Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 148446
Margulies, J.
A jury convicted defendant Larry Redic of false imprisonment, kidnapping, and multiple sex offenses against two victims. The trial court sentenced him to an aggregate indeterminate term of 40 years to life in state prison, and consecutive determinate terms aggregating to 15 years. Defendant contends that the trial court erred in admitting a taped statement given to police by one of the victims, and committed various errors in sentencing. We modify the judgment by striking the concurrent sentence of life in prison with the possibility of parole imposed for kidnapping on count eight and instead staying sentence on that count. Except as so modified, we affirm the judgment.
I. BACKGROUND
A. Pleadings
Defendant was charged by information with the following offenses against Jane Doe 1: rape (Pen. Code, § 261, subd. (a)(2); counts three, four, five), attempted sodomy (§ 286, subd. (c)(2); count six), penetration with a foreign object (§ 289, subd. (a)(1); count seven), and kidnapping (§ 209, subd. (b)(1); count eight). The information charged the following crimes against Jane Doe 2: rape (§ 261, subd. (a)(2); count one) and false imprisonment by violence (§ 236; count two). The information further alleged that: (1) counts one, three, four, five, and seven fell under section 667.61 (“One Strike” law); (2) counts one, three, four, five, and seven came within § 667.6, subdivision (d) because the offenses were “one of several/many [sex offenses] involving separate victims”; and (3) counts four, five, six, and seven came within § 667.6, subdivision (c) because each of these offenses “is one of several/many [sex offenses] committed against Jane Doe #1.”
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant pleaded not guilty to the offenses and denied all of the additional allegations. Jury trial commenced on December 5, 2005.
We summarize the trial evidence relevant to the issues raised on this appeal:
B. Prosecution Case
1. Jane Doe 2
After spending the night at her sister’s house, Jane Doe 2 ran into defendant outside a store in Oakland during the morning of June 2, 2004. She did not recognize him at first, but after he told her his name she realized that she had gone out with him 10 years earlier. Defendant asked her to go for a drink with him. She initially declined, but he continued to trying to convince her to go with him. Jane Doe 2 told him she had spent the night at her sister’s house without insulin that she needed to take for her diabetes, and she needed to go home to take her insulin. She needed to give herself insulin four times a day, before breakfast, lunch, dinner, and going to sleep at night. She told defendant she had an appointment that day, but he persisted, and she agreed to go with him to his place. They walked to a store and defendant gave Jane Doe 2 money to buy beer. Defendant ran into two women he knew in front of the store who gave them a ride to defendant’s apartment.
Defendant and Jane Doe 2 entered defendant’s studio apartment. As they were entering, defendant pulled a bottle of “Cisco” out of his back pocket and drank it. She sat on the couch and he sat across from her on the edge of the bed. Defendant kept asking her if she wanted to “get high” with him, but Jane Doe 2 declined. She realized that defendant was almost drunk. Defendant told her that she could stay with him if she did not have a place to stay.
Defendant began smoking crack cocaine and kept trying to convince Jane Doe 2 to take some too. Finally, she took two hits from a pipe he gave her, and felt the effects of the drug only a little. After two hits, she felt terrible and stopped. She had used crack cocaine before but had not had any in three or four months and was trying to stay clean of the drug. Defendant began telling her how beautiful she was and making remarks suggesting that she did not want to be with him because she was “stuck up” and thought she was better than him. Jane Doe 2 became a little scared. She was trying to let defendant know that she was not interested in having sex with him. She was feeling uncomfortable and was trying to tell him that she was not feeling well and needed to go home to get her insulin. Defendant kept assuring her that he would get her home to get her insulin. Jane Doe 2 was becoming more and more fearful. She realized she needed to try to get close to the door if she could. She kept refusing his requests to have sex.
