Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA060484, Harvey Giss, Judge.
Edward H. Schulman, 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, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Richard Ruelas, appeals the judgment entered following his conviction, by jury trial, for kidnapping with intent to commit rape, forcible rape (2 counts), forcible sodomy, commercial burglary, vandalism resulting in damage over $400, and possession of cocaine, with an aggravated sex offense enhancement (Pen. Code, §§ 209, subd. (b)(1); 261, subd. (a)(2), 286, subd. (c)(2); 450, 594; Health & Saf. Code, § 11350). Ruelas was sentenced to state prison for a term of 43 years and 8 months to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. The sexual assault.
On the night of November 30, 2007, Maribel D. went to a couple of parties and then to her boyfriend’s house in Sylmar. Her friend Christina and Christina’s boyfriend were also there. At some point, Maribel asked Christina for a ride home because her boyfriend had been drinking and could not drive. Christina declined and Maribel decided to walk home. She left her boyfriend’s house about 3:20 a.m.
All further calendar references are to the year 2007 unless otherwise specified.
As she was walking home, Maribel was talking on a cell phone to her friend, Josh. She was still talking to him when she reached the intersection of Workman and Celis Streets. As she was going down Workman, Maribel was approached by defendant Ruelas. whom she did not know. Ruelas asked where she was coming from. Maribel responding by asking Ruelas where he was coming from. When Ruelas put his arm around her, Maribel told him to back off but he did not let her alone. The next thing Maribel remembered was being on the ground in a residential driveway, screaming.
Ruelas was on top of Maribel and started touching her breasts and her crotch through her clothing. Maribel screamed. Ruelas pulled her across the street and then knocked her to the ground. He got on top of her again as she continued to scream. He put his fingers down her throat and punched her in the head two or three times while straddling her.
Believing she was about to be raped, Maribel asked if he had a condom. Ruelas had her walk with him to an area behind some bushes. She tried to talk him out of assaulting her, saying he did not have to do this kind of thing because he was a good-looking guy. Ruelas became more aggressive. He pulled her pants and underwear down to her knees, bent her over and put his penis into her vagina from behind. Then he put his penis in her anus. Maribel was still holding her cell phone, which continued to ring during the assault.
Afterward, Ruelas said he felt bad. Maribel said it was her fault for walking alone at 4:00 a.m. Ruelas asked if she was going to tell anyone about what happened and Maribel said no because she just wanted to get away from him. She left and walked the four blocks to her house.
Maribel went straight to her bedroom and called Josh. She was screaming and crying and told him she had been raped. At trial, Josh testified he had been on the phone with Maribel while she was walking home and that he heard a man speak to her. Ten or 15 seconds later, he heard Maribel say angrily, “[G]et your fucking hands off me.” The phone call was cut off. Josh kept trying to call her back, but there was no answer. When a connection was finally made, he heard a woman screaming. Then the connection broke off. Unable to re-connect, Josh called 911.
By the time the police called Maribel’s cell phone, she was already home. She took them to the crime scene, gave a report at the police station, and was taken to a medical facility for a sexual assault examination.
Detective Anthony Vairo of the San Fernando Police Department took Maribel back to the crime scene a few days later. She showed him exactly where the assault had taken place. From where Maribel had been initially knocked down in a residential driveway on Workman Street, to the location across the street where the rape occurred, was a distance of 86 feet. The rape occurred next to a Southern California Edison power relay station. The station was surrounded by a wall 15 to 20 feet high. There was a row of bushes a couple of feet in front of the wall. The bushes were about five feet high and there was a clearance of one foot from the ground to the bottom of the bushes. There was a dirt area between the row of bushes and the sidewalk.
2. The property crimes.
On November 30, Michael Villansenor was working at the San Fernando Newsstand on Truman Street. The newsstand was three blocks from where Maribel was raped. Villansenor closed the stand at 7:30 p.m. When the manager, Rudy Ortega, arrived the next morning he found the newsstand in disarray. Panels had been forcibly removed and magazines had been taken. One magazine was partially burnt. Villansenor identified several magazines recovered from the scene of Maribel’s assault as ones carried by the newsstand.
