Opinion
F070850
11-02-2016
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO RODRIGUEZ, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CM3081-002)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
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After attacking a woman in an alley, Alberto Rodriguez was convicted of sexual penetration by force, assault with intent to commit a sexual offense, assault by means of force likely to produce great bodily injury, false imprisonment, and robbery. In this appeal he contends: (1) the false-imprisonment conviction should be reversed because that crime was not charged in the information and was not necessarily included in any crime charged in the information; (2) the court erred in failing to give a jury instruction on circumstantial evidence, and defense counsel rendered ineffective assistance by failing to request a jury instruction on the fact that Rodriguez did not testify at trial; (3) the sentences for false imprisonment and assault with intent to commit a sexual offense should have been stayed under Penal Code section 654. We affirm.
FACTS AND PROCEDURAL HISTORY
Based on K.D.'s identification of Rodriguez in a photo lineup, police arrested him on August 13, 2013, two days after the attack. The district attorney filed an information charging him with the following counts: (1) attempted kidnapping (Pen. Code, §§ 209, subd. (b)(1), 664); (2) assault with a deadly weapon, namely, a cement wall (§ 245, subd. (a)(1)); (3) sexual battery (§ 243.4, subd. (a)); (4) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); (5) assault with intent to commit a sexual offense (§ 220, subd. (a)(1)); (6) sexual penetration by force using a finger (§ 289, subd. (a)(1)(A)); (7) sexual penetration by force using an unidentified object (ibid.); and (8) robbery (§ 211). Count 3, sexual battery, was dismissed at the prosecution's request during trial.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
At trial, K.D. testified that she was returning to her apartment in downtown Hanford around 7:00 p.m. on August 11, 2013, after walking around the corner to a store for soda and cigarettes. The way to the rear entrance of the building passed through an alley at the side. As K.D. entered the alley, some men standing by a car and a pickup truck catcalled at her. Rodriguez walked up to K.D., put his arm around her, and pulled her toward him. K.D. pulled away from him and walked faster, but Rodriguez matched her pace and pulled her toward him again as the car followed them with the passenger door open. K.D. tried to reach an area near the rear entrance to the building where there were lights and people inside might hear her screaming for help, but Rodriguez pulled her toward the car and said something about coming to a house. When K.D. said "no," Rodriguez punched her head and face repeatedly with his fists. K.D. tried to guard her head by crouching against a cement wall, but Rodriguez continued hitting her, causing her face to strike the wall.
K.D. testified that Rodriguez then squeezed her neck with his hands until her vision blacked out. She regained consciousness but could not stand and collapsed on the pavement. As Rodriguez tried to get on top of her, K.D. crawled up against the wall and curled herself into a fetal position to try to stop him from raping her. He pulled her pants down to her knees and pulled her underpants part of the way down. K.D. felt his finger and another object—something smooth and cool—in her crotch. The finger and the object penetrated inside the flesh at the opening of the vagina.
K.D.'s testimony on direct examination about exactly how Rodriguez penetrated her was as follows:
"Q. Okay, when you felt this object where did it go?
"A. Where did it go?
"Q. Yes.
"A. Right in my vagina. [¶] ... [¶]
"Q. ... So I don't mean to get graphic with you, but do you use tampons?
"A. Yes.
"Q. This item that you described, would it be—did you feel it in the same place that you would put a tampon?
"A. Yes.
"Q. So it went inside of you?
"A. No, it was just right there at the edge, you know, where like your perineum is, right there.
"Q. So it would be right at the opening of where you put your tampon?
"A. Yeah, like he wasn't able to get it all the way in because I was clenching my legs and, you know, fighting back.
"Q. Okay, you said you also felt his fingers?
"A. Yes.
"Q. Where on your body did you feel his fingers?
"A. In my vagina area.
"Q. Okay, when you describe your vagina area, would you say that his fingers went into the same spot that you described the smooth object going into?
"A. Yes."