Jane Doe 2 had her jacket on and was trying to talk her way out of the apartment, saying she really needed to get her insulin and easing herself toward the door, because she did not want to have to physically fight defendant to get out. At a certain point she realized she was either going to have to submit to him or fight her way out of his apartment. The next thing she knew defendant was trying to take her clothes off and she was struggling to keep them on. Defendant choked her with his hands and pinned her down. Jane Doe 2 told him he was not going to get away with this, that he would “pay for this.” He was still trying to take off her clothes until she said, “Wait, let me take them off.” She was thinking of escaping and did not want all of her clothes ripped up.
When Jane Doe 2 had taken her clothes off she asked defendant to use protection. He said, “Fuck that,” and proceeded to penetrate her vagina with his penis. Jane Doe 2 was scared but also angry and she repeated that he would pay for this, that her father and brothers would not let him get away with this. He smiled at her threats and kept telling her to shut up. The rape continued for 10 or 15 minutes. Afterward, Jane Doe 2 went to the bathroom to clean herself up with toilet paper. She dropped a couple of the pieces that she had used to clean herself between the toilet and the wall, thinking she could use this as evidence to prove that he had raped her. When Jane Doe 2 came out of the bathroom, defendant acted normal and asked her why she made him treat her that way. He told her he was sorry he had done that but she was going to leave otherwise.
Jane Doe 2 knew she was going into diabetic acidosis due to lack of insulin. She felt nauseous, tired, and very thirsty. She told defendant that she had to go get some insulin. To get him to allow her to leave, she pretended that everything was “cool” between them and offered to give him her telephone number so they could “get together at another time.” He responded, “You ain’t going nowhere. You can get it tomorrow.”
At some point, defendant left the apartment. He told her he had to make a run and would be back. When Jane Doe 2 told him she was going to leave too, he insisted that she wait there until he got back. She agreed but she knew that she was going to try to make a break for it when he left. A couple of minutes after he left she tried the metal security door and found that he had locked her in. She looked around to see how she could get out of the apartment. She looked out the window and decided that it was too far to jump. She started to figure out how she could overpower him when he came back. She looked around for a weapon and found a medium-sized knife that she hid under the mattress. She also found a PG&E bill addressed to him that showed the address where she was, and put it in her purse or a pocket. She was feeling very sick and could barely stand up straight.
Defendant returned to the apartment and started to get high again. He talked about how Jane Doe 2 could move in with him and he would take care of her. She did not take any alcohol or drugs. She kept telling defendant how sick she was, and she vomited in his presence. She was hoping he would get high and drunk enough to fall asleep so she could stab him and get the keys and get out of there. Instead, she fell asleep first. The next thing she remembered was waking up with his penis in her face. He tried to get her to orally copulate him. She was scared that he was going to force her to have sex with him again. She fell back asleep. The next thing she remembered was that it was morning and he said he had some business to take care of. Defendant dressed and left, telling her that when he got back he would go with her to get some insulin. She vomited in the bathroom before he left. By the time he left, she had decided that she would not be there when he got back. She would jump out of the window or beat on the wall to get the neighbor’s attention so she would not be trapped in there again. Jane Doe 2 took a shower because she felt she had to. Once defendant left, she discovered that the security gate was unlocked and she could walk out. At that point, she was so sick that she could barely walk. She went to the neighbor’s apartment and collapsed on the floor when the neighbor answered the door. Jane Doe 2 told the neighbor that she was diabetic and needed help, and asked her to call 911.
Registered nurse Kathleen Cosentino saw Jane Doe 2 in the hospital emergency room at 9:45 a.m. on June 3, 2004. Jane Doe 2 told her that she had used crack cocaine the previous day, that she had been held against her will for about 24 hours, and that she had been raped and choked. Cosentino immediately reported the information to the Oakland Police Department.
A physician’s assistant who examined Jane Doe 2 found abrasions in the left groin area and three abrasions in the posterior fourchette, the skin between the vagina and anus, one of which was about one centimeter in length and the other two about one-half centimeter in length. These were consistent with sexual assault.
