Opinion
B161184.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ERICK SANCHEZ, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Erick Primitive Sanchez, appeals from his convictions for kidnapping (Pen. Code, § 207, subd. (a)), and assault with intent to commit rape. ( § 220.) Defendant argues the trial court improperly sentenced him to a consecutive sentence for the assault with intent to commit rape and failed to submit the issue of separate intent to the jury. We disagree and affirm the judgment.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Osband (1996) 13 Cal.4th 622, 690, 919 P.2d 640; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Georgina C. met defendant at a swap meet where she was employed during January 2000 or 2001. A month later, defendant introduced Georgina C. to his sister, Carla Sanchez. Georgina became friends with Ms. Sanchez, who was 19 or 20 years old. Defendant brought roses to Georgina C. where she was working. Georgina C. did not have a dating relationship with defendant nor was she romantically interested in him. Defendant was 38 years old. Georgina C. was 17 years old and had a boyfriend. On October 16, 2001, Ms. Sanchez invited Georgina C. to a concert. When Georgina C. accepted the invitation, she did not know who else was going to the concert. Later that day, defendant called Georgina C. and said he would pick her up at work to go to the concert. Prior to October 16, 2001, defendant had always treated Georgina C. well. Defendant picked Georgina C. up where she worked and drove her to his apartment. Georgina C. and Ms. Sanchez visited while defendant took a bath. Shortly thereafter, defendants friend, Kevin Mendez, arrived at the apartment. Mr. Mendez indicated he also wanted to go to the concert. Defendant and Mr. Mendez began drinking from a 12 or 24-pack of beer before leaving the apartment. Georgina C. and Ms. Sanchez did not drink any alcohol. Defendant took the beer into the car when they left for the concert. Defendant and Mr. Mendez continued to drink beer in the car.
Once inside the concert, defendant began to introduce Georgina C. to some of his friends. Defendant took Georgina C.s hand and interlocked his fingers with hers. Georgina C. pulled away and said, "What are you doing[?]" Ms. Sanchez asked defendant to buy some beer. During defendants absence, Mr. Mendez suggested that Georgina C. and Ms. Sanchez move closer to where the singer was performing. As the three moved up, defendant lost sight of them. When defendant located Georgina C., he threw a beer at her face and blouse. Georgina C. saw defendant walk toward the exit. Georgina C. and Ms. Sanchez went to defendants car in the parking lot, where they waited for him. Defendant was very mad when he got into the car. Defendant told the two women that they were leaving. Once Mr. Mendez arrived, defendant began to scream at Georgina C. Defendant drove very fast. Defendant dropped off Mr. Mendez. Defendant began screaming at Georgina C. again, calling her a "whore" and asking, "Why did [she] behave in that way with his friends[?]" Ms. Sanchez told defendant to "shut his mouth." Defendant told Ms. Sanchez, "You shut up too because you are a jerk as well." Once they arrived at defendants apartment, he told Ms. Sanchez to get out of the car. Georgina C. got out of the car and began to walk away.
Georgina C. walked to a nearby payphone. When her stepfather answered, Georgina C. identified herself. However, defendant came up behind her and hung up the phone. Defendant turned Georgina C. around. Defendant asked what she was doing. Defendant began to throw Georgina C. against some barred windows, hurting her back and her head. Georgina C. told defendant that he was hurting her. Defendant told her: "Thats what I want to do to you. I want to hurt you." Defendant twisted Georgina C.s arms backwards and steered her toward his car. Defendant threw Georgina C. against the car door, opened it, and threw her inside. As defendant went to the drivers door, Georgina C. jumped out of the car and began to run. Defendant caught Georgina C., pulled her hair, and forcefully placed her back in the car stating, "Do not try to do this again." Defendant placed the lap belt across Georgina C.
Defendant drove toward his apartment. Defendant hit Georgina C. on the face while he drove. Georgina C. was crying and asked defendant to take her home. Defendant told her to shut up. Defendant opened the security gate to the parking garage with a remote control. Defendant said, "Where do you want it to be, here or at the beach?" Defendant parked the car. Defendant turned Georgina C.s face around so that she was looking directly at him. Defendant told Georgina C.: "[She] was an idiot if [she] had never noticed that he was in love with [her]. That [she] always ignored him and that if [she] hadnt noticed that he was alone." Georgina C. told defendant: "Look at yourself. You are an old man. What am I going to do with you[?]" Defendant hit Georgina C. in the face. Defendant told Georgina C.: "What do you think happened to Cindy. . . . What do you think I did to her when she was very drunk one night." Defendant told her the same thing would happen to her: "He was going to do something that [she] was not going to forget for the rest of her life. That he was going to hurt [her]." Defendant told Georgina C., "You know that now you are in my hands and if I want to I can rape you and kill you."
