Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA067006, Tomson T. Ong, Judge. Modified in part, vacated in part, affirmed in part, and remanded with directions.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VOGEL, J.
Jose Reyes was convicted of one count of first degree residential burglary, three counts of forcible rape (each with a true finding that the rape was committed during a residential burglary), and one count of making criminal threats. (Pen. Code, §§ 459, 261, subd. (a)(2), 667.61, subds. (a), (d), 422.) He was sentenced to state prison for three consecutive terms of 25 years to life for the rapes, and eight consecutive months for the criminal threats. He appeals, claiming a variety of sentencing errors. We vacate part of Reyes’s sentence, modify another part, remand for resentencing, and otherwise affirm the judgment.
Undesignated section references are to the Penal Code.
FACTS
As she was returning home on July 29, 2002, Yanet R. saw Reyes, who did not live in her Long Beach apartment complex, walking down the stairs of her building. She went to bed shortly after midnight, but was awakened by someone touching her right foot. As she tried to sit up, the intruder jumped on top of her, pushed her down on the bed, placed a pillow over her face, and told Yanet he was “crazy” and not to scream because he had a gun and “would kill [her].” Yanet believed she could die and was “very scared.”
Yanet initially tried to struggle, but Reyes was able to pull off her underpants, separate her legs, and put his flaccid penis in her vagina. He removed his penis and rubbed it against her legs until it was erect, then reinserted it in Yanet’s vagina. He removed his penis a second time, and inserted it a third time. He said he would stop pushing the pillow against her face if she would not scream -- otherwise he would kill her. The intruder ejaculated between Yanet’s legs and got off Yanet, leaving the pillow on her face. He told her that if she called the police he would come back and kill her, and that he would be watching. He left, and the door closed. She was scared, felt paralyzed, and did not move for some time. When Yanet was able to move, she grabbed the phone but found it was not working. She found another phone and called 911, but “couldn’t get the words out” to the operator, and her “legs were shaking.”
The police arrived just before 3:00 a.m. on July 30 and found Yanet “visibly upset, crying, shaking, and disoriented.” A window close to her locked front door was open about six inches, and the screen over it had been pulled away from the glass. Yanet was examined at the hospital, and a DNA profile of the attacker’s semen collected from Yanet was later entered into a DNA data bank. In the spring of 2005, a detective received word that Reyes was a potential DNA match, executed a search warrant for his saliva, and learned that
Evidence of similar break-ins committed by Reyes was introduced at trial. (Evid. Code, § 1101.)
Reyes’s DNA matched the DNA from the semen sample found on Yanet following the sexual assault. Reyes was charged with the crimes noted at the outset (allegations that he had suffered four prior strikes were included but ultimately dismissed). At trial, the People presented evidence of the facts summarized above. In addition, Yanet identified Reyes as the man she saw walking down the stairs of her apartment building, and said her attacker spoke with a Spanish accent. A criminalist opined there was a one in eighteen quadrillion chance that another person had the same genetic profile as Reyes. The jury convicted Reyes as charged.
DISCUSSION
I.
Reyes contends the findings on the section 667.61 allegations must be reversed because the jury was incorrectly instructed on the elements of the allegations. We agree there was error but find it was harmless.
Section 667.61 (the “one strike” law) mandates an indeterminate sentence of either 25 years to life (subd. (a)) or 15 years to life (subd. (b)) when a defendant is convicted of certain forcible sex offenses (subd. (c)) committed under specific aggravating circumstances (subd. (d)). (People v. Jones (2001) 25 Cal.4th 98, 103.) The information in this case alleged that the forcible rapes (counts 2, 3, and 4) were committed during a residential burglary within the meaning of section 667.61. The offenses specified in subdivision (c) of section 667.61 include forcible rape, and one of the “circumstances” specified in subdivision (d) of that statute is that the defendant committed the specified offense “during the commission of a burglary of the first degree . . . with intent to commit an offense specified in subdivision (c).” (§ 667.61, subds. (c), (d)(4).)
Theft is not an offense specified in subdivision (c), meaning that the section 667.61 allegation and “one strike” punishment of 25 years to life does not apply where the defendant intends to and does commit a theft. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1274-1275.) It was therefore error for the trial court to instruct the jury with regard to the section 667.61 allegation that the People were required to prove (1) that Reyes entered an inhabited house (2) intending to commit theft or forcible rape and (3) committed theft or forcible rape before escaping to a place of temporary safety. The words “theft or” should have been excluded from the instruction.
