Opinion
D074200
09-26-2018
THE PEOPLE, Plaintiff and Respondent, v. AUGUSTIN SALAS, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1670021) APPEAL from a judgment of the Superior Court of Riverside, Mac R. Fisher, Judge. Affirmed. Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Augustin Salas guilty of attacking Jane Doe, convicting him of three counts of sexual penetration by force; one count each of kidnapping, making criminal threats, and false imprisonment; and two counts of domestic violence battery. On appeal, Salas raises three arguments based on what he suggests is a lack of substantial evidence. He contends, first, that the record lacks sufficient evidence to support the asportation element of the kidnapping conviction, because he did not move Doe a sufficiently substantial distance. Second and third, Salas argues that, because the record lacks sufficient evidence to support three separate offenses of sexual penetration, the jury's conviction on one of the sexual penetration counts must be reversed, and the trial court erred in sentencing him to consecutive terms based on the court's finding that each of the three violations occurred separately.
We disagree and will affirm. As we explain, substantial evidence supports a finding that Salas sufficiently moved Doe for purposes of kidnapping; and substantial evidence supports a finding that Salas sexually penetrated Doe three times, for purposes of both the convictions and the sentencing.
I.
STATEMENT OF THE CASE
Based on events that occurred on August 23, 2015, the district attorney's office charged Salas with: three counts of sexual penetration by force (Pen. Code, § 289, subd. (a)(1); counts 1-3); kidnapping with the use of a deadly or dangerous weapon, namely, a knife (§§ 207, subd. (a), 12022, subd. (b)(1); count 4); criminal threats with the use of a deadly or dangerous weapon, namely, a knife (§§ 422, subd. (a), 12022, subd. (b)(1); count 5); false imprisonment (§ 236; count 6); and two counts of misdemeanor domestic violence battery (§ 243, subd. (e)(1); counts 7-8).
Further undesignated statutory references are to the Penal Code.
The case went to trial in December 2016, and prior to the jury's deliberations, the court dismissed the section 12022, subdivision (b)(1) enhancements (i.e., use of a knife)—at the People's request in count 4, and at Salas's request in count 5. The jury convicted Salas on all counts, and in February 2017, the court sentenced Salas to a total prison term of 23 years. As relevant to this appeal, the court ruled that, for each of the three convictions of sexual penetration by force, Salas's middle term sentence of six years was to run consecutively—for a total of 18 years on counts 1-3.
Salas timely appealed.
II.
STATEMENT OF FACTS
Given the substantial evidence standard of review we will apply (see pt. III.A., post), we review the record " 'in the light most favorable to the judgment.' " (People v. Powell (2018) 5 Cal.5th 921, 990 (Powell).) In addition to the trial testimony, exhibits at trial included an audio recording and a typed transcript of an interview of Doe by the deputy sheriff who arrived on the scene less than one half hour after the events at issue.
The incident at issue in this case occurred on August 23, 2015, at Doe's apartment in a large apartment complex in Moreno Valley. Doe shared her apartment with Salas, their six-year-old daughter, and two of Doe's children from a prior relationship. At that time, Salas and Doe had known each other for approximately seven years and lived together for roughly five of those years. Once they moved in together, they agreed that if either struck the other, then the striker would move out of the apartment.
Three months prior to the incident, due to differences between Doe and Salas, they discontinued their sexual relationship and planned to separate. Doe slept in one bedroom with the three children, and Salas slept in the second bedroom.
On August 17, 2015, Salas and Doe argued, and when she began to ignore what he was saying, Salas became angry and slapped Doe with his hand on the back of her head above the neck. Doe gave Salas one week in which to leave the apartment, and a few days later she and the children went to stay with her brother in Riverside. Doe and Salas did not speak for days after the slap, and Doe ignored Salas's attempts to contact her once she left.
On the day Salas was planning to move out of the apartment, August 23, 2015, Doe returned to the apartment at 7:00 a.m. to get a change of clothes and to shower; Salas was asleep in his room, and Doe went into the bathroom. After the shower, Doe left the bathroom with a towel wrapped around her body. Meanwhile, Salas, who had gotten out of bed and was wearing only his boxer shorts, followed her into her bedroom. Sobbing, Salas begged Doe not to leave. The parties then began to argue, and the matter escalated to a physical struggle, during which Salas told Doe he wanted to have sex with her one last time, pulled off Doe's towel, and began touching her all over. Doe resisted, and Salas persisted.