Semen found on Jane Doe 2 matched defendant’s DNA profile and occurs with a frequency of less that one per 1.8 trillion persons.
2. Jane Doe 1
On Saturday, June 19, 2004, Jane Doe 1 had been washing clothes and visiting at her friend Janet’s apartment in Oakland. The two split a six-pack of beer. Jane Doe 1 was also taking Vicodin for pain due to a hysterectomy five months previously. As she was crossing a street on her way home from Janet’s, someone she later identified as defendant ran up behind her and stuck something hard against her back. She thought it was a gun. Defendant said, “Keep walking bitch [¶] . . . [¶] [or] I’ll kill you.” She did not feel the hard object at her back again after defendant first came up behind her. They passed under a freeway overpass, where defendant grabbed her breasts hard with both hands.
They kept walking until they arrived at defendant’s apartment. As they started up the stairs, they encountered three men. Jane Doe 1 tried to get the attention of one of the men who seemed less intoxicated or more trustworthy than the other two but she could not make eye contact with him. She still believed defendant had a gun with him. Defendant and Jane Doe 1 walked up a couple of flights of stairs and entered an apartment. The hallway was dark and she asked defendant to turn on the lights, but he said, “No, bitch.”
Defendant put a pillowcase over Jane Doe 1’s head, pushed her down on the bed on her stomach, and threw a quilt over her. She felt her shorts being pulled down and a cold liquid being poured on her buttocks. She could feel defendant trying to insert his penis in her anus but he was unable to do so. He also tried to enter her vagina from behind but that too failed so he used his fingers. He flipped her over and entered her vagina. When she screamed at one point, he told her to shut up and threatened to kill her. She could hear people talking in the next apartment. She banged on the wall and screamed. Defendant hit her in the face and she started bleeding on her shirt. Defendant made her take it off and he gave her a white t-shirt to wear.
When she testified at trial, Jane Doe 1 could only remember defendant penetrating her vagina twice. In a tape recording made nine hours after the rape, and played for the jury, she told police that defendant had penetrated her three separate times and that he used his fingers for two or three minutes. On the tape, she said that the first penetration lasted 30 minutes, the second time it was 20 or 25 minutes, and the third time it was about 15 minutes. She stated on the tape that he put his fingers inside her at the same time that he had his penis in her vagina the first time, and again for another two or three minutes after he had stopped.
After the third penetration, defendant got up and went into the kitchen. Jane Doe 1 got off the bed and ran out of the apartment. As soon as she got out of the apartment, she almost collided with a police officer who had been called by a neighbor who heard her screaming. She pointed to defendant who was exiting the door of the apartment and said he had just raped her. Defendant ran from the police. He jumped off of a second story balcony into an alley and escaped.
Jane Doe 1 was transported by ambulance to a hospital. When she was in the ambulance, Jane Doe 1 found a silver-colored pipe in her bag that she believed was the pipe defendant used to make her think he had a gun, and turned it over to the police. She identified the pipe in court.
A neighbor of defendant’s testified that on June 19, 2004, she heard a fight in his apartment and a woman crying. The fight got louder and she heard the woman say, “Get off of me.” She heard a male voice saying “shut up” several times. The fight went on for 20 or 30 minutes. Another neighbor heard a woman banging on the wall and yelling, “Somebody, help me,” or “Somebody, call the cops.”
C. Defense Case
Defendant testified as follows:
1. Jane Doe 2
Defendant and Jane Doe 2 had a three-month relationship in 1995. He ran into her on June 2, 2004, just after he had purchased some crack cocaine. He asked her if she wanted to get high and have sex. She agreed. They were both already talking about sex on the way to his apartment. At a liquor store on the way to his apartment, he ran into another female with whom he used to have sex, and paid her and the friend she was with to give Jane Doe 2 and him a ride to his apartment. They offered to come up to his apartment but he told them “one was enough.”