Rodriguez withdrew his hand from K.D.'s crotch. She testified, "He stopped. He stood over me, he looked just like in shock, like how is she still fighting, that was kind of like the look he had on his face." Then he grabbed her purse. She tried to hold on to it, but then let go after a few seconds, hoping he would leave. K.D. saw Rodriguez walk away toward the car, carrying the purse. She had a cut above her eye, multiple bumps on her head, a swollen face, an abrasion under her arm where her purse strap had been, bruises on her arms, and a burning sensation in her vaginal area. The purse contained a cell phone, a prescription medication, a lipstick, and a wallet with $22 in cash.
K.D. identified Rodriguez, as he sat in the courtroom, as the perpetrator of the attack.
Some neighbors who had heard K.D. scream came out to the alley and found her lying injured on the ground. One testified that K.D. said her attacker "did stick his fingers in her."
Dr. Mark Hoffman examined K.D. at a hospital around 9:00 the same night. He testified that K.D. told him a man attacked her, threw her to the ground, strangled her, pulled her pants down, and placed his fingers and another object inside her vagina. He examined her and found injuries on her head, neck, arm, knee and back, all consistent with her description of the attack.
Patricia Driscoll, a registered nurse, testified that she performed a sexual assault examination on K.D. that night at 1:15 a.m. In addition to the injuries on other parts of K.D.'s body, Driscoll found redness on K.D.'s outer labia and posterior fourchette. During the examination, K.D. reported pain inside and outside her vagina. When Driscoll put a speculum in place for the examination, K.D. cried out that it hurt. This was not a normal reaction for an uninjured patient. Driscoll opined that her findings were consistent with penetration by a finger or other object. On cross-examination, she stated the injuries to K.D.'s vagina could have been caused by an object used during consensual sex. She also said "[a]nything is possible" when asked whether the speculum could have been a cause of K.D.'s sensation of pain during the exam. Further, a blunt force trauma inflicted through clothing could have caused the injury to the fourchette.
The posterior fourchette is a fold joining the inner labia at the posterior of the vulva. (Steadman's Medical Dict. (25th ed. 1989) pp. 615, col. 1, 620, col. 1.)
Dr. Hoffman also testified about photographs of K.D.'s injuries taken during Driscoll's examination. He opined that the abrasions on the fourchette were consistent with forcible sexual contact. During consensual sex, the area of the fourchette relaxes and retracts. In a sexual assault, however, the area constricts and is often injured. He also stated the fourchette is inside the vagina.
Ruben Vega testified that he was with Rodriguez and two men named Hernan and Eduardo on the night of the attack. They went to a bar and played pool. Afterward, they went out to the parking lot where Vega's pickup truck and Hernan's car were parked. A woman walked by and Rodriguez or Eduardo called out to her. Rodriguez approached the woman. Hernan drove slowly up to Rodriguez and the woman, his passenger door open. Vega backed away from them in his truck and left the parking lot. He heard someone scream as he left.
While Rodriguez was in custody, detectives interviewed him through a Spanish-language interpreter. A video recording of the interview was played for the jury. In it, Rodriguez admitted he had an encounter with K.D. on the night of August 11, 2013. In his version of events, when he met her in the alley after leaving the bar, he asked her if she wanted a ride. She told him to meet her further down the alley, and when he did, she offered to have sex with him for money. He said he had $24 and she said she would take it. When he began touching her, however, she became angry, said she did not want to have sex "like this," and slapped him. He became angry, pushed her down, took her purse, and ran to his friend's car. He said he was not sure why he took the purse. He said he was drunk and did not have a very clear memory of the encounter, but he denied putting his hand inside her pants, pulling her pants down, or knocking her head against the wall. Rodriguez did not testify at trial.
A business near K.D.'s apartment building was equipped with surveillance cameras, which made video recordings of the attack. The recordings were played for the jury. They are not included in the appellate record.