Salas knew that Doe did not like, and indeed was afraid of, anyone touching her anus. Intentionally trying to hurt her during their struggle, Salas placed his fingers on Doe's "back part." Stating without qualification that Salas did not touch her vagina at any time, Doe explained that, at one point while she was on her back on the bed, Salas "stuck both of his hands inside and he stuck all of his fingers inside like this from behind and pulled me. He grabbed me." (Italics added.) Doe continued: Salas then held her down on the bed with one hand on her throat and "with the other hand he stuck his fingers inside of me . . . ." At this point, Doe broke away, moving to the corner of the bed. Salas then moved to the edge of the bed, restrained her again—this time, grabbing and lifting her feet in the air—and "stuck his fingers inside me again." (Italics added.) Only after Doe "started screaming really loud[ly]" did "he pull[] his hand out."
Although Doe had difficulty breathing, she did not lose consciousness.
Doe described the foregoing struggle as having lasted approximately five minutes. According to Doe, during this five minutes, Salas would "calm down and do it again." In response to the specific question, "So how many times did he stick his fingers inside?" Doe replied, "About three times."
After Salas calmed down enough to give Doe her clothes, he left her room. Doe dressed and went into the living room where she sat down and cried. Approximately 10 minutes later, Salas had dressed and joined Doe in the living room. After a brief conversation, Salas again got upset; and he raised his hand, threatened to hit Doe, and said, " 'Matter of fact, . . . I'm going to grab a knife. I'm going [to] bury it in you and then I'm going to bury it in me.' "
Barefoot, Doe ran out of the second floor apartment, past the outside of the apartment next door, and down approximately half of the 16 stairs that led to the ground floor before Salas caught up to her. Salas then grabbed Doe by the hair, dragged her approximately 15 feet up the stairs and back into the apartment—through the living room, all the way to the kitchen, where he opened a drawer—and grabbed a large carving knife. Doe knocked the knife out of Salas's hand, broke loose from his grip, and ran into the dining room where Salas again confronted her.
At this point, Salas started laughing, explaining that he just wanted to scare Doe; but then the laughing changed to yelling and insults. The yelling and insults turned to calm, and Salas left for work, having already packed and confirmed that he would be gone by the end of the day.
Within 15-20 minutes, a Riverside County deputy sheriff arrived. He found Doe in the living room of the apartment, visibly upset and crying. The officer interviewed Doe, recording a detailed statement of the events that preceded his arrival.
The deputy sheriff spoke only English, and Doe spoke only Spanish. Doe's former husband, who spoke English and Spanish, was present and translated. A California certified transcriber and translator provided a certified copy of the interview in English, which the parties stipulated could be entered into evidence at trial as an accurate transcription and translation of the audio interview. (See fn. 2, ante.) The recording, as well as a certified transcription and translation, were trial exhibits.
At the end of the interview, the deputy sheriff called an ambulance to take Doe to the hospital. She was experiencing chest pains, and he wanted her to be examined by a Sexual Assault Response Team member in any event. When she arrived at the emergency department around 10:30 a.m., Doe complained of rectal pain and explained to the nurse that her boyfriend had sexually assaulted her by pushing her onto the bed and inserting his fingers into her rectum.
Salas confirmed much of Doe's testimony in a recorded interview he gave to a deputy sheriff on the morning of August 23, 2015, after the ambulance had taken Doe to the hospital. First, consistent with Doe's statement, Salas admitted that, on August 17, 2015 (six days before the sexual assault), he slapped Doe hard enough to make her cry. Salas further acknowledged that earlier in the morning of August 23, 2015, when he first saw Doe after her shower, he took off her towel, grabbed her, threw her onto the bed, lied on top of her, and asked her to have sex with him one more time. In addition, Salas admitted that he grabbed Doe's buttocks and inserted his fingers into her anus—but said that he penetrated her only once. Finally, after Doe ran out of the apartment and down the stairs, Salas confirmed that he ran after her and grabbed her—but stated that he grabbed her hand and shirt, not her hair.
A Spanish speaking deputy sheriff recorded an interview with Salas after he had been given and waived his Miranda rights. Like the transcribed interview with Doe, a California certified transcriber and translator provided a certified copy of Salas's interview in English, which the parties stipulated could be entered into evidence at trial as an accurate transcription and translation of the audio interview. The recording, as well as a certified transcription and translation, were trial exhibits.
