weapon use enhancements that alleged deadly weapon use (as opposed to deadly or dangerous weapon use).
As to sentencing, Raymond asserts the court erred in imposing consecutive sentences for an oral copulation and rape offense under a mandatory consecutive sentencing provision for sex offenses on separate occasions. Further, he contends the matter must be remanded for a statement of reasons concerning the consecutive sentence choice. We reject these contentions.
Based on our holding that the record does not support the deadly weapon enhancements (counts 1 through 3, Pen. Code, § 12022.3, subd. (a)), we modify the judgment to strike these enhancements and their accompanying sentences. This modification reduces Raymond's determinate sentence by eight years.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 30, 2009, Megan Garrison was robbed while seated in her car at her apartment complex. About one month later and at the same apartment complex where Garrison lived, D was sexually assaulted and robbed when she returned home at night from a class. Raymond was arrested at a trolley station after D identified several of her personal belongings in Raymond's possession.
The Sexual Assault, Burglary, and Robbery Offenses Against D
D testified that on February 3, 2010, she drove home from a class at about 10:00 p.m. When she arrived at her apartment, she unlocked the door, entered the apartment, and went to the bathroom. She partially closed, but did not lock, the door to her apartment. After using the bathroom, she went to her bedroom and put on her pajamas. She then went to check whether she had locked the front door. When she returned to the hallway, she saw a man (later identified as Raymond) entering her apartment through the door. Raymond pulled a black gun out of his sweatshirt pocket, pointed the gun at D as if he was going to shoot her, and started walking towards her.
Raymond asked if anyone was there with her; D responded she did not know. Raymond directed her into her bedroom and closed the bedroom door. He told her to take her clothes off; she initially "froze," but when he repeated the command she took her pajama pants off. Raymond pulled down his pants and told her to give him oral sex; she complied with his command because she did not want him to shoot her.
Raymond then told her to turn around and made her bend over "on all fours." He made her take her shirt off. He unclasped her bra and took it off. He touched her vagina and penetrated her with his penis, and while doing so caressed her breasts. After he had intercourse with her, he made her turn around and give him oral sex again.
After the sexual assaults, Raymond told D to get dressed and sit on her bed. He pointed the gun at her and told her to look at the corner of the wall. He asked her if she had any jewelry, and she could hear him rummaging around in her room. He asked her where her purse was, and when she told him it was on the kitchen counter, he told her to follow him to the living room. As they were leaving the bedroom, D saw that Raymond had her laptop computer, old cell phone, camera, and roll of coins. He took her purse from the living room, and told her to walk with him to the alley. At the alley, he told her to run away. She ran back to her apartment, banged on her roommate's door, and told her roommate that she had been raped; her roommate's boyfriend called the police.
D testified that she thought Raymond had a real, loaded gun, and she did whatever he told her to do and did not scream for help because she was afraid he would shoot her and kill her.
At about 11:45 p.m., the police put out a broadcast to be on the look out for the suspect described by D. About one-half hour later they located Raymond at a trolley station. D was brought to the trolley station, where she identified several items found in Raymond's backpack as her property, including her cell phone, old cell phone, laptop, camera, and roll of coins. Later forensic testing revealed a match between Raymond's DNA and DNA found at the scene.
The police also found a pellet gun in Raymond's backpack. When shown the gun at trial, D testified that it looked like the gun that Raymond pointed at her. The gun was a "simulated .50 caliber Desert Eagle handgun" that used a carbon dioxide cartridge. The police determined the gun had no carbon dioxide cylinder and no magazine that holds the pellets; hence, it was unloaded and not capable of firing. These missing items were not found in Raymond's backpack or in his possession.
Raymond was charged with two counts of forcible oral copulation, forcible rape, burglary, and robbery. The sex offense counts included several enhancement allegations, including that he committed the sex offenses during a residential burglary with intent to commit rape or oral copulation. Based on the use of a pellet gun, he was also charged with weapon use enhancements.
In closing arguments, defense counsel did not dispute that Raymond committed the rape, oral copulation, and robberies. However, defense counsel disputed the burglary count and the sex offense/burglary-related enhancements (which carried life sentences). Defense counsel argued that when Raymond entered D's home he was under the influence of methamphetamine and merely looking for a place to "crash," and he did not form any felonious intent until after he panicked, pushed D into her bedroom, and then committed crimes of opportunity. The jury was presented with evidence showing that Raymond had methamphetamine in his blood several hours after his arrest. To refute the defense contention that Raymond's mental state was affected by his methamphetamine use, prosecution witnesses (including D and several officials who interviewed or examined Raymond on the date of his arrest) testified he did not exhibit signs of intoxication.
The jury found Raymond guilty of the charged offenses against D and found the enhancement allegations true.
The Garrison Robbery
Garrison testified that at about 1:00 p.m. on December 30, 2009, she left her apartment and went to her car. While she was sitting in the driver's seat with the door open and her purse on her lap, a man (later identified as Raymond) appeared at her car, displayed a gun, and said in a calm voice, "Excuse me. I need your purse or any valuables." Garrison felt terrified. There were some children playing nearby, but she did not call out for help because they were children and he had a gun. She leaned back in her seat, crossed her arms over her chest, and looked straight ahead. Raymond took her purse from her lap and reached across her and took some coins from the coffee cup holders. Raymond asked if there was anything else, and Garrison responded no. After Raymond left, Garrison went to a neighbor's home and called 911. Later that same date, the authorities retrieved Garrison's purse, wallet, and other items which had been abandoned about one block from her residence.
During a February 4 police briefing on the D incident, Detective James Smith realized that the description of the suspect for the D incident was similar to the suspect described in the Garrison robbery. Smith conducted a photo lineup with Garrison, during which Garrison identified two men as the possible perpetrator and specified that Raymond was "more likely" the perpetrator. During a recorded interview with Raymond, Raymond initially denied involvement in the Garrison robbery, but ultimately admitted he was the robber. Raymond told Smith he used a broken BB gun during the Garrison robbery, and it was not the same gun as the one he used during the D offenses. He stated he kept the gun partially covered because if he had pulled it out completely Garrison would have known it was "fake."
The gun used during the Garrison robbery was not recovered. Garrison described the weapon as a "small black gun" and stated she thought it was real. Raymond was holding the gun at her eye level and his finger was on the trigger guard. When shown the pellet gun used by Raymond during the D incident, Garrison testified the gun he used when he robbed her was smaller.
Raymond was charged with robbery and a weapon use enhancement (based on the use of a gun). The jury returned a guilty verdict and a true finding on the enhancement.
Sentence
Raymond was sentenced to a total term of 50 years to life, plus a 16-year-four-month determinate sentence. The indeterminate term consisted of two 25-years-to-life terms for count 1 oral copulation and count 2 rape against D, based on the enhancement allegation that he committed the offenses during a residential burglary with intent to commit rape or oral copulation. The determinate term consisted of (1) two consecutive four-year terms for deadly weapon use enhancements for two counts against D, (2) a six-year term for robbery against D, plus one year for a dangerous or deadly weapon use enhancement on this count, and (3) a one-year term for the robbery against Garrison, plus four months for a dangerous or deadly weapon use enhancement on this count. The sentence on count 3 oral copulation against D was ordered to run concurrently, and the sentences on the remaining counts and on several additional enhancements were stayed.