At the apartment Defendant and Jane Doe 2 talked and smoked crack. They had consensual sex one time about 30 or 40 minutes after they got to the apartment. Afterward, they talked, smoked more crack, and played dominoes. Defendant asked Jane Doe 2 for sex again later, and she declined because she did not want to go back to the same type of sex-and-drugs relationship they had before. He agreed with that. He cooked dinner for her. She looked good and was not complaining about anything. Around 7:30 p.m., defendant left to get some more crack for them to smoke. He did not lock the door. He was gone for about an hour. She was concerned about why he had been gone so long. They smoked crack until about 9:30 p.m. After that, Jane Doe 2 helped to groom his hair. They smoked more crack, and he asked her for sex again but she was only interested in smoking crack. She talked him into going out to get more crack and he did not come back until about 6:45 a.m. He left the door unlocked. When he came back Jane Doe 2 was in the shower. Defendant saw some of his belongings on the bed and saw that she was getting ready to steal them and leave. He took the items she was going to steal and walked out of the apartment with them. Two days later he was told Jane Doe 2 had a “diabetic fallout.” She had never said anything to him about being a diabetic.
2. Jane Doe 1
Defendant met Jane Doe 1 on June 19, 2004, in an area known for prostitution. She wanted to smoke crack in exchange for sex, and he agreed. They walked back to his apartment. He did not press a pipe into her back. He did not touch her inappropriately during the walk. He purchased some crack cocaine on the way, which they smoked once they got to his apartment. Defendant asked Jane Doe 1 for a specific kind of sex and she took her clothes off. He rubbed some oil on their genitals but he was unable to become erect. She complained about some pain in her stomach and showed him a scar on her stomach. Fifteen minutes later they tried to have sex again but without success. They tried three times. He never put his penis in her vagina or her rectum that night. He only rubbed her vagina with his fingers. He did not put a pillowcase over her head or hit her. He got mad and yelled at her to leave when she told him she just wanted to smoke crack. She threw a tantrum, screamed, and accused him of raping her. Defendant threatened to hit her with a “Cisco” bottle if she did not leave, although he would not have hit her. Jane Doe 1 put her clothes on and he let her out of the screen door, which was locked. She was still yelling. He walked out of his apartment when she did and knew there was going to be a problem when he heard the police ask her something. Defendant ran from the police because he did not want to be arrested for something he did not do and because he was already on probation. He turned himself in four days later.
D. Verdict, Sentencing, and Appeal
The jury found defendant guilty as charged. The trial court sentenced him to a term of 15 years to life on count one, a consecutive term of 25 years to life on count three, consecutive determinate terms of six years each on counts four and five, a consecutive determinate term of three years on count seven, and to concurrent terms of two years, three years, and life in prison with the possibility of parole, respectively, on counts two, six, and eight. The court ordered that defendant’s life sentence on count eight run concurrently with the sentence imposed on count three, and that it be stayed pursuant to section 654. The total term imposed was 15 years, followed by 40 years to life, in state prison.
Defendant timely appealed.
II. DISCUSSION
Defendant makes the following contentions on appeal: (1) Jane Doe 1’s taped statement to police was improperly admitted into evidence and requires the reversal of his third rape conviction against her; (2) no substantial evidence supported sentencing him to consecutive terms under section 667.6, subdivision (d) for his multiple offenses against Jane Doe 1; (3) sentencing under section 667.6, subdivision (d) violated defendant’s due process right to proper notice; (4) the imposition of full-term consecutive sentences under section 667.6, subdivision (d), violated Blakeley v. Washington (2004) 542 U.S. 296 (Blakeley); (5)his sentence for false imprisonment should have been stayed pursuant to section 654; and (6) the court erred in sentencing him to a concurrent term for aggravated kidnapping.