At trial, Doe denied that, on the date in question, Salas penetrated her anus or forced her to return to her apartment when he grabbed her as she fled down the outside stairs of the building. Most of the evidence to the contrary, described ante, came from Doe's recorded statements to the deputy sheriff. In an effort to impeach Doe's trial testimony, the People presented expert testimony from a 20-year veteran of the Riverside Police Department who specialized in domestic violence matters. He testified that victims of a single incidence of domestic abuse commonly "deny or minimize what happened to them." He confirmed that this denial or minimization is "further impacted" when a domestic violence victim shares a child with an abuser, because the victim does not want the child's life adversely affected by the "abuser getting into trouble."
According to the detective, domestic violence generally is "abuse committed between two people that have an intimate relationship. . . . [E]verything from verbal to physical abuse. Any type of unwanted harassment."
III.
DISCUSSION
In this substantial evidence appeal, Salas challenges the sufficiency of the evidence to support findings that: (1) under the totality of the circumstances, the distance Salas moved Doe was " 'substantial in character' " for purposes of the asportation requirement of kidnapping under section 207, subdivision (a) (see People v. Martinez (1999) 20 Cal.4th 225, 237 (Martinez)); and (2) Salas digitally penetrated Doe three separate times for purposes of both the conviction of three counts under section 289, subdivision (a)(1)(A), and the sentencing under section 667.6, subdivision (d). As we explain, because the record contains substantial evidence to support the findings at issue, Salas did not meet his burden of establishing reversible error.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (Powell, supra, 5 Cal.5th at p. 990.) In doing so, we " 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Ibid.)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " (People v. Elliott (2012) 53 Cal.4th 535, 585.) In fact, "the testimony of a single witness is sufficient to support a conviction," unless such testimony describes facts or events that are "physically impossible or inherently improbable." (Ibid.; accord, People v. Barnwell (2007) 41 Cal.4th 1038, 1052 ["Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding."].) As particularly applicable here, where " 'the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890; accord, People v. Ghipriel (2016) 1 Cal.App.5th 828, 832 [" 'It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.' "].)
In short, we may not reverse a judgment following a jury verdict for insufficient evidence " 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.) A. Substantial Evidence Supports the Finding That, for Purposes of the Asportation Requirement of Kidnapping, the Distance Salas Moved Doe Was Substantial in Character
The jury convicted Salas of kidnapping Doe in violation of section 207, subdivision (a). To prove this crime, the prosecution was required to prove beyond a reasonable doubt not only that Salas unlawfully moved Doe by the use of physical force or fear without her consent, but also that "the movement was for a substantial distance." (People v. Williams (2017) 7 Cal.App.5th 644, 670.) The only issue Salas raises in connection with his conviction for kidnapping is whether the record contains substantial evidence to support a finding that he moved Doe "a substantial distance"—which is commonly referred to as the "asportation" element of the crime of kidnapping (People v. Rayford (1994) 9 Cal.4th 1, 14 (Rayford)).
"Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a).)
For purposes of determining asportation, to support a kidnapping, the movement of the victim must have been " 'substantial in character' "—which allows the jury to consider "more than actual distance." (Martinez, supra, 20 Cal.4th at p. 235; accord, id. at p. 236 ["nothing in the language of section 207[, subdivision ](a) limits the asportation element solely to actual distance"].) In order "to direct attention to the evidence presented in the case, rather than to abstract concepts of distance," the appropriate factors to consider include "not only the actual distance the victim is moved, but also . . . whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Id. at p. 237.) We will now consider the evidence in support of the judgment, not in support of a different outcome, as to each of these factors.
The trial court instructed the jury as follows: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances related to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, gave the attacker a greater opportunity to commit additional crimes, or decre[ase] the likelihood of detection." (See CALCRIM No. 1215.) Salas does not suggest the court erred in giving this instruction.