DISCUSSION
I. Miranda Objection to Raymond's Statements to Detective Smith
About Garrison Robbery
Raymond argues the trial court erred by refusing to exclude his statements to Detective Smith about the Garrison robbery because he did not waive his Miranda rights when questioned by the detective.
A. Background
Before trial, Raymond moved to exclude statements he made on February 4, 2010, to Officer Ryan Quinn and Detective Leslie Albrecht (who questioned him about the D offenses), and to Detective Smith (who later questioned him about the Garrison robbery). He asserted he did not knowingly and voluntarily waive his Miranda rights. In conjunction with the Miranda motion, the trial court was presented with Officer Quinn's police report, the reporter's transcripts of the interviews conducted by Detectives Albrecht and Smith, and a toxicology report showing Raymond had methamphetamine in his blood on February 4. The court also heard testimony from Officer Quinn.
Officer Quinn testified he contacted Raymond at the trolley station on the night of the D offenses. Raymond told him he had used methamphetamine earlier that morning; however, Raymond was calm and coherent and he did not appear to have used drugs or to be intoxicated. At about 1:30 a.m. (while still at the trolley station), Quinn provided Raymond with a proper Miranda admonishment. Quinn then asked Raymond if he understand each of these rights, and asked if he was willing to speak to him. Raymond answered, "Yes, sir," to both questions. During his 10-minute interview with Raymond, Quinn did not observe anything in Raymond's demeanor that suggested he did not understand what they were talking about; Quinn did not detect any impairment in Raymond's mental abilities; Raymond never asked to stop speaking or for an attorney; and Raymond was very respectful and told him what happened during his contact with D. In his police report, Quinn set forth Raymond's statements concerning his entry into D's home and his conduct therein. Raymond admitted that he robbed and had sexual contact with D, although he minimized the extent and forceful nature of the sexual contact.
Several hours later on February 4, Raymond was interviewed by Detective Albrecht at police headquarters. The transcript of this interview revealed that at its commencement, Albrecht asked Raymond if he had been admonished about his rights, and Raymond answered, "Yes, I have." Albrecht said she was going to repeat the admonishment because Raymond was talking to a different person. After Albrecht delineated the Miranda rights and asked Raymond if he was willing to talk, Raymond answered, "I'm willing, but like right now I'm not all there." (Italics added.) Albrecht confirmed this statement by asking, "You're not all there, but you're willing to talk to me?" Raymond responded, "Um-hum." Albrecht asked if he understood the rights that she had just explained to him, and he said, "Yes, ma'am." Albrecht asked what he meant by he was not "all there," and he answered, "Well, I'm still tripping off the meth." Albrecht asked when he had taken the methamphetamine, and Raymond told her he had "been smoking all night."
Albrecht then asked Raymond biographical type-questions about such matters as his age, address, employment, and schooling. Raymond answered these questions in detail, including a description of his current problems with his family and his homelessness. Next, Albrecht asked Raymond about the events that night, stating "what led up to all this craziness?" Raymond answered that he did not want to "blame it on the meth," but he believed that his methamphetamine use had "something to do with it," and also he had been "highly stressed out" because he did not have a place to stay. Raymond elaborated about the stresses in his life, and explained he carried a BB gun that looked like a real gun for his safety. During the ensuing interview, he described in detail what he was doing before he went to D's home, what happened at D's home, and his motivations for what he did. Again, he admitted that he robbed and had sexual contact with D, while minimizing the scope and forcefulness of the sexual contact.
During the afternoon of February 4, Detective Smith conducted a third interview with Raymond at the jail. At the commencement of this interview, Smith told Raymond that he was not there to talk about the incident the previous night because Smith had nothing to do with that, but rather he was there to talk about a crime committed on December 30 at the same location. Smith said that although Raymond had waived his rights and talked to the other officers, Smith had to go over the rights again. Smith delineated the Miranda rights, and asked if Raymond wanted to talk to him about "this other case." Raymond responded, "Uh, I don't know what it is. I mean I can listen to know what it is . . . but as far as speaking on it, uh." (Italics added.)
Smith then told Raymond that on December 30 there was a robbery of a "young lady once she got to her car." Smith stated the perpetrator had a pellet gun that had been identified as the one Raymond had, and the victim had identified Raymond in a photo lineup. Smith told Raymond that he understood Raymond had had some "hard times" and may have needed some money; he was "pretty sure" Raymond was the robber; and it was "probably good" for Raymond to "get it off [his] chest" rather than waiting until after he went to court on the other case. Smith asked Raymond, "So, you wanna come clean and tell me what happened back on the 30th of December over there?" Raymond answered, "To be honest with you God's honest truth, I have no clue what you're talking about. [¶] No clue, I have no reason to lie at this point. I came clean about the first . . . about this thing, so I don't know what you're talking, what that is about." When Smith asked how could he explain the fact that the victim picked him out of the photo lineup, Raymond answered, "Well, I don't know."
Raymond then described an alibi for the December 30 robbery, stating he had been in Los Angeles the week of December 29 staying at his girlfriend's mother's home. Raymond provided the name of his girlfriend and her mother, and his girlfriend's phone number, so the police could verify his alibi. Detective Smith said he was having a "hard time" believing him because the robbery victim was "quite positive" looking at his photograph, and there was DNA evidence that was going to be examined. Raymond said he was "positive" he did not commit the robbery because he was in Los Angeles. Smith told Raymond that some of the stolen items were discarded after the robbery, and if his DNA showed up on these items, it was going to be a lot "uglier" than if he confessed now. Raymond then said, "Alright. [¶] Yeah, that's what happened." He then described in detail the robbery he had committed, explaining he did it because he had not eaten and needed money.
In support of the Miranda motion, defense counsel argued Raymond could not make a voluntary waiver of his rights because he was under the influence of methamphetamine at the time of the interviews, and, additionally, he told Detective Smith that he did not want to talk to him about the Garrison robbery. The trial court denied his motion, ruling he had knowingly and voluntarily waived his Miranda rights. The court found the coherency of his statements to the police showed he was capable of waiving his rights, and he did not invoke his rights when interviewed by Detective Smith.
B. Governing Law
To protect the Fifth Amendment privilege against self-incrimination, the Miranda rule provides that statements made during a custodial interrogation cannot be admitted as evidence of guilt unless the suspect was advised of the right to remain silent, the right to appointed counsel, and that statements may be used against him or her. (Berkemer v. McCarty (1984) 468 U.S. 420, 428-429.) The Miranda rule " 'presume[s] that interrogation in certain custodial circumstances is inherently coercive' "; accordingly, as a matter of "preventive medicine," "unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded . . ." from the prosecution's case-in-chief. (Oregon v. Elstad (1985) 470 U.S. 298, 305, 307.)