Detective James Edlund interviewed K.D. twice. The first interview was on the night of the attack, August 11, 2013, and the second was the day before trial, October 6, 2014. Defense counsel examined Edlund in an effort to bring out discrepancies between K.D.'s statements in the first interview, the second interview, and her trial testimony. K.D. told Edlund the men's catcalling included "kissing sound[s]," but in her testimony she said she did not recall saying this. She told Edlund that Rodriguez pulled her underpants to the side but testified that he pulled them down. She testified that Rodriguez said something in broken English about going to a house, but did not mention this in her first interview with Edlund. In the first interview with Edlund, K.D. said Rodriguez placed his hand on her shoulder and then moved it to her waist. In the second, she said he grabbed her shoulder. In the first interview, she said Rodriguez grabbed her breast. She did not mention this in the second interview.
Edlund testified he did not remember K.D. saying during the second interview that she felt Rodriguez's finger and another object on her vagina or that she felt his fingers in the place where she inserts a tampon, although her trial testimony included these statements. Subsequently, however, the parties stipulated that K.D. did say these things during the second interview.
Defense counsel also pointed out that Driscoll, the nurse, testified K.D. said Rodriguez told her he was going to abduct her. K.D. did not tell Edlund this.
The jury returned the following verdict: On count 1, attempted kidnapping, not guilty, but guilty of false imprisonment (§ 236), which the jury had been told was a lesser-included offense. On count 2, assault with a deadly weapon, not guilty, but guilty of simple assault (§ 240), also a lesser-included offense. On count 4, assault by means of force likely to cause great bodily injury, guilty. On count 5, assault with intent to commit a sexual offense, guilty. On this count, the jury found not true a sentence-enhancement allegation that Rodriguez personally inflicted great bodily injury on K.D. (§ 12022.8.) On count 6, sexual penetration with a finger by force, guilty. The jury also found not true on this count allegations that Rodriguez personally inflicted great bodily injury on K.D. (§§ 667.61, 12022.8.) On count 7, sexual penetration with an unidentified object by means of force, not guilty. On count 8, guilty of robbery. The jury found true an allegation that the robbery was from K.D.'s person. (§ 487.)
The court imposed the upper term of eight years on count 6, sexual penetration by force, and the upper term of six years, consecutive, on count 5, assault with intent to commit a sexual offense. On count 8, robbery, the court imposed a consecutive term of one year, equal to one-third of the middle term. On count 1, false imprisonment, the court imposed a consecutive term of eight months, also equal to one-third of the middle term. The sentence on count 4, assault by means of force likely to produce great bodily injury, was stayed under section 654. The total prison term was 15 years 8 months.
DISCUSSION
I. Uncharged false-imprisonment offense
Contrary to the language on the verdict form, false imprisonment is not a lesser offense included in attempted kidnapping. A perpetrator can be guilty of attempted kidnapping even though no false imprisonment took place because the perpetrator failed in his attempt to restrain the victim's movement. Rodriguez argues that, for this reason, the jury could not properly find him guilty of false imprisonment, since only attempted kidnapping was charged in the information. Rodriguez is mistaken. As we will explain, his failure to object to the jury instructions on false imprisonment amounted to his implied consent to submit that charge to the jury, and consequently that conviction was appropriate even though it was not charged and was not a lesser offense included in a charged offense.
Ordinarily, due process principles would be offended if a defendant were convicted of an offense that is neither charged in the accusatory pleading nor necessarily included in a charged offense. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369; People v. West (1970) 3 Cal.3d 595, 612.) There is an exception to this rule when a defendant consents to the jury being instructed on an uncharged offense. (People v. Ramirez (1987) 189 Cal.App.3d 603, 622; People v. Geiger (1984) 35 Cal.3d 510, 526 (Geiger), overruled on other grounds by People v. Birks (1998) 19 Cal.4th 108, 136 (Birks).) A defendant can be deemed to have given consent when the court proposes to instruct the jury on an uncharged offense and the defendant makes no objection. (People v. Toro (1989) 47 Cal.3d 966, 978 (Toro), overruled on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; People v. Mata (2013) 57 Cal.4th 178, 186 (Mata).)