Defendant put his hand on her leg under her skirt and moved it up to her vaginal area. Georgina C. pushed defendants hand away. Defendant also told Georgina C., "If he couldnt do it the good way he was going to do it the bad way." Defendant grabbed her face again and turned her toward him. Defendant tried to kiss Georgina C. by holding her neck toward him. Defendant tried to put his hand inside her blouse. Georgina C. moved defendants hand. Defendant hit her on the face. Defendant told Georgina C. again that he was alone and that she should have noticed that he loved her. She put her purse on her lap to prevent defendant from touching her.
Georgina C. slipped off her shoes. As defendant put pressure on her neck, she pretended to throw up. As she did so, Georgina C. also unlocked the seat belt. As she leaned toward the door, defendant released one of her hands. Georgina C. opened the car door and ran toward the apartments. Defendant ran after Georgina C. Defendant slipped, allowing her time to open the doors to the steps of the apartment. Defendant caught up with Georgina C., grabbed her skirt, threw her against the wall, and began hitting her. She began screaming for help in both English and Spanish. Defendant scratched the upper part of her mouth to prevent her from screaming. Defendant also hit Georgina C. in the stomach.
A resident of the apartments, Rafid Khamis, responded to Georgina C.s cries for help. Mr. Khamis threw defendant aside. Mr. Khamis covered Georgina C. with his body. The apartment manager, Rosa Flores, also came to the scene. Mr. Khamis went with Georgina C. to defendants car to recover her shoes and her purse. Defendant threw the shoes out but refused to give her the purse stating: "I am not going to give you anything. You are nothing else but a whore." Ms. Flores attempted to prevent defendant from driving away by standing in front of his car and telling him not to leave. Defendant told Ms. Flores to get out of his way. Defendant drove out of the parking area. The police arrived shortly thereafter. Initially, Georgina C. did not want to identify defendant because she feared he would hurt her later. However, the manager indicated that defendant lived in the building. Thereupon, Georgina C. acknowledged that she knew defendant.
A few days after the incident, defendant called Georgina C. Defendant said: "I dont remember what happened. I dont remember anything, but if I hurt you, I want to apologize to you." Within a week after the incident, Ms. Sanchez, defendants sister, telephoned Georgina C. and said: "They arrested my brother. That was the managers fault. . . . [Defendant] says for you to help him if you can say something in his favor." Georgina C. hung up the phone. Ms. Sanchez called later the same day stating: "If anything happens to my brother it is going to be your fault. I swear to you that I am going to find you wherever you are and I am going to kill you." Defendant called Ms. Flores after the incident. Defendant told Ms. Flores that it was her fault that he was in jail and that she "would pay for making him go to jail." Ms. Flores made a report to the police that defendant had threatened her.
First, defendant argues that the trial court improperly imposed a consecutive term for the assault with intent to commit rape conviction. He further argues the sentence constitutes double punishment as prohibited by section 654, subdivision (a) because his actions constituted one indivisible course of conduct with a single purpose. Section 654, subdivision (a) provides in relevant part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." The Supreme Court has held, "Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal. Rptr. 40, 591 P.2d 63; Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal. Rptr. 607, 357 P.2d 839.)
We review the trial courts order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294-295; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) In conducting the substantial evidence analysis we view the facts in the following fashion: "We must view the evidence in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Holly (1976) 62 Cal. App. 3d 797, 803, 133 Cal. Rptr. 331 [].)" (People v. McGuire (1993) 14 Cal.App.4th 687, 698; see also People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
At the time of sentencing, the trial court noted: "That leaves count 3 and whether or not there were multiple objectives. Clearly the court can find a basis for the jury verdict convicting the defendant of the lesser rather than the greater [kidnapping rather than kidnapping with the intent to commit rape]. Since he would have appeared to harbor multiple objectives, not only the sexual motivation but also it was clear that he was not going to let this victim out of his control. At some point in time he obviously decided he was going to act out his sexual fantasies. [P] There is sufficient evidence in the record, I believe, to support the theory of multiple objectives, and, therefore, as to count 3 the court finds that the defendants conduct demonstrates he poses a serious danger to society and [I am] going to sentence consecutively to one-third the mid-term."