But the error was harmless. The evidence was that upon entering Yanet’s apartment, Reyes touched her foot, jumped on her, removed her underpants, raped her, threatened her, and left. Reyes’s DNA matched the DNA of Yanet’s attacker. There was no evidence that Reyes took anything from the apartment or demanded money or valuables from Yanet, and therefore no factual basis for a conclusion that Reyes entered the apartment with an intent to commit a theft. Because the jury found Reyes guilty on all three counts of forcible rape, the only possible theory supporting the jury’s conclusion that the one strike allegations were true was that Reyes entered Yanet’s apartment with the intent to commit rape. Under any standard of review, the “theft” reference was harmless. (Chapman v. California (1967) 386 U.S. 18; People v. Sengpadychith (2001) 26 Cal.4th 316, 326; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Estrada, supra, 57 Cal.App.4th at p. 1276.)
II.
Reyes contends the trial court erred in sentencing him to three consecutive terms of 25 years to life for the forcible rapes (counts 2, 3, and 4). He relies on the language of former section 667.61 (in effect at the time he committed his crimes and was sentenced) that a life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion” (§ 667.61, subd. (g), italics added, Stats. 1998, ch. 936, § 9), and contends the rapes were committed on a single occasion. The Attorney General agrees, and so do we. We remand for resentencing on counts 3 and 4.
Former section 667.61 provided at subdivision (g) that “[t]he term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Stats. 1998, ch. 936, § 9.) Effective September 20, 2006, section 667.61 was amended to state that “[f]or any offense specified in paragraphs (1) to (7) inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section 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), Stats. 2006, ch. 337, § 33.) At all relevant times, section 667.6, subdivision (d), has provided in pertinent part that, “[i]n 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 has 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.” (Stats. 2002, ch. 787, § 16; Stats. 2006, ch. 337, § 32.)
A.
The trial court chose count 2 as the base term and sentenced Reyes to 25 years to life on counts 2, 3, and 4 (§ 667.61, subd. (a)), opting to make the three life terms consecutive because there was “significant planning in which the crime was carried out [indicating] a measure of premeditation, and [Reyes] has a prior serious record as outlined in the probation officer’s report.” The court imposed eight consecutive months for the criminal threats, and stayed sentence for the residential burglary (§ 654).
B.
In People v. Jones, supra, 25 Cal.4th at pages 103-107, the Supreme Court considered the meaning of “single occasion,” which was used but not defined in former section 667.61, subdivision (g), and determined it meant the crimes had to be “committed in close temporal and spatial proximity.” Jones explains that the Legislature’s use of the term “single occasion” differed from the term “separate occasion” used in section 667.6, subdivision (d), which implies the “defendant had a reasonable opportunity for reflection” -- meaning that the “reasonable opportunity analysis” applicable to the latter section does not apply to the limitation of life terms under former section 667.61, subdivision (g). (People v. Jones, supra, 25 Cal.4th at pp. 105-107.)
According to Jones, the harshness of the punishment (a life term sentence) and the lack of definitive legislative direction inures to the benefit of a defendant and “points to the conclusion that the Legislature intended to impose no more than one such sentence per victim per episode of sexually assaultive behavior.” (People v. Jones, supra, 25 Cal.4th at p. 107.) Here, as in Jones, the rule results “in a single life sentence, rather than three consecutive sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location.” (Ibid; People v. Fuller (2006) 135 Cal.App.4th 1336, 1343; People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.) On remand, the sentences imposed on counts 3 and 4 must be determinate terms.
C.
In a related argument, Reyes contends that any sentence on counts 3 and 4 cannot be consecutive to count 2. We disagree, but believe this decision should be made by the trial court on remand.
Although former section 667.61, subdivision (g), limited the number of life terms under the “one strike” law, it provided that “[t]erms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” Section 667.6, subdivision (d), “mandates full, separate, and consecutive sentences for certain sex offenses [including rape] ‘if the crimes involved separate victims or involve the same victim on separate occasions.’” (People v. Jones, supra, 25 Cal.4th at p. 104.)
“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.” (§ 667.6, subd. (d).)
It follows that, on remand, the trial court must determine whether the three rapes were “committed on separate occasions” (People v. Brown (1994) 28 Cal.App.4th 591, 601), and whether consecutive sentencing is appropriate.
We summarily reject Reyes’s contention that Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] applies to consecutive sentencing decisions. (People v. Black (2007) 41 Cal.4th 799, 820-823.)
III.
Although the abstract of judgment accurately reflects the trial court’s oral pronouncement that, pursuant to section 654, no sentence would be imposed for the count 1 burglary conviction, the clerk’s minutes of the sentencing hearing inaccurately reflect that the court imposed and stayed a six-year sentence on count 1. Reyes contends, the Attorney General concedes, and we agree that the trial court could not and did not impose a sentence on count 1. (§ 667.61, subd. (f); People v. Mancebo (2002) 27 Cal.4th 735, 742.) Because the record of the court’s oral pronouncements controls and the minutes must accurately reflect what occurred at a hearing (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Zackery (2007) 147 Cal.App.4th 380, 388), the clerical error must be corrected on remand.
IV.
Reyes contends the sentence imposed for his conviction for criminal threats (count 5) should have been stayed. (§ 654.) We disagree.