That is precisely what happened in this case. After the parties concluded their presentation of evidence, the court and parties discussed jury instructions on the record. At the end of this discussion, the court asked defense counsel, "[A]re the instructions as in your possession at the current moment acceptable to you?" Defense counsel said yes. The packet of instructions included an instruction on false imprisonment in accordance with CALCRIM No. 1240. When the court read this instruction to the jury, defense counsel did not object. Given ample opportunity to object to the submission of the offense of false imprisonment to the jury, the defense elected not to do so and thus impliedly consented.
Rodriguez suggests a somewhat convoluted reason why we should not hold he impliedly consented to the instruction even though he did not object. He maintains the holding of Toro, supra, 47 Cal.3d at page 978—that a lack of objection can be construed as an implied consent in this situation—has been effectively overruled. This argument is based on the facts that Birks, supra, 19 Cal.4th at page 136, overruled one of the holdings in Geiger, supra, 35 Cal.3d 510, and Toro cited Geiger.
The argument fails because the proposition in Geiger overruled by Birks had nothing to do with implied consent via failure to object. Instead, it was about a defendant's right to insist on a jury instruction on a lesser, nonincluded offense. (Birks, supra, 19 Cal.4th at p. 136 [defendant has no such right].) Rodriguez says Toro "based its conclusion that the defendant impliedly consented to the charge in part on the absolute right of a defendant to demand lesser related offense instructions," but this is not correct. Toro based its conclusion in part on the view that instructions on such charges can be beneficial to a defendant, who consequently might wish to accept them without objection when proposed by the prosecution. (Toro, supra, 47 Cal.3d at pp. 974-975.) The Geiger court thought this view helped to show that a defendant should have the right to demand such instructions. (Geiger, supra, 35 Cal.3d at p. 529.) That there turns out to be no such right does not mean the instructions cannot be beneficial to a defendant or that this benefit fails to support the rule on implied consent.
If there were any doubt that Toro remains good law on the point at issue, it would be dispelled by Mata, supra, 57 Cal.4th at page 186. There our Supreme Court stated: "'Assent' ... encompasses positive agreement as well as passive concession. Our discussion of implied consent in [Toro] also supports this conclusion. In Toro, we held that consent to instructions on an uncharged lesser related offense could be inferred from defense counsel's failure to object, and that such failure to object 'bar[s] a contention based on lack of notice.' [Citations.]" (Ibid.) This is a post-Birks reaffirmation of Toro's holding on implied consent.
Rodriguez next contends Toro is distinguishable. He says that in Toro the court was motivated in part by indications in the record that Toro effectively conceded he was guilty of some offense. Toro's counsel conceded during closing argument that Toro stabbed the victim. (Toro, supra, 47 Cal.3d at p. 977.) Rodriguez argues that he, by contrast, never admitted he did anything to restrain K.D.'s liberty. In his police interview, he only said he agreed to pay her for sex and then stole her purse. We do not read Toro, however, as holding that implied consent arises only when a defendant admits he is guilty of some offense related to a charged offense. Declining to object to an instruction on a lesser, nonincluded offense can be a wise backup strategy even when a defendant's primary goal is acquittal of all charges. Defense counsel could reasonably have found it wise in this case. Rodriguez admitted to police he was the person who committed a crime against K.D. in the alley that night, and the jury saw surveillance video of what he did. If the video showed him restraining or trying to restrain her, giving the jury a third option between finding him guilty of attempted kidnapping and finding him guilty of no offense involving restraint was a sound plan. The implied consent rule is applicable. II. Jury instructions
A. Circumstantial evidence
Rodriguez argues the court erred because it did not, on its own motion, instruct the jury with CALCRIM No. 224, which states:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
As we will explain, giving this instruction would have been inappropriate under the circumstances. There was no error.