In addition to showing that Miranda advisements were provided, the prosecution must also show, by a preponderance of the evidence, that the defendant voluntarily and knowingly waived the Miranda rights. (Berghuis v. Thompkins (2010) 560 U.S. ___ [130 S.Ct. 2250, 2260-2261] (Berghuis).) A mere showing that a Miranda warning was given and that the accused made an uncoerced statement does not, standing alone, demonstrate a valid waiver. (Berghuis, at p. 2261.) Rather, the prosecution must also show that the accused understood the Miranda rights. (Berghuis, at p. 2261.)
In Berghuis, the Supreme Court clarified that the Miranda waiver need not be formal or express, but rather may be implied from all the circumstances. (Berghuis, supra, 130 S.Ct. at p. 2261 [Miranda waiver "can be established even absent formal or express statements of waiver that would be expected in, say, a judicial hearing to determine if a guilty plea has been properly entered"].) Thus, if "the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver" of the Miranda rights. (Berghuis, at p. 2262, italics added.) Berghuis explained that Miranda's main purpose is to ensure that an accused is advised of and understands the right to remain silent and to counsel, and its core ruling is that unwarned statements may not be used as evidence in the prosecution's case-in-chief. (Berghuis, at p. 2261.) Thus, Miranda imposes a "formalistic and practical" rule on police that prevents interrogation without provision of a Miranda warning. (Berghuis, at p. 2262.) However, Miranda "does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." (Berghuis, at p. 2262.)
Further, Berghuis held that once the police give a Miranda warning, they are not required to obtain a waiver from the defendant before commencing the interrogation; rather, they may conduct the interrogation as long as the defendant does not expressly invoke his or her right to remain silent. (Berghuis, supra, 130 S.Ct. at pp. 2263-2264.) For the defendant's statements to be admissible at trial, the record must show the Miranda warning was provided; if this condition is established, the court may then examine "the whole course of questioning" to determine whether the defendant provided a knowing and voluntary waiver. (Berghuis, at p. 2264.) Reviewing the circumstances in the case before it, the Berghuis court found the defendant had waived his Miranda rights because the record showed he understood his rights; he "engaged in a course of conduct indicating waiver"; and there were no indications of coercion. (Berghuis, at pp. 2262-2263.)
In Berghuis, there was conflicting evidence about whether the defendant verbally confirmed that he understood his Miranda rights. (Berghuis, supra, 130 S.Ct. at p. 2256.) Nevertheless, the court concluded there was ample evidence he understood them, including that he received a written copy of the warnings; the detective determined he could read and write English; he was given time to read the warnings; the detective read the warnings aloud; and the defendant read a portion of the warnings aloud. (Id. at p. 2262.) Further, the defendant engaged in a course of conduct indicating waiver when he answered some questions posed by the detective, rather than saying nothing in response or unambiguously invoking his Miranda rights. (Berghuis, at p. 2263.) Finally, there was no suggestion of coercion; for example, the defendant did not claim he was threatened, injured, or fearful. (Ibid.)
The Berghuis court also addressed the standards to apply when evaluating whether a defendant has invoked his right to remain silent, thus requiring the interrogation to cease. Berghuis held the accused must make an unambiguous assertion of the right, and if the accused makes an ambiguous or equivocal statement or makes no statement, the police are not required to end the interrogation or ask clarifying questions. (Berghuis, supra, 130 S.Ct. at pp. 2259-2260.) Berghuis reasoned: "A requirement of unambiguous invocation of Miranda rights results in an objective inquiry that 'avoid[s] difficulties of proof and . . . provide[s] guidance to officers' on how to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression 'if they guess wrong.' " (Id. at p. 2260.) Further, the court assessed that suppression of a voluntary confession in the face of an ambiguous or equivocal act would place a significant burden on society's interest in prosecuting criminal activity, and " 'full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.' " (Ibid.)
In Berghuis, the defendant was largely silent during a three-hour interrogation, until he eventually made an incriminating statement. (Berghuis, supra, 130 S.Ct. at pp. 2256-2257.) The Supreme Court concluded he had not invoked his right to remain silent, reasoning that he did not say he wanted to remain silent or that he did not want to talk with the police. (Id. at p. 2260.)
On appeal from a denial of Miranda motion, we defer to the trial court's factual findings if supported by substantial evidence, and independently review whether there was a knowing and voluntary Miranda waiver. (People v. Williams (2010) 49 Cal.4th 405, 425.)
C. Analysis
On appeal, Raymond challenges the admission of his statements to Detective Smith, which concerned the Garrison robbery. In support of his claim that he did not voluntarily waive his Miranda rights during this interview, he contends he did not understand his rights and he did not agree to talk to Detective Smith. Under the standards set forth by the United States Supreme Court in Berghuis, these contentions fail.
There is no challenge to Raymond's statements to Officer Quinn and Detective Albrecht as the prosecutor did not submit them into evidence during the trial.
The record shows Raymond "engaged in a course of conduct" reflecting a knowing and voluntary waiver of his Miranda rights when he was questioned by Detective Smith about the Garrison robbery. (Berghuis, supra, 130 S.Ct. at p. 2263.) First, after Raymond was provided the Miranda admonishment by Detective Smith, he did not unambiguously and unequivocally invoke his right to remain silent. When Detective Smith asked him if he wanted to talk about the crime committed on December 30 at the same location as the D incident, Raymond answered, "I don't know what it is. I mean I can listen to know what it is . . . but as far as speaking on it, uh." Raymond's response does not constitute an unequivocal statement that he did not want to talk about the Garrison robbery. Rather, the answer is open-ended, saying he would listen and suggesting he was making no promises that he would talk about it. Given that Raymond did not unambiguously state he did not want to talk, Raymond's contention that the detective was required to cease the interrogation or request clarification, is unavailing. (See Berghuis, at p. 2263.)
Second, considering all the circumstances, the record implicitly shows Raymond knowingly and voluntarily waived his Miranda rights. With respect to a knowing waiver, although Detective Smith did not ask Raymond if he understood his Miranda rights, Raymond had already received the Miranda admonishment on two previous occasions on that same date, and on both occasions Raymond answered affirmatively when asked if he understood the rights. When Detective Smith commented that Raymond had already waived his rights during the earlier interviews, Raymond made no statement indicating he disagreed with this assessment. There is nothing in the record to suggest the affirmative indications of Raymond's understanding of his rights did not carry over to the interview conducted by Detective Smith on the same date.
With respect to a voluntary waiver, the circumstances show there was no coercion during the interview. Raymond agreed to listen to what Detective Smith had to say about the Garrison robbery. Raymond's initial provision of an alibi shows he was willing to talk about the incident and he did not feel compelled to confess. Thereafter, there is nothing to suggest that Detective Smith engaged in any intimidation or aggression that could have caused Raymond to involuntarily change his mind and decide to confess.