Actual Distance. When Salas grabbed Doe as she ran down the stairway outside her apartment building, she was halfway down to the sidewalk of the apartment complex. Salas dragged her back up the stairs (approximately 5 feet), across the upper landing to her apartment door (approximately 10 feet), into her apartment, and across the living room to the kitchen—for an actual distance of at least 15 feet plus the length of the living room. While not a great distance, we cannot say as a matter of law that it is insignificant. For example, in 1959 when the principal consideration under section 207, subdivision (a), was the actual distance the victim was moved, the victim's movement from a bedroom, into a corridor, down 14 steps and then 15 feet was sufficient evidence to support a conviction for kidnapping. (People v. Phillips (1959) 173 Cal.App.2d 349, 351.)
Increased Risk of Harm. In mid-morning daylight, Salas grabbed Doe on the outside stairway of her apartment building; screaming for help, she was running to the ground level sidewalk at, according to the deputy sheriff, "a very large apartment complex." After grabbing her, Salas forcefully moved Doe to the inside of a closed apartment and across one room to the kitchen area farther away from the door. In doing so, Salas increased the risk of harm to Doe both by restraining her escape and by forcing her inside where there was less likelihood someone in the apartment complex would know she was in danger. "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (Rayford, supra, 9 Cal.4th at p. 14.)
Decreased the Likelihood of Detection. Once again, at the time Salas dragged Doe inside an apartment, she had been screaming and running down an outside stairway to the yard at the apartment complex. By moving her inside and closing the door, Salas necessarily decreased the likelihood of detection. Indeed, in his brief on appeal, Salas expressly acknowledges "that moving someone from the outside of an apartment complex into an apartment and shutting the door would decrease the likelihood of detection."
Salas then argues that, because no one came to Doe's rescue when she was screaming down the outside stairway, "the evidence showed that it made no difference in Doe's situation whether she was inside or out." We disagree. Just because no one came to her aid by the middle of the stairway outside of her second floor apartment door does not mean someone would not have responded had Salas not restrained her from heading to the common area of the large apartment complex.
Increased the Danger in Attempting to Escape. After dragging Doe into the apartment and across the living room, Salas opened a kitchen drawer and grabbed a large carving knife—with the expressed intention of scaring her. Such activity certainly increased the danger to Doe of attempting a further escape.
Increased the Attacker's Opportunity to Commit Additional Crimes. As we just discussed, the first thing Salas did after moving Doe was to open a kitchen drawer and grab a large carving knife—i.e., an opportunity to commit an additional crime. The fact that Doe knocked the knife out of Salas's hand is irrelevant, since we consider only whether the movement increased Salas's opportunity to commit, not whether he actually committed, an additional crime. (See Rayford, supra, 9 Cal.4th at p. 14 [just because danger does not materialize does not mean the risk was not increased].)
Applying the foregoing evidence to the legal standard set forth in Martinez, supra, 20 Cal.4th at p. 237, we have no difficulty concluding that, given the totality of the circumstances, the record on appeal contains substantial evidence to support the jury's implied finding that, for purposes of the asportation requirement contained in section 207, subdivision (a), the distance Salas moved Doe was sufficiently " 'substantial in character' " to support the kidnapping conviction. B. Substantial Evidence Supports the Findings That, for Purposes of Sexual Penetration by Force, Salas Committed Three Separate Violations
The jury convicted Salas of three counts of forcible acts of sexual penetration in violation of section 289, subdivision (a)(1)(A). On appeal Salas contends that "the record at trial demonstrates that, at most, two separate violations occurred"; thus, the only issue Salas raises in connection with this conviction is whether the record contains substantial evidence to support a finding of a third violation.
"Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years." (§ 289, subd. (a)(1)(A).) As used in section 289, " '[s]exual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).) A finger is a "foreign object" for purposes of section 289. (People v. Adams (1993) 19 Cal.App.4th 412, 428.)
We set forth below a portion of the recorded interview of Doe taken within a half hour of Salas's departure from Doe's apartment (italics added):
We will set forth only the English version of the interview as it was introduced into evidence and given to the jury during its deliberations. (See fns. 2 & 4, ante.) Once again, the "Interpreter" in the transcribed interview was Doe's former husband who was present at the time and assisted the deputy sheriff and Doe in their exchange.
Doe: And, um, I told [Salas], "I don't have to explain anything to you. Whether or not I left shouldn't be of interest to you anymore."
Interpreter: So she said, "Wherever I went it's none of your business I don't have to explain that to you."
Doe: And then he said, "Then if you didn't leave with another man," he said - for me - to let him touch me one last time. Said t- said to let him touch me one last time.