The principles relevant to this instruction are not in dispute and are concisely stated in the bench notes to the instruction. The trial court has a sua sponte duty to give the instruction "if the prosecution substantially relies on circumstantial evidence to establish any element of the case." (Bench Notes, CALCRIM No. 224 (2016 ed.), p. 63.) But there is no such duty "when the circumstantial evidence is incidental to and corroborative of direct evidence." (Ibid.) In fact, this type of instruction can be confusing and ought not to be given if circumstantial evidence is "not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct ...." (People v. Anderson (2001) 25 Cal.4th 543, 582 (Anderson) [discussing similar CALJIC instruction].)
Rodriguez's contention is that the medical testimony about K.D.'s injuries was circumstantial evidence that she was sexually assaulted. He says this evidence was equally consistent with two conclusions: that Rodriguez assaulted K.D. and inflicted the injuries with his fingers (as the jury found), or that K.D. sustained the injuries in some other way, such as through rough consensual sex with her boyfriend or a traumatic impact of some kind. Rodriguez further argues that, although K.D.'s testimony was direct evidence she sustained the injuries via Rodriguez's assault, the medical testimony was "more than just corroborative" of K.D.'s testimony. In Rodriguez's view, it was prejudicially erroneous not to give CALCRIM No. 224 under these circumstances.
The medical testimony was merely corroborative of K.D.'s testimony, however, for K.D.'s testimony was the "primary means by which the prosecution [sought] to establish" Rodriguez's guilt of a sexual offense. (Anderson, supra, 25 Cal.4th at p. 582.) "[B]y introducing circumstantial evidence merely to corroborate an eyewitness, the prosecution did not substantially rely on such evidence," and the court's omission of the instruction was correct, just as in Anderson. (Ibid.)
Rodriguez's own argument tends to show not only that the court was not required to give the instruction, but that giving it would have been error. He says, "Without CALCRIM [No.] 224, the jury could not have known that the circumstantial evidence had to be not only consistent with guilt, but also irreconcilable with any other rational conclusion ...." But CALCRIM No. 224 obviously is not intended to require acquittal whenever circumstantial evidence is consistent with innocence, even though there is primary direct evidence that suffices to prove guilt.
B. Rodriguez not testifying
Rodriguez next contends his trial counsel rendered ineffective assistance by not requesting an instruction in accordance with CALCRIM No. 355, which states:
"A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
The trial court has no duty to give this type of instruction on its own motion. (People v. Lewis (1990) 50 Cal.3d 262, 282.) Rodriguez did not request it.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) When determining whether counsel's performance was professionally unreasonable, we must consider whether the appellate record affirmatively shows this or whether, by contrast, it is possible that considerations not appearing in the record could have justified counsel's conduct. If the situation is simply that nothing could justify the attorney's action, then we can find ineffective assistance on direct appeal; but if counsel could have had a tactical reason for acting as he or she did, and this reason does not appear in the record, then the matter should be addressed instead in habeas proceedings, where a record of counsel's reasons can be developed. (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 & fn. 1; People v Plager (1987) 196 Cal.App.3d 1537, 1543.)
In this case, it is possible defense counsel could reasonably have believed CALCRIM No. 355 would have been harmful to Rodriguez's interests. As Rodriguez is aware, our Supreme Court has stated that an instruction on a defendant's refraining from testifying can be undesirable from the defense perspective because it can direct the jury's "attention to the fact that the defendant is not testifying at the same time that it cautions the jury not to draw any adverse inferences from such failure to testify." (People v. Stanley (2006) 39 Cal.4th 913, 966.) Defense counsel might reasonably choose not to highlight a defendant's silence.