Raymond argues his statements were the product of coercion because Detective Smith misled him by stating the victim was "quite positive" about her identification of him, whereas she had only provided a tentative identification. We are not persuaded. Misrepresentations by the police do not necessarily create coercion. (People v. Thompson (1990) 50 Cal.3d 134, 166-167.) However, police falsehoods may vitiate a Miranda waiver when they are "of a coercive nature, and thus reasonably calculated to induce false confessions." (People v. Tate (2010) 49 Cal.4th 635, 684.) For example, the courts have found a misrepresentation to be coercive in nature when the police told the defendant that if he or she did not cooperate, someone close to the defendant would suffer detrimental consequences; i.e., the defendant would lose state financial assistance for a dependent child, or the defendant's friend would lose his job. (Ibid.)
In contrast, the courts have repeatedly concluded that psychological ploys consisting of misstatements about the evidence against the accused do not, standing alone, constitute coercion. (See, e.g., People v. Williams, supra, 49 Cal.4th at pp. 442- 443 [no coercion when police deceptively described eyewitness and fingerprint evidence tying defendant to crime]; People v. Jones (1998) 17 Cal.4th 279, 299 [no coercion when detective implied "that he knew more than he did or could prove more than he could"]; People v. Thompson, supra, 50 Cal.3d at pp. 166-167 [no coercion when police falsely stated there was physical evidence tying defendant to crime].) Detective Smith's statement that Garrison was quite positive about the identification was not a coercive statement that might have caused Raymond to confess even though he was innocent. The statement did not invalidate Raymond's course of conduct indicating he understood his rights and was willing to talk about the Garrison robbery.
Additionally, Raymond asserts he did not voluntarily waive his rights because he told the police he was feeling the effects of his methamphetamine use. Officer Quinn testified at the pretrial hearing that Raymond showed no signs of intoxication. Further, the transcripts of the interviews conducted by the detectives show that Raymond's statements were detailed and coherent. The coherency of his statements contradict his claim that his reasoning faculties were impaired so that he could not knowingly and voluntarily waive his rights.
Consistent with this, at trial D and the officials who interacted with him on the date of his arrest testified he did not appear intoxicated.
The trial court did not err in rejecting Raymond's Miranda challenge to his statements to Detective Smith.
II. Admission of Evidence About Raymond's Possession
of Another Person's Driver's License
A. Background
Raymond argues the trial court abused its discretion by allowing the prosecution to present evidence showing he had another person's driver's license in his backpack when he was detained at the trolley station. He acknowledges that one of the disputed issues at trial was whether he had the intent to steal when he entered D's residence. However, he asserts the evidence lacked probative value and was unduly prejudicial because the owner of the driver's license had no connection to D or Garrison, and there was no showing when he acquired the license.
During the testimony of criminalist John Durina, the prosecutor asked Durina if he had found a driver's license in the name of Tyary Wesley Zimmerman in Raymond's backpack. Defense counsel objected on relevancy grounds; the court overruled the objection; and Durina answered yes to the question. The prosecutor then asked if Durina had found a credit card in the same name. Defense counsel again objected and requested a sidebar discussion.
During the discussion outside the jury's presence, defense counsel argued that evidence of another person's driver's license and credit card was irrelevant and unduly prejudicial. Defense counsel stated the police never asked Raymond about these items and it was possible they belonged to a friend, and it was unduly prejudicial to present the jury with evidence that could be viewed as uncharged misconduct when there was no information on this point. The prosecutor responded the item found in the backpack consisted of an iPod pouch containing Zimmerman's Social Security card, two credit cards, and driver's license, and the evidence was relevant to refute the defense theory that Raymond did not have the intent to steal because he was under the influence of methamphetamine.
The trial court ruled the evidence could be presented because the property obviously did not belong to Raymond, and it was for the jury to decide if there was any evidentiary value to the fact that he possessed them. However, the court stated the prosecutor would not be permitted to argue that the items were stolen because this was not known. When the prosecutor resumed her questioning of Durina, she did not ask any further questions regarding the items belonging to Zimmerman. During closing arguments to the jury, there was no mention of the driver's license evidence.
B. Analysis
Evidence of a crime committed by the defendant that is not charged in the current case is not admissible to show criminal propensity, but it may be admitted to show some other material fact, such as intent. (People v. Jones (2011) 51 Cal.4th 346, 371.) To be admissible, there must be some degree of similarity between the charged crime and the uncharged crime, and the least degree of similarity is needed when the evidence is offered to prove intent. (Ibid.) The conduct during the current crime and the uncharged crime must be sufficiently similar to support an inference that the defendant probably harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) We review the trial court's ruling on these issues for abuse of discretion. (People v. Jones, at p. 371.)
Here, although there was no direct evidence that Zimmerman's items were stolen, the trial court could consider that a person does not typically carry around another person's driver's license, credit cards, and Social Security card. From this, the jury could reasonably infer that Zimmerman's cards were acquired through some type of theft-related activity. However, because the record contains only a bare deduction that the items were stolen but with no information as to how Raymond acquired them, there is no basis to evaluate whether there were any similarities between Raymond's conduct with respect to Zimmerman's cards and his conduct in the charged theft-related offenses. (Compare People v. Jones, supra, 51 Cal.4th at p. 371 [no abuse of discretion in admitting uncharged robbery evidence to prove intent to rob in charged home invasion robbery case; although the robberies were not "particularly similar," they contained "one crucial point of similarity—the intent to steal from victims whom defendant selected"].)
In any event, assuming arguendo the trial court should have excluded the evidence due to the inability to evaluate the similarity between the charged and uncharged misconduct, there is no reasonable probability the verdict would have been more favorable to Raymond absent the error. (People v. Jones, supra, 51 Cal.4th at p. 372.) The only evidence in this regard that was actually submitted to the jury was the possession of the driver's license. This evidence was mild compared to the nature of the home invasion sex offenses committed against D and the armed robbery of Garrison; thus, the uncharged misconduct evidence carried no danger of inflaming the jury's emotions. Further, considering the record as a whole, we are not persuaded by Raymond's assertion that the driver's license evidence was pivotal on the disputed issue of his intent to steal when he entered D's residence because the jury likely inferred from this evidence that he was an experienced thief. The testimony about the driver's license was extremely brief, and the evidence was not referred to in closing argument. In the scheme of the entire trial, there is no reasonable probability the jury would have reached a different verdict if it had not heard about Raymond's possession of another person's driver's license.
III. Sufficiency of the Evidence for Weapon Enhancements
For the D incident, Raymond was charged with (and the jury found true) enhancement allegations that he used (1) a deadly or dangerous weapon (§ 667.61 subds. (a) , (c), (e) & (b), (c), (e), counts 1 through 3; § 12022, subd. (b)(1), count 5), and (2) a deadly weapon (§ 12022.3, subd. (a), counts 1 through 3), based on the use of "a pellet gun." For the Garrison robbery, he was charged (and the jury found true) an enhancement allegation that he used a deadly or dangerous weapon (§ 12022, subd. (b) (1), count 6), based on the use of "a gun."