Interpreter: If - he - he said what?
Doe: That for one last time - that if I hadn't gone with anyone else, to . . .
Interpreter: He said, "Well then if you didn't go with another man ... "
Doe: That for - oh, to let him touch me one last time.
Interpreter: ". . . let me touch you for the last time."
Doe: And then I, mmm, so I didn't let him. I said no, told him to calm down, calm down, calm down.
Interpreter: She told him, "No, calm down."
Deputy Sheriff: So basically at that point, he's tryin', he's asking her to have sex with him?
Interpreter: Right.
Deputy Sheriff: For the last time before he leaves.
Interpreter: But at that point he said, I could touch you whatever.
Doe: And that's when he started to t - then since - since I resisted, I refused to do·it . . .
Interpreter: She resisted.
Doe: . . . then he started to - tried to force me.
Interpreter: He tried to force her. [¶] . . . [¶]
Deputy Sheriff: Okay. Um, after he tried to pull off her towel, was he trying to grab her or touch her anywhere?
Interpreter: When he took the towel off of you, did he try to touch you?
Doe: Yes, he was touching me (unintelligible) all over the body and I didn't let him.
Interpreter: Yeah, he was touching her all over.
Doe: And then, um, then so he said that he was going to try to take advantage of me and he started to touch me and I didn't let him.
Interpreter: He said, "I'm gonna try to take advantage of you." And she re - she resisted.
Doe: No - he - he never tried to take his boxers off or anything. He - w- w- was just hurting me with his fingers on my back part.
Interpreter: He didn't try to remove his boxers or anything, he just hurt her with his fingers.
Deputy Sheriff: Okay, so when she says hurt - hurt her with his fingers, how was he hurting her with his fingers?
Interpreter: When you say he hurt you with his fingers, how did he - (unintelligible) how?
Deputy Sheriff: Where was he touching, how was he grabbing her? Take your time.
Doe: He already had me lying on my back and he stuck both of his hands inside and he stuck all of his fingers inside like this from behind and pulled me. He grabbed me. He would pull me like this.
Interpreter: Did - did - did - did he push you down on the bed?
Doe: Yes, he had one hand like this and with the other hand he stuck his fingers inside of me and pulled me (unintelligible).
Interpreter: Had her, he pushed her down on the bed and with the other hand he stuck all his·fingers in her anal [sic].
Deputy Sheriff: Did he push her down with her face down in the bed, or is she lying on her back?
Interpreter: How did he push you down on the bed? (Unintelligible).
Doe: He had me like this, right here like this from this one.
Interpreter: From the throat.
Deputy Sheriff: Okay.
Doe: And - and then he - I - uh I tried to br- break loose.
Interpreter: She tried to get away.
Doe: And, um, I moved like this to the corner of the bed and he grabbed me by my feet and lifted them up.
Interpreter: He went to the edge of the bed, grabbed her legs, and lifted 'em up.
Doe: And again - again he stuck his fingers inside me again.
Interpreter: And he stuck his fingers in her anal [sic] again. [¶] . . . [¶]
Deputy Sheriff: Um, after that happened, how long does she think that took place?
Interpreter: After all of that happened - how long do you think all of that lasted?
Doe: All of that? About five minutes.
Interpreter: About five minutes.
Deputy Sheriff: About five minutes.
Doe: He'd calm down and back again.
Deputy Sheriff: And he was just grabbing her.
Doe: He'd calm down and do it again.
Interpreter: Then he would calm down and then come back and do it again.
Deputy Sheriff: So several times he stuck his fingers back there?
Interpreter: So how many times did he stick his fingers inside?
Doe: About three times.
Interpreter: Like three times.
Deputy Sheriff: Like, three different times?
Interpreter: Yeah.
Based on the foregoing exchange, the record contains substantial evidence that Salas inserted his fingers in Doe's anus on three separate instances:
1. "He already had me lying on my back and he stuck both of his hands inside and he stuck all of his fingers inside like this from behind and pulled me." (Italics added.) In this instance, Salas inserted both of his hands in Doe's anus.Following the evidence of the final penetration—including Doe's description that "He'd calm down and do it again."—in response to being asked how many timed Salas stuck his fingers insider her anus, Doe responded: "About three times." (Italics added.) In response to the deputy sheriff's question, the interpreter confirmed that these were "three different times." (Italics added.)