Nothing in the record in this case is inconsistent with the conclusion that counsel made that choice at trial. Rodriguez now says the jury could have wondered why he made a statement to the police but was silent at trial, and the instruction could have deterred any adverse speculations they might have made about this. It is just as likely, however, that the video recording of Rodriguez's statement to the police satisfied the jurors' desire to hear him giving his side of the story, and that CALCRIM No. 355 would only have stoked suspicions about his in-court silence that would not otherwise have occurred to them. Since the record does not reveal counsel's reasoning on the matter, it would not be appropriate on direct appeal to find ineffective assistance based on the omission of a request for the instruction. III. Section 654
A. Assault with intent to commit a sexual offense
Rodriguez maintains the court should have applied section 654 to stay punishment on count 5, assault with intent to commit a sexual offense, because it was committed as part of the same course of conduct and with the same criminal objective as count 6, sexual penetration by force. The People concede the two offenses were part of the same course of conduct and were committed pursuant to the same objective, but argue that a statutory exception to section 654 justified the imposition of multiple punishments. We agree with the People.
Section 654 provides, in part, as follows:
"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."This statute bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676.)
Section 667.6, however, on which the trial court expressly relied, operates as an exception to section 654. (People v. Hicks (1993) 6 Cal.4th 784, 796-797 (Hicks).) Subdivision (c) of section 667.6 provides in part:
"In lieu of the term provided in Section 1170.1,[] a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment."
Section 1170.1 includes provisions stating how consecutive terms ordinarily are to be calculated. --------
Count 6, sexual penetration by force, is one of the offenses listed in section 667.6, subdivision (e). The trial court therefore was authorized to impose a sentence for count 6 consecutive to the sentence for count 5 (and the other counts) despite section 654.
Rodriguez avers that section 667.6 no longer operates as an exception to section 654 because of an amendment to section 667.6 in 2006. In 1993, when Hicks, supra, 6 Cal.4th 784, held that section 667.6 created an exception to section 654, section 667.6, subdivision (c), included the following language: "'In lieu of the term provided by section 1170.1, a full, separate, and consecutive term may be imposed for each violation of [specified sexual offenses] ... whether or not the crimes were committed during a single transaction.'" (Hicks, supra, at p. 790, italics added.) In 2006, Proposition 83 amended the statute. (Prop. 83, § 11, as approved by voters, Gen. Elec. (Nov. 7, 2006).) The changes included replacing the italicized language with the following: "if the crimes involve the same victim on the same occasion." (§ 667.6, subd. (c).)
According to Rodriguez, this change is significant because Hicks relied on the earlier language. The Hicks court explained that in one version of the bill that became section 667.6, the passage here in question read "'whether or not the crimes were committed with a single intent or objective or during a single transaction.'" The phrase "with a single intent or objective or" was deleted from the bill as enacted. (Hicks, supra, 6 Cal.4th at p. 792.) After reviewing the legislative history, the court concluded: "Although it is unclear why the Legislature removed the reference to 'a single intent or objective' from section 667.6(c), the only reasonable explanation for its retention of the phrase 'whether or not the crimes were committed during a single transaction' is that the Legislature intended to create an exception to section 654 that would allow multiple punishment for separate criminal acts committed during an indivisible course of conduct." (Id. at p. 793.) Rodriguez says this reasoning means the change effected by Proposition 83—from "whether or not the crimes were committed during a single transaction" to "if the crimes involve the same victim on the same occasion"—deprives the statute of its effect of creating an exception to section 654.
The change does not have the significance Rodriguez attributes to it. The phrase "if the crimes involve the same victim on the same occasion" in section 667.6, subdivision (c), contrasts with "if the crimes involve separate victims or involve the same victim on separate occasions" in section 667.6, subdivision (d). Subdivision (c) allows consecutive sentences in the situation described there (a consecutive term "may be imposed"), while subdivision (d) mandates consecutive sentences (a consecutive term "shall be imposed") (italics added). In allowing multiple punishments in one class of cases and requiring them in another, the voters can hardly be deemed to have intended to abolish them in the former class by reimposing section 654's restrictions.