Raymond argues there was insufficient evidence to support the jury's true findings on the weapon enhancement allegations for the D and Garrison offenses because he did not use operable guns, and the victims testified he did not hold the gun in a manner that suggested he might use it to strike them.
D testified Raymond did not use the gun like a club to hit her; he did not hold it as if he was threatening to strike her; and it was always off to the side or held in his hand. Similarly, Garrison testified Raymond did not hold the gun as if he was going to strike her with it, and she did not believe he was going to use it to hit her.
As we shall discuss, the courts recognize that some objects are inherently deadly or dangerous, whereas other objects are not inherently deadly or dangerous but they may so qualify if they are capable of deadly or dangerous use. Further, the courts recognize that there is a legal distinction between statutes referring to a deadly or dangerous weapon, and those referring solely to a deadly weapon.
A loaded, operable pellet gun is generally classified as an inherently dangerous or deadly weapon, whereas an unloaded or inoperable pellet gun is classified as a noninherently deadly or dangerous weapon. Under the standard applicable to noninherently dangerous or deadly weapons, an inoperable pellet gun may be found to be a deadly or dangerous weapon if the circumstances support that the gun was capable of being used as a club and it can be inferred that the defendant intended to use it as a club should the circumstances require. To establish an inoperable pellet gun is a deadly weapon, there must be a showing the defendant actually used, attempted to use, or threatened to use it as a club.
In our discussion below, we conclude the record supports the dangerous or deadly weapon enhancements for the D and Garrison offenses, but not the deadly weapon enhancements for the D offenses.
A. D Offenses
The information alleged the weapon used by Raymond during the D offenses was a pellet gun. The evidence at trial confirmed this, but it did not show the weapon was operable.
Within two hours of the offenses against D, Raymond was apprehended and found in possession of an unloaded pellet gun that was missing parts necessary to make it operable—the carbon dioxide cylinder and the pellet magazine. At trial D testified the gun found in his possession looked like the gun he pointed at her. No evidence was presented to suggest Raymond had a reason to or might have disposed of these parts after the D incident. Given this evidence, the record does not establish that Raymond used an operable pellet gun during the incident. Apparently recognizing this, in closing arguments to the jury the prosecutor did not claim the prosecution had established the pellet gun was operable, but rather argued the weapon enhancements were proven regardless of the gun's operability. Likewise on appeal, the Attorney General does not argue the pellet gun was shown to be operable, but rather claims the weapon enhancements are supported regardless of operability. Accordingly, we evaluate Raymond's challenge to the weapon enhancements based on the factual predicate that Raymond used an inoperable pellet gun during the incident involving D.
The prosecutor argued: "So in this case, it's not a defense that this gun was not operable. [¶] To be a dangerous weapon does not require that it has to be operable. . . . Mr. Raymond doesn't get a freebie because he terrorized a woman with a gun that turned out to be inoperable. [¶] Now, whether it was loaded at the time, we don't know. It could have been. We do know that when the officers found it, it was not operable."
We note that even when there is no direct evidence that a defendant used an operable gun, the jury may infer this finding based on the defendant's statements and conduct. (See People v. Lochtefeld (2000) 77 Cal.App.4th 533, 536, 541-542 [finding that pellet gun was charged supported by evidence showing defendant told victim he would shoot if victim did not move, and defendant pointed gun at officers]; see also People v. Aranda (1965) 63 Cal.2d 518, 532.) Here, however, the record contains affirmative evidence the pellet gun was not operable.
Due to the distinction between statutes referring to a deadly or dangerous weapon and those referring solely to a deadly weapon, we analyze these two types of enhancements separately.
1. Dangerous or Deadly Weapon Allegations for D Offenses
a. Governing Law
When defining what constitutes a dangerous or deadly weapon, the courts have recognized two categories of weapons. The first category consists of objects that are dangerous or deadly in the ordinary use for which they are designed, such as guns, dirks, and blackjacks; these objects are dangerous or deadly as a matter of law. (People v. Graham (1969) 71 Cal.2d 303, 327.) The second category consists of objects that are not dangerous or deadly in the ordinary use for which they are designed, such as razors, pocket-knives, hatpins, canes, hammers, hatchets, and other sharp or heavy objects; this type of object is dangerous or deadly if it is capable of being used in a dangerous or deadly manner, and "it may be fairly inferred from the evidence that [the defendant] intended. . . to use it as a weapon should the circumstances require . . . ." (Id. at pp. 327-328, italics added.)
The courts have concluded that loaded and operable pellet guns generally fall into the first category of weapons that are dangerous or deadly as a matter of law. (See In re Bartholomew D. (2005) 131 Cal.App.4th 317, 326; People v. Lochtefeld, supra, 77 Cal.App.4th at p. 541.) The Bartholomew court explained: "Unlike a toy gun, which is designed for play and is incapable of shooting a projectile, or a starter pistol, which is not designed to release a projectile but to make a loud noise to signal the beginning of a race, a BB [or pellet] gun is not an imitation gun. It is an instrument designed to shoot by expelling a metal projectile at a target, is commonly recognized as such, and thus . . . is reasonably perceived as capable of inflicting serious injury." (In re Bartholomew D., at p. 326.)
In contrast, the courts have recognized that real unloaded guns, and even toy guns, can be dangerous because they can be used as clubs or bludgeons even though they have no firing capacity. (People v. Aranda, supra, 63 Cal.2d at p. 532; People v. Ward (1948) 84 Cal.App.2d 357, 360; People v. Coleman (1942) 53 Cal.App.2d 18, 28.) Thus, unloaded or inoperable real guns and toy guns fall into the second category of a noninherently dangerous weapon that may be found dangerous if it is capable of being used in a dangerous manner (i.e., as a club) and if the defendant intended to use it as a club should the circumstances require. (See People v. Coleman, supra, 53 Cal.App.2d at pp. 28-29; People v. Freeman (1927) 86 Cal.App. 374, 375-377; see also People v. Graham, supra, 71 Cal.2d at p. 328.) Likewise, an unloaded or inoperable pellet gun falls into this second category of a noninherently dangerous weapon that may be a dangerous weapon if it could have been used as a club.
This second-category test contemplates a review of all the relevant circumstances to determine whether the defendant could have assaulted the victim with the unloaded or inoperable gun or toy gun so as to create a danger of physical injury. (People v. Ward, supra, 84 Cal.App.2d at p. 360 [" 'Notwithstanding the fact that ordinarily and in and of itself the instrumentality may be in fact comparatively harmless, if, considering the attendant circumstances, together with the present ability of its possessor, the instrument is capable of being used in a deadly or dangerous manner, for the purpose of the particular occasion only, the character of the instrument may be so established' "]; People v. Coleman, supra, 53 Cal.App.2d at p. 29; see People v. Aguilar (1997) 16 Cal.4th 1023, 1029.)