Defendant has also requested that we conduct an in camera review of the sealed transcript of a discovery hearing conducted by the trial court outside of defense counsel’s presence pursuant to section 1054.7. Following the hearing, the trial court determined that there was good cause under the statute for the prosecutor to limit its production to the defense of certain information that had come into its possession because providing the information would have risked “threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” (§ 1054.7.) Based on our review of the transcript, we find no error in the trial court’s resolution of this issue.
A. Admission of Jane Doe 1’s Statement
Jane Doe 1’s statement was admitted into evidence as a past recollection recorded under Evidence Code section 1237. That section provides: “(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness’ memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness’ statement at the time it was made; [¶] (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an accurate record of the statement.”
Defendant concedes that the first three foundational elements required by Evidence Code section 1237 were established by the testimony. Jane Doe 1 testified that she gave the statement recorded on tape when the facts were fresh in her mind, and that the statements were true. Police Officer Eric Karsseboom testified that he taped Jane Doe 1’s statement and explained his purpose in doing so. But defendant contends that neither witness established the fourth foundational element, that the tape was an accurate record of Jane Doe 1’s statement.
As an initial matter, we hold that defendant waived his present objection. The court and both parties recognized that the testimony of both Karsseboom and Jane Doe 1 would be required in order to establish all of the foundational elements required by section 1237, and that Karsseboom was not scheduled to testify until later. The court specifically stated, and defendant’s trial counsel concurred, that (1) authentication of the tape, and (2) whether the tape was made for the purpose of recording the witness’s statement at the time it was made, were the two foundational gaps that Jane Doe 1 and Karsseboom would have to fill in. The court proposed to allow the taped statement after Jane Doe 1 testified, subject to a motion to strike if Karsseboom’s and Jane Doe 1’s testimony ultimately failed to establish all necessary foundational elements. Although defense counsel expressed concern that the motion to strike procedure would not protect his client against possible prejudice from the jury hearing the tape, he did not specifically object to it. Moreover, he made no motion to strike, either after Jane Doe 1 testified or after Karsseboom and Jane Doe 1 had both testified as to the foundation for the tape’s admission. In our view, defendant therefore forfeited his present objection that the prosecution never established the fourth foundational element for the tape’s admissibility. (See People v. Lang (1989) 49 Cal.3d 991, 1020 [failure to make motion to strike waived claim that prosecution never established all preconditions for admissibility of evidence].)
Even assuming for the sake of analysis that defendant preserved his present objection, we find that Jane Doe 1’s testimony did provide sufficient evidence from which it could be inferred that the tape was an accurate recording of her statements to police. The prosecution initially established through Jane Doe 1’s testimony that she had listened over the preceding lunch hour to a recording of a statement that she had given to Officer Karsseboom, that the recording that was to be played for the jury was the same recording she had just listened to, and that she recognized her voice on it. She further testified that she was answering questions posed to her by Karsseboom on the tape, and that she gave the statement at 9:00 a.m. on June 20, 2004. The prosecutor also elicited testimony from Jane Doe 1 that: (1) it was hard for her to listen to the tape, (2) she had been up all night at the time she gave it, (3) her words sounded muffled on the tape because she was crying during the interview, and (4) the tape was upsetting for her to listen to because it “brought back a lot of things.” Finally, Jane Doe 1 confirmed the prosecutor’s representation that she “said actually in that statement that [she was] raped three times.”
These statements support a reasonable inference that the tape the jury heard accurately recorded statements that Jane Doe 1 gave to police the morning following her June 19, 2004 encounter with defendant, including in particular her statement that defendant had committed three acts of rape against her. Although defendant claims that only Karsseboom was capable of authenticating the accuracy of the tape recording, we find no such limitation implied either in the statute itself or in the comment that accompanies it.