Rodriguez's point could be that an "occasion" is possibly a longer, more encompassing occurrence than a "transaction," and that the voters meant to say that, while consecutive sentences might be called for when a defendant is guilty of enumerated crimes taking place during multiple transactions during a single occasion, section 654 should still be applied to bar multiple punishments if multiple enumerated crimes are committed within a single indivisible transaction. Rodriguez has pointed us to nothing that would indicate the voters had this rather unlikely intent, however.
B. False imprisonment
Rodriguez argues the court should have applied section 654 to stay the punishment for false imprisonment in count 1 because it was part of the same course of conduct and pursuant to the same objective as the assault and penetration in counts 5 and 6. We review under the substantial evidence standard the court's factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective for purposes of section 654. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)
Felony false imprisonment requires the perpetrator to restrain the victim's freedom of movement by "violence, menace, fraud, or deceit." (§ 237.) Fraud and deceit are not at issue here. Rodriguez claims the only time the evidence showed he used violence or menace was when he began striking her, and his acts of striking her were part of the same course of conduct, and had the same objective, as his sexual assault and forcible penetration.
The record does not support his contention. K.D.'s testimony supported the conclusion that Rodriguez restricted her freedom of movement almost from the very beginning of the encounter. After the catcalling, Rodriguez walked up to K.D. and pulled her to him with his arm while his associate followed them up the alley in a car with the door open. Rodriguez's arm interfered with K.D.'s movement while the car limited her path of retreat. Few people isolated in an alley would not feel menaced by behavior like Rodriguez's up to that point. The jury was instructed, in accordance with CALCRIM No. 1240, that "[m]enace means a verbal or physical threat of harm. Threat of harm may be express or implied." Rodriguez does not claim this is an incorrect statement of the law. The court could reasonably find Rodriguez's acts at the beginning of the encounter were an implied threat of harm.
Further, the court could reasonably find that, at this early point, Rodriguez had an objective separate from the objective of sexually assaulting and forcibly penetrating K.D. In his statement to the police, Rodriguez said that, at the beginning of the encounter, he thought K.D. was a prostitute and his intent was to pay her for consensual sex. The court could reasonably find, based on this evidence, that Rodriguez's initial objective when falsely imprisoning K.D. was to corner her for the purpose of proposing and consummating this transaction. It could further find that his intent to force himself on her developed later, when she turned out not to be a prostitute. Thus, the court could reasonably find Rodriguez falsely imprisoned K.D. at the beginning of the encounter with one objective, and assaulted her later with another, distinct objective.
Rodriguez cites People v. Matian (1995) 35 Cal.App.4th 480 for the proposition that felony false imprisonment by menace can be established only by evidence that the defendant used a deadly weapon or verbally threatened harm, and therefore his conduct at the beginning of the encounter could not be a basis for a separate punishment for false imprisonment because he had not yet committed false imprisonment at that time. We do not read Matian as supporting this view. The court in that case merely observed that published cases of felony false imprisonment "generally" involved a deadly weapon or an express threat and that the only evidence of menace in the case before it, which it found insufficient, was the facts that the defendant had committed sexual assaults against the victim a short time before and then glared at her and got up from his chair when she tried to leave. (Id. at pp. 485-487.) This is not a holding that there is no such thing as menace consisting of a threat of harm implied by a course of behavior. We think any woman approached by a stranger in an alley in the manner in which Rodriguez approached K.D. would rightly consider herself threatened by a quite specific and severe type of harm, the type that in fact ensued in this case.
DISPOSITION
The judgment is affirmed.
/s/_________
Smith, J. WE CONCUR: /s/_________
Detjen, Acting P.J. /s/_________
Peña, J.
On cross-examination, defense counsel asked whether the area where the object and finger went was "inside your vagina or outside?" K.D. answered, "It is right outside and inside, it is just a thin skin right there, you know, it is where a baby comes out and it stretches right there." The prosecutor again asked whether the place where the finger and object went was "inside your vagina, or somewhere else?" K.D. said, "It was inside but, you know, there was force there because my legs were shut so tight when it was happening because I was fighting against it ...."