For example, in People v. Freeman, supra, 86 Cal.App. at pages 375-377, the court held the circumstances supported that the unloaded gun was a dangerous weapon "although no oral threats were made by either of the defendants, nor was any attempt made by either of them to shoot with such a weapon or to strike the victim of the robbery with it." The Freeman court posited: "In the instant case it is apparent that, although the defendant who had possession of the unloaded pistol at the time the robbery occurred was ten or twelve feet distant from the victim, it was possible for such defendant within a very short space of time to have used the pistol as a bludgeon or club, thus rendering it a most 'dangerous' weapon . . . ." (Id. at p. 377.) Likewise, in People v. Raner (1948) 86 Cal.App.2d 107, the court upheld a dangerous or deadly weapon finding based on the defendant's use of an unloaded rifle during a robbery, reasoning: " 'It is a matter of common knowledge that in committing robbery pistols are frequently used as bludgeons rather than as firearms. The fact, therefore, that a person perpetrating such crime is armed with a pistol is enough to justify the conclusion that the pistol used by him is a "dangerous" weapon . . . , even though it not be loaded.' " (Id. at pp. 108-109, 111; see also In re Christopher R. (1993) 6 Cal.4th 86, 94 [robbery committed with unloaded gun is committed with dangerous weapon].
Similarly, in People v. Coleman, supra, 53 Cal.App.2d 18 and People v. Ward, supra, 84 Cal.App.2d 361, the courts upheld dangerous or deadly weapon findings in cases where the defendant pointed a toy gun at the victim during a robbery. In Coleman, the defendant had threatened to "blow [the victims] to pieces," placed the gun (a nickel-plated toy pistol) at a victim's back, and demanded money; in upholding the dangerous or deadly weapon finding the court noted that pistols are commonly used as bludgeons during robberies. (Coleman, supra, 53 Cal.App.2d at pp. 22, 28-29.) In Ward, the court noted the toy pistol was made out of metal and resembled a real gun in size and shape, and cited case authority recognizing that an unloaded pistol can readily be used as a bludgeon. (Ward, at p. 360.)
It is noteworthy that for purposes of a deadly or dangerous weapon allegation, the above-cited case authority does not require direct, affirmative evidence of the defendant's intent to use an inoperable or toy gun to hit the victim, such as a threat or attempt to strike the victim. Rather, to establish use of a deadly or dangerous weapon, a trier of fact may reasonably infer that a defendant intended to hit the victim with the gun should the circumstances require based on the totality of the circumstances, including the nature of the offense and the object, the manner in which the offense was committed and the object used, and any other relevant facts. (See People v. Coleman, supra, 53 Cal.App.2d at p. 29; People v. Ward, supra, 84 Cal.App.2d at pp. 360; People v. Freeman, supra, 86 Cal.App. at pp. 375-377 [circumstances supported that unloaded gun was dangerous weapon even though defendants made no threats or attempts to use it to strike victim]; see also People v. Aguilar, supra, 16 Cal.4th at p. 1029.)
In support of a contrary standard, Raymond cites People v. Reid, supra, 133 Cal.App.3d 354, where the appellate court reversed a jury's dangerous or deadly weapon use finding even though the defendant held the toy gun to the victim's neck, based on the appellate court's conclusion that "there was no substantial evidence proving [defendant] intended to use the toy gun as a club." (Id. at p. 367; see also People v. Godwin (1562) 50 Cal.App.4th at p. 1574.) To the extent Reid or Godwin suggest that—for purposes of a deadly or dangerous weapon allegation—there must be direct, affirmative evidence of intent to use an inoperable or toy gun to hit the victim, we disagree. As we shall discuss below, a test requiring an affirmative showing of an intent to use the inoperable gun or toy gun as a club is properly applied to a statute referring solely to deadly weapon use, as opposed to a statute referring to deadly or dangerous weapon use. (See People v. Godwin, supra, at pp. 1575-1578 (conc. & dis. opn. of Woods, J.).)
b. Analysis
When reviewing a challenge to the sufficiency of the evidence, we examine the entire record in the light most favorable to the judgment, and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence, to determine if a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (In re Bartholomew D., supra, 131 Cal.App.4th at p. 322.)
Drawing all reasonable inferences in favor of the judgment, the jury could reasonably deduce that defendant intended to use the pellet gun to hit D if she did comply with his demands. D testified Raymond pointed the gun at her as if he was going to shoot her and issued "commands" to her, and she obeyed his commands because she was afraid he would shoot and kill her. The jury could infer from this testimony that Raymond acted in a manner that reflected his determination to commit the sexual assaults and robbery, and that he would not have hesitated to use the pellet gun as a bludgeon if necessary to overcome any resistance. These facts support that Raymond used a dangerous weapon to commit the offenses.
Further, D's testimony that Raymond did not hold the gun as if he was going to strike her did not require the jury to reject the dangerous or deadly weapon use allegations. The jury could infer that Raymond did not need to hold the gun as if he was going to hit D because the mere sight of the weapon terrorized her into compliance. As stated, the jury could reasonably deduce from the circumstances that Raymond was determined to commit the offenses against D, and if she had resisted, he would have readily used the gun in an assaultive fashion to subdue her.
There is substantial evidence to support the jury's true findings on the deadly or dangerous weapon use enhancements for counts 1 through 3 and 5.
2. Deadly Weapon Allegations for D Offenses
However, we do not reach the same conclusion for the enhancement allegations for the D offenses that were based solely on the use of a deadly weapon, rather than a deadly or dangerous weapon.
The courts have recognized that statutory language referring to a deadly or dangerous weapon does not have the same meaning as statutory language referring only to a deadly weapon. (People v. Raner, supra, 86 Cal.App.2d at pp. 111-113; see People v. Aranda, supra, 63 Cal.2d at p. 532.) Generally, a statute referring solely to a deadly weapon is subjected to a stricter standard of culpability than a statute referring to a deadly or dangerous weapon. With respect to an unloaded gun, deadly weapon use requires a showing that the defendant actually used, attempted to use, or threatened to use the gun as a bludgeon or club. (People v. Raner, supra, 86 Cal.App.2d at p. 113 [mere showing that defendant was armed with unloaded rifle during robbery could not support probation-denial finding that defendant was armed with a "deadly weapon"].)
As explained in Raner: "[W]here there is no threat or attempt to use an unloaded gun as a bludgeon, and in fact it is used solely as a firearm pointed at another in a threatening manner, . . . a deadly weapon [offense] . . . is not committed . . . . [¶] The distinction recognized. . . between unloaded guns when used or threatened to be used as bludgeons, and when not so used, is the distinction between unloaded guns as deadly weapons and as merely dangerous weapons." (People v. Raner, supra, 86 Cal.App.2d at p. 113; People v. Brookins (1989) 215 Cal.App.3d 1297, 1307-1308 ["unloaded firearm not used as a bludgeon" is not a deadly weapon].)
D testified that Raymond did not hit her with the gun or hold the gun as if he was threatening to hit her with it. Because there was no evidence showing that Raymond used, attempted to use, or threatened to use, the inoperable pellet gun as a club, the deadly weapon allegations are unsupported by the evidence. Accordingly, we strike the deadly weapon allegations (§ 12022.3, subd. (a)) for counts 1 through 3. This reduces Raymond's determinate sentence by eight years; i.e., the two consecutive four-year sentences for the deadly weapon use enhancements on counts 1 and 2 are removed from the judgment.