Cruz Rivera was the customer service manager of the Union Bank on Truman Street. During the night of November 30, someone etched graffiti on several glass windows and doors of the bank, as well as on an ATM machine located near the bank’s entrance. A police officer who responded to the scene saw the letters “N-O-B-E-K” etched into a glass door adjacent to the ATM machine.
3. The drug charge.
On December 2, the police executed arrest and search warrants at Ruelas’s residence in Mission Hills. Officers found.11 grams of cocaine base and.32 grams of powder cocaine. In Ruelas’s bedroom, there were several posters with graffiti written on them, including the letters “N-O-B-E-K.”
4. Ruelas’s police statement.
When Ruelas initially spoke to the police, he incriminated himself only in the Union Bank and San Fernando Newsstand crimes. He said he had been partying at a friend’s and drinking a lot of beer. He left around 3:30 a.m. on a bicycle. On Truman Street, he stopped at the bank building, where he picked up a rock and etched his friend’s name into the glass. He also grabbed a few magazines from a nearby newsstand to take home.
Ruelas then rode down Workman toward his house. He dropped the magazines and stopped to pick them up. Then he saw Maribel. They talked and he asked for her phone number, but nothing else happened. When Detective Vairo told him Maribel claimed he had raped her, Ruelas said they had had consensual sex.
CONTENTIONS
1. There was insufficient evidence to sustain the conviction for aggravated kidnapping.
2. The trial court erred by not giving reasons for imposing consecutive sentences on the non-sex offenses.
3. The abstract of judgment contains a clerical error.
DISCUSSION
1. Sufficient evidence of aggravated kidnapping
Ruelas contends there was insufficient evidence to sustain his conviction on count 1 for aggravated kidnapping. This claim is meritless.
a. Relevant law.
Section 209, subdivision (b), provides: “(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.”
The two parts of the test set forth in subdivision (b)(2) “ ‘are not mutually exclusive, but interrelated.’ [Citation.] [¶] In determining ‘whether the movement is merely incidental to the [underlying] crime... the jury considers the “scope and nature” of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong.’ [Citations.] [¶] ‘[The second aspect] includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased. [Citations.]’ ” (People v. Martinez (1999) 20 Cal.4th 225, 233.) The increased risk may be related to either physical or psychological harm. (People v. Nguyen (2000) 22 Cal.4th 872, 886.)
“The essence of aggravated kidnapping is the increase in the risk of harm to the victim caused by the forced movement. [Citation.] We have articulated various circumstances the jury should consider, such as whether the movement decreases the likelihood of detection, increases the danger inherent in a victim’s foreseeable attempts to escape, or enhances the attacker’s opportunity to commit additional crimes.... Although any assessment... necessarily must include a consideration of the actual distance the victim was forced to move [citation], we have repeatedly stated no minimum distance is required to satisfy the asportation requirement [citation], so long as the movement is substantial [citation].” (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.)
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
b. Discussion.
Ruelas claims the forced movement here was merely incidental to the sexual assault because the facts “are distinguishable from Dominguez and more akin to those in Stanworth.” He bases this claim on the assertion that, “[a]ccording to Detective Vairo, if someone were standing between the wall of the relay station and the bushes bent over, one could see the assault by looking carefully toward that area from [the] sidewalk and street.” But this assertion ignores Vairo’s testimony that, because the assault occurred in the middle of the night, even someone looking carefully would not have been able to see what was going on.
Vairo testified the row of bushes was “pretty thick,” and “at least at that time in the morning when this incident happened you really couldn’t see anybody behind it.” There was also this exchange:
“Q. So if somebody is standing between the wall of the relay station and the bushes... and they are bent over, standing outside the bush, by the street side, would you be able to see that person?
“A. I don’t believe so without really carefully looking and better conditions. (Italics added.)