B. Consecutive Sentencing Under Section 667.6, Subdivision (d)
1. Substantial Evidence Claim
Defendant was convicted of four sex offenses against Jane Doe 1—three counts of rape (counts three, four, and five) and one count of penetration with a foreign object (count seven). Based on section 667.61, the court first sentenced defendant to a term of 25 years to life on count three. Based on the mandatory provisions of section 667.6, subdivision (d), the trial court thereafter sentenced him to full consecutive terms on counts four, five, and seven. As to each of the latter three offenses against Jane Doe 1, the court stated: “The evidence clearly supports it, that prior to the commission of this offense, the defendant had a reasonable opportunity to reflect upon his actions, and nevertheless resumed sexually assaultive behavior.”
Section 667.6, subdivision (d) provides in relevant part: “A full, separate, and consecutive term shall be imposed for each violation of [specified sexual offenses] 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.”
Defendant first contends that his offenses against Jane Doe 1 did not occur on “separate occasions” for purposes of subdivision (d), and that the evidence failed to show any intervening events that provided him with a “reasonable opportunity to reflect” after which he chose to resume his assaultive behavior. (§ 667.6, subd. (d).) We disagree with defendant’s view of the law and the evidence.
Defendant relies chiefly on two cases, People v. Pena (1992) 7 Cal.App.4th 1294 (Pena) and People v. Corona (1988) 206 Cal.App.3d 13 (Corona). In Pena, the defendant raped his victim and then turned her over and orally copulated her. (Pena, at pp. 1299, 1316.) The appellate court overturned consecutive sentences imposed for these offenses under section 667.6, subdivision (d), holding that the offenses occurred on a single occasion with no reasonable opportunity to reflect between the two acts. (Pena, at p. 1316.) The Pena court relied in part on Corona, which held that successive acts of digital penetration, oral copulation, and rape against a victim were not subject to subdivision (d) because there was no evidence of any interval between the offenses affording an opportunity for reflection nor of any cessation of assaultive behavior between them. (Corona, at p. 18.)
The Corona and Pena holdings were discussed as follows in People v. Irvin (1996) 43 Cal.App.4th 1063 (Irvin) at pages 1070–1071: “In Corona, the prosecutor took the position there were only two episodes of sex offenses, stating, ‘ “it is difficult to argue that the oral copulation and foreign object rape, occurring just prior to the rapes, are themselves separate episodes.” ’ [Citation.] Such a concession is remarkable since [section 667.6,] subdivision (d) provides ‘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.’ . . . [¶] [Pena], which relies upon Corona, merely upholds the trial court’s findings on the issue of ‘separate occasions’ noting an appellate court is ‘not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection.’ [Citation.] [¶] To the extent the facts of Corona, [or] Pena . . . suggest a finding of ‘separate occasions’ requires a change of location or an obvious break in a perpetrator’s behavior, we disagree. Subdivision (d) provides otherwise. What the trial court must decide is whether ‘the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.’ A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. [This is] the antithesis of a consensual sexual encounter and should not be viewed the same way.”
In this case, there was substantial evidence before the jury—in Jane Doe 1’s recorded statement to Officer Karsseboom—that defendant penetrated Jane Doe 1’s vagina with his penis three times, the first time for 30 minutes, the second for 20 to 25 minutes, and the final time for 15 minutes. Jane Doe 1 further stated that between the second and third penetrations defendant struck her in the face to stop her from screaming. There was also substantial evidence on the tape that he stopped between acts of penile penetration and committed a separate act of digital penetration that lasted for two or three minutes. On this record, a reasonable trier of fact could well have found that defendant had a reasonable opportunity for reflection between each of the sexual offenses he committed against Jane Doe 1, but nonetheless chose to resume his assaultive behavior.