Section 654 provides that 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. . . .”
In People v. Britt (2004) 32 Cal.4th 944, 951-952, the Supreme Court noted the “test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ (Neal v. State of California [(1960)] 55 Cal.2d [11,] 19.)”
Reyes contends his multiple offenses were incident to a single objective -- accomplishing the rape without discovery. But in addition to immobilizing and threatening to kill Yanet during the rapes, it is undisputed that Reyes told Yanet after he had stopped raping and physically overpowering her that if she called the police he would come back and kill her and that he would be watching. Contrary to Reyes’s arguments, it is clear from the prosecutor’s closing argument that he was relying on this latter threat (as opposed to the multiple threats made during the course of the rapes) as the basis for the criminal threat count.
The prosecutor argued in closing that “count 4 is when [Reyes] puts [his penis] back in after it had fallen out. Then what she says is right before he pulls it out and then she feels wetness between her legs. That’s her quote. And that’s what she said happened. She said he repeats the threat to kill her if she screams or says anything or calls the police, he will come back and kill her. It’s again -- count 5, that’s criminal threats. He has the pillow over her head. She knows the assailant is in the room. She hears the hesitation. She doesn’t take the pillow off because she is numb. He hesitates and gives the threat again before he leaves. ‘If you call the police, I’ll kill you.’”
The trial court impliedly found that Reyes’s objective in committing the rapes (sexual gratification) was separate from his objective in making the criminal threat (to avoid capture and prosecution), and substantial evidence supports that finding. (People v. Osband (1996) 13 Cal.4th 622, 730.) Where as here there was a “separate act of violence against an unresisting victim to facilitate escape or to avoid prosecution,” the objectives may be found not necessary or incidental to one another for purposes of section 654. (People v. Nguyen (1988) 204 Cal.App.3d 181, 193; People v. Foster (1988) 201 Cal.App.3d 20, 27-28.)
V.
Reyes contends the $20 “court security fee” imposed pursuant to section 1465.8, subdivision (a)(1), is constitutionally infirm and must be stricken because he committed his crimes in June 2002, before the statute became effective (Stats. 2003, ch. 159, § 25, eff. Aug. 2, 2003, operative Aug. 17, 2003). (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 9; § 3 [no part of the Penal Code “is retroactive, unless expressly so declared”].) For the reasons stated in People v. Wallace (2004) 120 Cal.App.4th 867, we disagree -- the “fee” may properly be imposed because of its “nonpunitive objective” of providing funds for court security. (Id. at p. 875; see also People v. High (2004) 119 Cal.App.4th 1192, 1199 [comparing legislative use of the word “fee” versus “penalty” for an assessment].) Moreover, we agree with the Attorney General that the fee must be increased to $100, representing $20 for each of Reyes’s five convictions “as the statute dictates.” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)
As relevant, section 1465.8 states that “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars . . . shall be imposed on every conviction for a criminal offense . . . .” (Italics added.)
We are aware that the issue is currently pending before the California Supreme Court. (People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415 [court security fee cannot be imposed retroactively], and People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 [court security fee may be imposed although crimes occurred before effective date of statute because the history, purpose and impact of the law reveals legislative intent to apply statute retroactively].)
VI.
The Attorney General contends a mandatory “state court construction penalty” should also be imposed on Reyes pursuant to subdivision (a) of Government Code section 70372. We disagree. The section was enacted in 2002 and became effective January 1, 2003 (Stats. 2002, ch. 1082, § 4), after the crimes in this case were committed. While the construction penalty has a fundraising purpose, it also has a “punitive” purpose, and imposition of the penalty would consequently run afoul of the prohibition against ex post facto laws. (People v. High, supra, 119 Cal.App.4th at pp. 1195-1199.)
Government Code section 70372, subdivision (a), states as relevant that “there shall be levied a state court construction penalty, in addition to any other state or local penalty . . . in an amount equal to five dollars . . . for every ten dollars . . . or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .”
In his opening brief, Reyes explained that the trial court had miscalculated the number of custody credits he was entitled to, and that he had requested a correction from the trial court. He also reserved the right to ask us to do so in the event the trial court did not, but he has since informed us that the trial court made the requested adjustment in April 2007. The issue on appeal is therefore moot.
DISPOSITION
The sentences imposed on counts 3 and 4 are vacated, and the judgment is modified by increasing the $20 fee imposed pursuant to section 1465.8, subdivision (a)(1) to $100; in all other respects, the judgment is affirmed and the cause is remanded with directions to the trial court to (1) resentence Reyes on counts 3 and 4, (2) determine whether the sentences on counts 3 and 4 should be consecutive, (3) correct its minutes of the September 13, 2006 sentencing hearing to show that no sentence was imposed for the burglary conviction (count 1), and (4) issue a corrected abstract of judgment and forward it to the Department of Corrections.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.