B. Dangerous or Deadly Weapon Allegation for Garrison Offense
For count 6 robbery of Garrison, the jury found true the allegation that Raymond used a dangerous or deadly weapon. (§ 12022, subd. (b)(1).) Even assuming arguendo that the jury credited Raymond's statement to the police that he used a broken (rather than operable) BB gun during the Garrison offense, the record supports the dangerous or deadly finding.
Garrison testified that Raymond was not pointing the gun directly at her, but he was holding it at her eye level with his finger on the trigger guard. She testified "he was making it clear, like I've got this." The jury could reasonably infer that Garrison's act of holding the gun with his finger on the trigger guard in close proximity to Garrison meant that he was committed to effectuating the robbery, and he would have readily used the gun to hit Garrison if she had resisted. This sufficed to show dangerous weapon use. As with the D offenses, the fact that he did not overtly threaten to use the gun as a club did not foreclose an inference that he intended to use it in this dangerous fashion should the circumstances require.
IV. Failure To Provide Unanimity Instruction for Burglary-Related Allegations
With respect to the burglary-related allegations for the D incident, Raymond argues there was evidence showing that he could have had a felonious intent upon his entry into multiple locations (i.e., the home, the bedroom, and his return to the living room), but that he may not have had this intent at each of these entries. Accordingly, he asserts that for the burglary-related allegations for which no entry point was specified (i.e., the count 4 burglary, and the burglary-related enhancements for counts 1 through 3 alleged under § 667.61, subds. (b), (c), (e)), the trial court should have provided a unanimity instruction informing the jury that it must unanimously agree which entry established the burglary.
In counts 1 through 3, Raymond was charged with three burglary-related enhancements for each count. The information and verdict forms specified that the first burglary-related enhancement (§ 667.61, subds. (a), (c), (d), sex offense during burglary with intent to commit sex offense) was for entry into the bedroom, and the second burglary-related enhancement (§ 667.61, subds. (a), (c), (e), sex offense during burglary with intent to steal and dangerous or deadly weapon use) was for entry into the home. In contrast, for the count 4 burglary offense and the third burglary-related enhancement (§ 667.61, subds. (b), (c), (e), sex offense during burglary), no entry point was specified.
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A defendant's constitutional right to a unanimous jury verdict requires that when the evidence shows more than one unlawful act that could support a single charged offense, the prosecution must either elect which act to rely upon or the trial court must sua sponte give a unanimity instruction telling the jurors they must unanimously agree which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The unanimity instruction is designed to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agreed the defendant committed. (Ibid.) However, no unanimity instruction is required when the prosecution presents multiple theories regarding one discrete criminal act or event. (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or . . . the 'theory' whereby the defendant is guilty." (Id. at p. 1132.) For purposes of dispensing with the need for a unanimity instruction, multiple acts constitute one discrete criminal event when the "acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct." (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.)
To support his contention that a unanimity instruction was required due to the evidence showing multiple entries that could support burglary, Raymond cites a statement by the California Supreme Court in Russo which refers to the offense of burglary to illustrate the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. The Russo court stated that if the evidence showed two different entries with burglarious intent (for example entry "of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday"), the jury must unanimously agree on at least one of those acts of entry, but if the evidence showed a single entry, the jury did not need to unanimously agree as to the particular burglarious intent. (People v. Russo, supra, 25 Cal.4th at pp. 1132-1133.)
However, in People v. Taylor (2010) 48 Cal.4th 574, 627-628, our high court clarified that evidence of multiple entries within the same home does not necessarily show discrete criminal events requiring a unanimity instruction. As recognized in Taylor, a burglary can be committed even if the defendant did not have the felonious intent upon entry into the home, but only formed the intent upon entry into a bedroom within a home. (See People v. Taylor, supra, 48 Cal.4th at p. 627; People v. Sparks (2002) 28 Cal.4th 71, 73, 86-87.) Notwithstanding this principle, the Taylor court rejected the defendant's contention that there was evidence of two discrete burglaries based on his entry into the home and his entry into a bedroom within the home. The Taylor court reasoned that "the evidence and argument on alternative 'entries' bore on the issue of when defendant's felonious intent arose—whether before entry into the house and/or entry into the back bedroom—and thus concerned the theory of his liability for a singular burglary. '[T]he evidence merely present[ed] the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime.' [Citation.] Under these circumstances, juror unanimity was unnecessary." (Taylor, at pp. 627-628.)
Likewise here, although there were multiple points of entry that could support burglary, the facts did not involve two distinct criminal events (for example, entry into two different residences), but rather one discrete event of entry into the victim's residence. The distinction between the multiple entry points concerned the theory of how the burglary was committed, depending on when the felonious intent was formulated. Under these circumstances, there was no need to provide a unanimity instruction.
V. Sustaining of Objection During Defense Counsel's Closing Argument
Raymond argues the trial court violated his right to a fair trial and to present a defense by sustaining the prosecutor's objection to a portion of defense counsel's closing argument.
The complained-of objection and ruling occurred when defense counsel was presenting an argument to the jury to refute the prosecution's claim that Raymond was not under the influence of methamphetamine at the time of the crimes. Defense counsel argued that because voluntary intoxication can be considered by the jury as a defense to specific intent crimes, the police should have been fair to Raymond and tested his blood for controlled substances immediately upon his arrest. Instead, they delayed the testing, which made the test results less reliable because they were getting further away from the time of the crime and Raymond's methamphetamine levels were dropping. Defense counsel argued this was unfair, and posited the authorities are quick to test for intoxication when people are arrested for driving under the influence, but when the test can provide a defense the authorities are in no hurry to test.
Additionally, defense counsel criticized the prosecutor for attempting to prevent the jury from hearing the evidence of Raymond's statement to a detective that he was under the influence of methamphetamine, and for failing to present the jury with the videotaped interview with the detective so the jurors could evaluate Raymond's demeanor for themselves. In this line of argument, defense counsel referred to a portion of the prosecutor's questioning of the detective during trial, in which the prosecutor asked whether the detective thought Raymond was under the influence of a drug; the detective responded the only indication was that Raymond said he was under the influence; and the prosecutor then admonished the detective not to tell the jury what the defendant said.
At one point during this closing argument, defense counsel stated: "Then they tippy-toe around, the prosecution, without telling you what he said, don't tell me what he said, but did you think this?" This argument referred to the prosecutor's directive to the detective not to tell the jury that Raymond said he was under the influence, but to merely provide the detective's assessment of whether Raymond was under the influence. The prosecutor objected that the argument was inappropriate, and the trial court sustained the objection. This is the ruling now challenged on appeal.
During a subsequent discussion outside the presence of the jury, the prosecutor asserted it was inappropriate for defense counsel to suggest the prosecutor was "hiding the truth" and failing to preserve evidence. Defense counsel asserted that his arguments were proper, and the court admonished defense counsel to "briefly cover" the matter. When the proceedings resumed before the jury, defense counsel continued with his arguments that the prosecutor told the detective not to tell the jury what Raymond said, and the prosecution's failure to present the videotaped interview deprived the jury of the ability to independently verify whether Raymond was "fine" as claimed by the prosecution.