2. Due Process Claim
Defendant argues that sentencing under section 667.6, subdivision (d) was improper because he was misled by the information into believing that counts four, five, and seven against Jane Doe 1 would be subject to sentencing under subdivision (c) of the statute, not subdivision (d). He points out that the references to subdivision (d) in the information in connection with counts four, five, and seven, alleged that these counts came within section 667.6, subdivision (d) because the offenses were “one of several/many [sex offenses] involving separate victims.” It should be noted that the heading accompanying each of these subdivision (d) allegations read in relevant part: “SEX OFFENSES-SEPARATE VICTIMS OR OCCASIONS CLAUSE . . . .”
Section 667.6, subdivision (c) provides for discretionary consecutive sentencing for multiple sex crimes committed against the same victim on a single occasion: “In lieu of [a reduced subordinate term sentence of one-third of the middle term under section 1170.1] a full, separate, and consecutive term may be imposed for each violation of [specified sexual offenses] if the crimes involve the same victim on the same occasion.”
We agree that these allegations failed to invoke the separate occasions portion of section 667.6, subdivision (d) that the trial court ultimately relied on in sentencing defendant under counts four, five, and seven. However, in our view, as long as the evidence supports the application of that provision there is no due process requirement that it be noticed with particularity in the information. We agree with the analysis adopted in People v. Reynolds (1984) 154 Cal.App.3d 796 at pages 810–811: “[W]hile the facts giving rise to most enhancements must be charged and found, ‘enhancement[s] arising from consecutive sentences result from the sentencing judge’s decision to impose them, and not from a charge or finding.’ This clearly should be the case with regard to consecutive sentences imposed pursuant to sections 667.6, subdivisions (c) and (d). Those sections only affect the length of the consecutive sentence (whether it is full or reduced). They do not change the fact that the consecutive sentence is imposed for the underlying crime which has clearly been charged in the complaint and information. There is nothing else to charge or find . . . . [Citation.] [¶] Defendant was specifically charged with the crimes for which the consecutive terms were imposed. No further pleading . . . is required.”
There is also no statutory pleading requirement under section 667.6 as there is, for example, in connection with California’s One Strike Law. (See § 667.61, subd. (j).)
Even if due process did require a specific separate occasions allegation under section 667.6, subdivision (d), defendant’s pleading claim would still fail. He waived any such claim by failing to raise it at the sentencing hearing. (See People v. Scott (1994) 9 Cal.4th 331, 348–358 [with the exception of claims that a sentence is unauthorized by law, sentencing objections are waived if not timely raised at the sentencing hearing]; cf. People v. Mancebo (2002) 27 Cal.4th 735, 749–750, fn. 7 [the waiver rule does not apply to a defendant’s claim that his sentence was imposed in violation of One Strike law’s express requirements].)
3. Blakeley Claim
Defendant argues that the imposition of full consecutive terms under section 667.6, subdivision (d) violated his Sixth Amendment and due process rights under Blakeley, since the sentences were based on trial court findings, not jury findings, that he “had a reasonable opportunity to reflect upon his actions, and nevertheless resumed sexually assaultive behavior.”
As defendant recognizes, People v. Black (2005) 35 Cal.4th 1238 (Black I), at pages 1261–1264, held that there is no federal constitutional right to a jury trial on factual issues relating to the imposition of consecutive sentences. The California Supreme Court recently reaffirmed that aspect of Black I after the case was remanded from the United States Supreme Court for reconsideration in light of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]. (People v. Black (2007) ___ Cal.4th ___ [62 Cal.Rptr.3d 569, 585–587] (Black II).) Accordingly, based on Black I and Black II, we reject defendant’s claim that his sentencing under section 667.6, subdivision (d) violated his Sixth Amendment right to a jury trial under Blakeley.
We find no cognizable error in the trial court’s sentencing of defendant to full consecutive terms under counts four, five, and seven.