2. "Yes, he had one hand like this [indicating that Salas had pushed Doe down] and with the other hand he stuck his fingers inside of me and pulled me." (Italics added.) In context, the jury reasonably could have found that Salas had one hand on Doe's throat, pushing her down on the bed, and the other hand in her anus. Thus, contrary to Salas's suggestion that this instance and the prior instance were the same, the jury reasonably could have found otherwise on the basis that, in the prior instance Salas had both hands in Doe's anus, but in this instance, he had one hand around her throat and his other hand in her anus.
3. After Doe broke away from Salas and moved to the corner of the bed, he "grabbed me by my feet and lifted them up . . . [¶] . . . [¶ a]nd again - again he stuck his fingers inside me again." (Italics added.) There is no question but that this instance occurred separately from the prior instance.
Accordingly, we conclude that the record contains substantial evidence to support the convictions on each of the three counts of sexual penetration by force. C. Substantial Evidence Supports the Trial Court's Finding That, for Purposes of Sentencing, Salas Committed the Three Section 289 Offenses on Three "Separate Occasions"
While not determinative in our analysis, we note that the trial court gave a unanimity instruction. Consistent with CALCRIM No. 3502, the court instructed as to each of Counts 1, 2, and 3: "You must not find the defendant guilty of sexual penetration by force in Count [1/2/3] unless you all agree that the People have proved specifically that the defendant committed that offense on August 23, 2015. Evidence that the defendant may have committed the alleged offense on a different day or in a different manner is not sufficient for you to find him guilty of the offense charged." Based on this instruction and the substantive instruction on sexual penetration by force in violation of section 289, subdivision (a)(1)(A) (see CALCRIM No. 1045), we further note that the prosecutor expressly relied on a portion of the evidence quoted in the text, ante, and argued to the jury that it supported findings of three separate statutory violations.
Since "[w]e presume that jurors follow the instructions provided by the court in the absence of a showing to the contrary" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821)—and Salas does not argue, let alone establish, a contrary showing—we assume that the jury followed the unanimity instructions and that all 12 jurors agreed on the same three separate penetrations.
Following the convictions on the three counts of sexual penetration by force in violation of section 289, subdivision (a)(1)(A), as to each count the trial court sentenced Salas to a full-term consecutive sentence on the basis that such sentences were mandatory under section 667.6, subdivision (d). On appeal, Salas argues that the trial court erred in finding that the three offenses occurred on "separate occasions" for purposes of the section 667.6, subdivision (d) analysis. We disagree. As we explain, because the record contains substantial evidence that Salas had a reasonable opportunity to reflect between each of the three separate penetrations (see pt. III.B., ante), the court properly entered a full, separate, and consecutive term for each of the three counts.
The sentence on the first sexual penetration count (count 1) was to run consecutive to the sentence on the kidnapping count (count 4); the sentence on the second sexual penetration count (count 2) was to run consecutive to count 1; and the sentence on the third sexual penetration count (count 3) was to run consecutive to count 2.
In most situations, the trial court has discretion to sentence multiple counts concurrently or consecutively. (See, e.g., §§ 669 [concurrent and consecutive sentences], 1170.1, subd. (a) [aggregate terms, additional terms, and enhancements], 667.6, subd. (c) [consecutive sentences]; Cal. Rules of Court, rule 4.425 [factors affecting concurrent or consecutive sentences].) If the court chooses consecutive sentences, the usual application of section 1170.1, subdivision (a), limits the consecutive terms, sometimes referred to as the subordinate terms, to one-third of the middle term plus one-third of the term for any specific conduct enhancement applicable to the count. (See People v. Felix (2000) 22 Cal.4th 651, 655.)
Salas argues that he is entitled to be resentenced under section 1170.1, subdivision (a).
However, the court is required to impose a full-term consecutive sentence "for each violation of [section 289, subdivision (a)] if the crimes involve . . . the same victim on separate occasions." (§ 667.6, subd. (d); see People v. Maharaj (2012) 204 Cal.App.4th 641, 650.) At issue in this appeal is the application of the following language from the second paragraph of section 667.6, subdivision (d):
We note that even if the crimes involve multiple offenses against the same victim on the same occasion, the sentencing court has the discretion to impose full-term consecutive sentences under subdivision (c) of section 667.6. The finding of separate occasions under subdivision (d) merely makes the full-term consecutive sentences mandatory rather than permissive. (People v. Groves (2003) 107 Cal.App.4th 1227, 1231; People v. Corona (1988) 206 Cal.App.3d 13, 18 (Corona), discussed at fn. 17, post.)