On appeal, Raymond contends the trial court's sustaining of the prosecutor's objection precluded him from presenting an argument to the jury based on the inferences that could be drawn from the police delay in obtaining his blood sample. The record does not support this contention. The prosecutor did not object when defense counsel argued at length about the delay in the blood testing, but only objected when defense counsel implied the prosecutor did not want the jury to hear the evidence of Raymond's statement to the detective that he was under the influence. There is nothing in the record to suggest the jury interpreted the sustained objection to apply to defense counsel's argument based on the delay in the blood testing. The record does not show error in this regard.
VI. Consecutive Sentences for Oral Copulation and Rape
The trial court imposed consecutive sentences of 25 years to life on count 1 (oral copulation) and count 2 (rape), and imposed a concurrent life sentence on count 3 (oral copulation). When imposing consecutive sentences on counts 1 and 2, the trial court cited section 667.6, subdivision (d), which mandates consecutive sentences for specified sex offenses against the same victim that occurred on separate occasions. Raymond argues the consecutive sentences must be reversed because as a matter of law the sex offenses did not occur on separate occasions. Further, he contends the case must be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences and to state its reasons if it selects consecutive sentences. We reject these contentions.
Raymond was sentenced to 25 years to life for the sex offenses based on the enhancement allegation that the offenses were committed during a residential burglary with intent to commit the sex offenses. (§ 667.61, subds. (a), (c), & (d).) Under this statutory scheme, the trial court was required to impose consecutive sentences for the sex offenses in this case if the crimes "involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of section 667.6." (§ 667.61, subd. (i); italics added.) Section 667.6, subdivision (d) defines separate occasions as follows: "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 . . . 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." (Italics added.)
When the trial court finds the sex offenses occurred on separate occasions, imposition of consecutive sentences is mandatory. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1489.) In contrast, when the court finds the sex offenses occurred on the same occasion, it has the discretion (but is not required) to impose consecutive sentences. (See People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263.)
At sentencing, the prosecutor argued the court should find the sex offenses occurred on separate occasions based on the facts showing there were intervening acts between the offenses that gave Raymond the opportunity to reflect and to stop his sexually assaultive behavior. In opposition, defense counsel argued the sex offenses occurred on the same occasion because they were committed during one continuous transaction with no opportunity to reflect. The trial court imposed the 25-years-to-life sentence for the count 1 oral copulation, and ruled the life sentence for the count 2 rape should be consecutive under section 667.6, subdivision (d), and the life sentence for the count 3 oral copulation should be concurrent.
The court's citation to section 667, subdivision (d)—which mandates consecutive sentences for sex offenses on separate occasions—reflects that the court made a separate occasion finding for counts 1 and 2. Raymond's assertion that the trial court could not make this separate occasion finding as a matter of law is unavailing. The record supports that Raymond had the opportunity to reflect between the first oral copulation and the rape and that he chose to resume his sexually assaultive behavior. After committing the first oral copulation, Raymond made the victim get down on her hands and knees and remove her shirt, and he himself unfastened her bra and removed it. The trial court could reasonably find that this activity—which involved a change of position and the removal of clothes—created a break in the sexual interaction that provided Raymond an opportunity to reflect and stop his assault. The trial court did not abuse its discretion in finding the intervening acts between the first oral copulation and the rape warranted a separate occasion finding.
Raymond asserts he did not have the opportunity to reflect because the crimes occurred sequentially and he did not change his location but committed all the offenses in the bedroom. Although the trial court could consider these factors, they are not determinative. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1091-1092; People v. Irvin (1996) 43 Cal.App.4th 1063, 1070.) As stated, the separate occasion finding is supported by the intervening acts between the first oral copulation and the rape.
We are not persuaded by Raymond's citation to People v. Pena (1992) 7 Cal.App.4th 1294, where the appellate court concluded there was no factual support for a separate occasion finding based solely on the intervening act between the offenses of flipping the victim over by violently twisting her legs. (Id. at pp. 1299, 1316 ["a change in positions, alone, is insufficient to provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds"].) We note that in People v. Irvin, the court disagreed with Pena to the extent it suggested that separate occasions requires "a change of location or an obvious break in a perpetrator's behavior." (People v. Irvin, supra, 43 Cal.App.4th at p. 1070.) The Irvin court cited the language in section 667.6, subdivision (d) providing that the duration of time between offenses or a lost or abandoned opportunity to attack are not determinative, and posited that a trial court could find a reasonable opportunity to reflect based on a change of positions during the sexual assault. (Irwin, at p. 1071.) In any event, the facts here show a break in behavior and more than a mere change of position; that is, Raymond made the victim take off her shirt and he unclasped and removed her bra.
Finally, Raymond's contention the case must be remanded for a statement of reasons is unavailing. The separate-occasion finding, which is supported by the record, explains the court's sentencing decision. (See People v. Thomas, supra, 218 Cal.App.3d at p. 1489 [no statement of reasons required when court imposes mandatory consecutive sentences based on separate occasion finding].) Moreover, a statement of reasons is not required when, as here, a court decides to run indeterminate (as opposed to determinate) terms consecutively to one another. (People v. Black (2005) 35 Cal.4th 1238, 1262, fn. 17, disapproved on other grounds in Cunningham v. California (2007) 549 U.S. 270; People v. Arviso (1988) 201 Cal.App.3d 1055, 1058-1060 [imposition of consecutive indeterminate terms is reviewed for abuse of discretion without need for statement of reasons].)
Raymond argues the court erred because it failed to explain why a finding of separate occasions was justified for the first oral copulation and the rape, but not for the second oral copulation (which was sentenced concurrently). The trial court's decision with respect to the second oral copulation count does not detract from the evidentiary support for its separate occasion finding for the first oral copulation and the rape. The finding of separate occasions for counts 1 and 2 stands on its own merits.
Raymond cites People v. Irvin, supra, 43 Cal.App.4th at page 1070, where the appellate court remanded the case because the sentencing court did not "provide a sufficient analysis of the facts to allow" the appellate court to determine why it concluded all 20 sex offense acts occurred on separate occasions. In contrast here, our review of the facts readily reveals support for the separate occasion finding for counts 1 and 2. There is no need for a remand.
DISPOSITION
We modify the judgment to (1) strike the deadly weapon enhancements (§ 12022.3, subd. (a)) for counts 1 through 3, and (2) strike the consecutive four-year term on count 1; the consecutive four-year term on count 2; and the concurrent four-year term on count 3 based on these enhancements. Based on this modification, Raymond's determinate sentence is reduced by eight years. His total sentence is 50 years to life, plus an indeterminate term of eight years four months.
As so modified, the judgment is affirmed. The superior court shall prepare an amended abstract of judgment and forward it to the California Department of Corrections and Rehabilitation.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.