C. Staying of False Imprisonment Sentence
Defendant maintains that his concurrent sentence of two years for the false imprisonment of Jane Doe 2 should have been stayed under section 654. He points out that section 654 applies where there is a course of conduct that violates more than one criminal statute but nevertheless constitutes an indivisible transaction directed at a single criminal objective. (See People v. Perez (1979) 23 Cal.3d 545, 551; People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
The jury in this case was instructed that defendant was accused of unlawfully restraining, confining, or detaining Jane Doe 2 by means of violence or menace. (See §§ 236, 237.) “Violence” was defined in the instruction as “the exercise of physical force used to restrain over and above the force necessary to effect the restraint.” “Menace” was defined as “a threat of harm express or implied by word or act.” The verdict form given to the jury referred to the crime as “false imprisonment by violence.”
The prosecution argued to the jury that before locking Jane Doe 2 in his apartment defendant had attacked and raped her with sufficient force and violence to cause tears in her posterior fourchette and scratches on her skin. According to the prosecutor, defendant’s violent conduct before and during the rape terrified her and later made her reluctant to scream for help or take other possible measures for escaping from the locked apartment for fear of provoking defendant to further violence if he returned before she could get away.
Defendant discounts the prosecution’s false imprisonment theory, and maintains that his conviction for felony false imprisonment could only have been based on his pre-rape conduct of physically attacking and restraining Jane Doe 2 as she was trying to walk out of his apartment. Defendant points out that his later act of locking the victim in would only have supported a conviction for misdemeanor false imprisonment because it involved no violence or menace. Therefore, the jury’s guilty verdict on the false imprisonment charge necessarily had to be based on the same acts of force that immediately preceded and were intended to accomplish the rape. Defendant argues that under his theory of the basis for the guilty verdicts on counts one and two, the false imprisonment was no more than a means of accomplishing the rape, and the violent conduct used to accomplish it was the same as that used to accomplish the rape. On this theory, defendant’s sentence for false imprisonment falls squarely within section 654, and must be stayed.
Alternatively, if there is any doubt about the basis for the jury’s verdict, defendant contends that we must apply the principle of lenity in these circumstances and assume that the jury convicted him of the crime that results in the least punishment, i.e., the crime that would result in a stayed sentence under section 654. (See People v. Coehlo (2001) 89 Cal.App.4th 861, 885–886 [applying the rule of lenity for resolving ambiguities in jury verdicts].)
We are not persuaded. Defendant continued to keep Jane Doe 2 in his apartment after completing the rape for which he was found guilty in count one. The threat of further harm if she tried to leave was palpable. Defendant let Jane Doe 2 know that he had been rough with her and choked her because she was going to leave otherwise. When Jane Doe 2 told defendant she needed to go out to get some insulin, he responded, “You ain’t going nowhere. You can get it tomorrow.” The false imprisonment may have begun as a way to carry out defendant’s rape of Jane Doe 2 but it continued after the rape and necessarily had another criminal objective—either to keep Jane Doe 2 available for further sexual exploitation or to keep her from reporting her rape to the police. That continuing false imprisonment was felonious because it was effectuated both by locking Jane Doe 2 into the apartment and by defendant’s implicit threat to further harm her if she tried to leave, which he had already proven himself capable of doing. We are not constrained to accept defendant’s account of the factual basis for the jury’s guilty verdict which discounts the evidence of menace, the jury instructions, and the prosecutor’s closing argument.
The trial court did not err in imposing a concurrent sentence for defendant’s false imprisonment conviction.
D. Sentence for Count Eight
The trial court ordered that defendant’s sentence for count eight, kidnapping under section 209, subdivision (b)(1), run concurrently with the sentence imposed on count three and that it be stayed under section 654. Defendant contends, and the People properly concede, that the term for count eight should have simply been stayed. (See People v. Deloza (1998) 18 Cal.4th 585, 592.) Accordingly, we shall order that the abstract of judgment be amended to reflect this.
III. DISPOSITION
The judgment is modified to strike the concurrent sentence imposed for kidnapping on count eight and instead to provide that sentence be stayed on that count under section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract of judgment to the California Department of Corrections.
We concur: Stein, Acting P.J., Swager, J.