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. (Italics added.)
In determining whether a defendant like Salas had a reasonable opportunity to reflect, the above-quoted language from section 667.6, subdivision (d) establishes a "broad standard," pursuant to which "the Courts of Appeal have not required a break of any specific duration or any change in physical location." (People v. Jones (2001) 25 Cal.4th 98, 104.) This statutory language establishes " 'an objective test for determining whether sex crimes against a single victim occurred on separate occasions.' " (People v. Pena (1992) 7 Cal.App.4th 1294, 1314 (Pena), quoting Stats. 1986, ch. 1431, § 2, p. 5129 [legislative intent].) "The issue of fact whether there was a reasonable opportunity for reflection depends upon all of the circumstances of the particular situation." (Corona, supra, 206 Cal.App.3d at p. 18, fn. 2.)
An appellate court may reverse trial court's finding that the defendant committed sex crimes on separate occasion for purposes of section 667.6, subdivision (d), " 'only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.' " (People v. King (2010) 183 Cal.App.4th 1281, 1325.) Thus, for purposes of determining whether the trial court here properly applied the mandate of section 667.6, subdivision (d), we review for substantial evidence the trial court's finding that Salas's three section 289, subdivision (a) offenses were committed on separate occasions. (King, at p. 1325.)
Applying this deferential standard, we conclude the trial court here could reasonably have decided that counts 1, 2, and 3 occurred on separate occasions for purposes of section 667.6, subdivision (d). As we explained in greater detail at part III.B., ante, the record contains substantial evidence of three separate instances of sexual penetration by force, each in violation of section 289, subdivision (a)(1)(A). The sequence of events and Salas's ability to calm down between events during the five minute struggle afforded Salas ample opportunity to reflect on his actions and stop his sexual assault, but he nonetheless resumed it twice.
Summarizing from part III.B., ante: Salas inserted both of his hands in Doe's anus; as they continued struggling, Salas had one hand around Doe's neck and the other hand in her anus; after Doe broke away from Salas and moved to the corner of the bed, Salas again stuck his fingers in Doe's anus; and in between attacks Salas would calm down.
The authorities on which Salas relies do not convince us otherwise.
In Pena, supra, 7 Cal.App.4th 1294, the defendant raped the victim and then "simply flipped the victim over and orally copulated her." (Id. at p. 1316.) The appellate court concluded that, because the defendant "did not have a 'reasonable opportunity to reflect' between his acts of rape and forcible oral copulation," the trial court had erred in imposing the full-term consecutive sentences for the rape and oral copulation under section 667.6, subdivision (d)'s mandatory sentencing scheme. (Pena, at p. 1316.)
In Corona, supra, 206 Cal.App.3d 13, the defendant was convicted of kidnapping the victim and sexually assaulting her in his car by putting his fingers in her vagina, then kissing her genitals, and finally by inserting his penis in her vagina. (Id. at p. 15.) The appellate court reversed the trial court's mandatory full-term consecutive sentences under section 667.6, subdivision (d), by merely accepting the Attorney General's concession that, based on the facts in that record, there was "no evidence of any interval 'between' these sex crimes affording a reasonable opportunity for reflection." (Corona, at p. 18.)
Despite reversing the "full, separate, and consecutive term" for each conviction under the mandatory language of subdivision (d) of section 667.6, the Corona court affirmed the "identical and lawful alternative sentencing" under subdivision (c) of section 667.6 (Corona, supra, 206 Cal.App.3d at p. 18), which gives the sentencing court the discretion to impose a "full, separate, and consecutive term" for each conviction.
In contrast, here, during the five minutes Salas and Doe struggled, in addition to the different positions and locations on the bed, in between attacks, "He'd calm down and do it again." This is substantial evidence that Salas—in the language of section 667.6, subdivision (d)—"had a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior." Accordingly, the trial court did not err in finding that, for purposes of sentencing under section 667.6, subdivision (d), Salas committed the three section 289 offenses on three separate occasions.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: NARES, Acting P. J. DATO, J.