In Stanworth, the victim was walking home from a shopping center in the early evening when the defendant grabbed her from behind and held an ice pick to her throat. He dragged her into an open field about 25 feet from the road and assaulted her there. This did not constitute an aggravated kidnapping because there was “no evidence that the relatively brief movement of the victim... removed her from public view or in any other manner substantially increased the risk, beyond that inherent in the underlying crimes, that she would suffer physical harm.” (People v. Stanworth (1974) 11 Cal.3d 588, 598, disapproved on another ground in People v. Martinez, supra, 20 Cal.4th at p. 237.)
In Dominguez, the defendant “forced the victim in the middle of the night from the side of the road to a spot in an orchard 25 feet away and 10 to 12 feet below the level of the road. Though the distance is not great, an aerial photograph of the scene confirms the victim was moved to a location where it was unlikely any passing driver would see her. Not only was the place to which she was moved substantially below the road – one witness testified it was... down a ‘fairly steep’ hill – it was within an orchard where the trees would also have tended to obscure defendant’s crime from any onlookers. The movement thus changed the victim’s environment from a relatively open area alongside the road to a place significantly more secluded, substantially decreasing the possibility of detection, escape or rescue.” (People v. Dominguez, supra, 39 Cal.4th at p. 1153.)
In the middle of the night, Ruelas forced Maribel from the sidewalk right in front of a house to a secluded area behind a row of bushes five feet high. These facts are much closer to Dominguez than to Stanworth. We conclude there was sufficient evidence to sustain the conviction for aggravated kidnapping.
2. No statement of reasons for consecutive sentences.
Ruelas contends his case must be remanded for resentencing because the trial court failed to state any reasons for imposing consecutive terms on the non-sex offenses: count 5 (commercial burglary at the newsstand), count 6 (vandalism at the bank) and count 7 (drug possession). But Ruelas waived this claim by not objecting below and it is not reasonably probable he would be helped if the trial court were asked to reconsider the sentence.
Ruelas himself cites People v. Morales (2008) 168 Cal.App.4th 1075, which held: “Defendant contends the trial court erred in imposing consecutive sentences... because it failed to state on the record its reasons for its sentencing choice. Although it is true that a trial court errs when it fails to state its reasons for imposing consecutive sentences [citations], defendant waived this issue by failing to raise it in the trial court. Our Supreme Court has ruled that ‘the waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices,’ including its failure to state reasons for those choices. (People v. Scott (1994) 9 Cal.4th 331, 353....) Consequently, ‘complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.’ [Citation.]” (Id. at p. 1084, fn. omitted.)
Ruelas’s related claim of ineffective assistance of counsel, because his attorney did not challenge the consecutive terms, also fails because “[o]nly one criterion or factor in aggravation is necessary to support a consecutive sentence.” (People v. Davis (1995) 10 Cal.4th 463, 552.) Ruelas acknowledges the property crimes involved separate victims and the drug crime was entirely unrelated to the other counts. These factors gave the trial court discretion to impose consecutive sentences. (See People v. Caesar (2008) 167 Cal.App.4th 1050, 1061 [“the naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences”]; People v. Gamble (2008) 164 Cal.App.4th 891, 901 [trial court had discretion to impose consecutive terms for escape and bad check convictions that were unrelated to commercial burglary convictions].) Moreover, the trial court had already mitigated Ruelas’s sentence by imposing the lower term for the burglary conviction.
California Rules of Court, rule 4.425(a), provides that, in deciding to impose consecutive rather than concurrent terms, the trial court should consider the “[f]acts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other;... [¶]... [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” Rule 4.425(b) implicitly embraces a multiple or separate victim rule. (People v. Calhoun (2007) 40 Cal.4th 398, 405-406.)
Hence, Ruelas’s ineffective assistance of counsel claim fails because it is not reasonably probable the trial court would have imposed concurrent terms on counts 6 and 7 had defense counsel objected.
3. Correct abstract of judgment.
Ruelas contends, and the Attorney General agrees, there is an error in the abstract of judgment because it does not reflect that the sentence on count 1 for aggravated kidnapping was stayed “until the defendant completes the sentence on count 2.” We will order this error corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be amended to reflect the fact the sentence on count 1 was stayed pending Ruelas’s completion of the sentence on count 2. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: KITCHING, J., ALDRICH, J.