Substantial evidence supports the trial courts finding of a divisible course of conduct with respect to the kidnapping and the assault with intent to rape. In People v. Trotter (1992) 7 Cal.App.4th 363, 366-368, our colleagues in the Court of Appeal for the Fourth Appellate District found evidence sufficient to establish that a defendant who fired three separate shots from a commandeered taxi at a pursuing officer had separate intents for each shot fired. The Trotter court held: "Each shot posed a separate and distinct risk to [the officer] and nearby freeway drivers. To find section 654 applicable to these facts would violate the very purpose for the statutes existence." (Id. at p. 368.) The Trotter court found, "Here, there were three separate acts, not one, made punishable in different ways by different provisions of [the Penal Code] . . . ." (People v. Trotter, supra, 7 Cal.App.4th at p. 368, citing § 654; see also People v. Harrison (1989) 48 Cal.3d 321, 337-338, 256 Cal. Rptr. 401, 768 P.2d 1078 [separate and consecutive punishment proper where the defendant harbored separate intents to obtain gratification with each sexual penetration against the same victim].)
Likewise in this case, defendant cursed and yelled at Georgina C. on the drive home from the concert, accusing him of embarrassing him in front of his friends. When defendant abducted her from the phone booth and beat her against the barred windows of a nearby building, he stated: "Thats what I want to do to you. I want to hurt you." Defendant then forced Georgina C. into his car. Although she was able to jump from the car, defendant quickly apprehended her, forced her into the automobile, and proceeded to hit her face as he drove. Defendant did not say anything of a "sexual nature" to Georgina C. until he drove into the gated parking lot of his apartment. Defendant then through innuendo told Georgina C. he was going to do what he had previously done to Cindy. Defendant threatened to do something she would not forget for the rest of her life. After defendant began groping Georgina C.s vaginal area and blouse, he told her, "What do you think, that I am not going to take something that your boyfriend has." Defendant also told her, "You know that now you are in my hand and if I want to I can rape you and kill you."
Moreover, as the trial court noted, the jury convicted defendant of simple kidnapping rather than kidnapping with the intent to rape as charged in the information. The verdict followed their request that the trial court clarify, "Specific intent to commit rape must be present when the kidnapping commences. Please clarify commences. Starts - the initial 10 seconds? What?" The trial court responded, "The question cannot be answered in terms of seconds; commences means begins." The jury apparently concluded there was a reasonable doubt as to whether that defendant possessed the intent to commit rape when the kidnapping "began." Substantial evidence supports the trial courts decision to impose a consecutive sentence for the assault with intent to commit rape.
Second, defendant argues the trial courts failure to submit the question of whether he had multiple objectives for each offense to the jury deprived him of his Sixth Amendment jury trial right and his Fifth Amendment due process right that the prosecution prove guilt "beyond a reasonable doubt." Putting aside the fact this entire issue was been waived (People v. Marchand (2002) 98 Cal.App.4th 1056, 1058; see People v. Scott (1994) 9 Cal.4th 331, 351, 885 P.2d 1040), we disagree with defendant. Citing to Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348, defendant argues that the jury rather than the trial court should have determined whether he committed the offenses with multiple intents or objectives. In Apprendi, the United States Supreme Court found unconstitutional a statute which allowed a trial judge to increase the sentence for specific offenses if the crime was motivated by racial animus. The Apprendi court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum [for the particular crime] must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) Our peers in Divisions Seven and Four of this appellate district recently addressed this issue and concluded that section 654, subdivision (a), is not a sentencing enhancement subject to a jurys determination. In People v. Cleveland (2001) 87 Cal.App.4th 263, 270, Associate Justice Fred Woods wrote: "Unlike in the hate crime provision in Apprendi, section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute. Section 654 is not a mandate of constitutional law. Instead, it is a discretionary benefit provided by the Legislature to apply in those limited situations where ones culpability is less than the statutory penalty for ones crimes. Thus, when section 654 is found to apply, it effectively reduces the total sentence otherwise authorized by the jurys verdict. The rule of Apprendi, however, only applies where the nonjury factual determination increases the maximum penalty beyond the statutory range authorized by the jurys verdict. In Apprendi, the factual determination (i.e., the element of intent for the hate crime) which increased his sentence was not determined by the trier of fact under the reasonable doubt standard. Here, however, every factual element of the attempted murder and robbery was submitted to the jury, and the jury found Cleveland guilty beyond a reasonable doubt of both crimes. Thus, the jurys verdict authorized the sentences Cleveland received for each crime. Indeed, in finding section 654 did not apply, Cleveland received the same sentence as he was exposed to by the jurys verdict. Where, as here, the nonjury factual determination allows for a sentence within the range already authorized by the verdict, Apprendi has no effect." Likewise, in People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022, Presiding Justice Charles Vogel of Division Four of this appellate district, adhered to the Cleveland analysis. We do likewise.
As noted previously, the jurors refused to find that defendant kidnapped Georgina C. for purposes of rape, as demonstrated by their question to the trial court regarding the term "commences" in the jury instruction for that offense and their ultimate verdict on the aggravated kidnapping charge. Rather they found defendant guilty of simple kidnapping and they convicted him of assault with intent to commit rape. Defendant was subject to a sentence for each of those offenses. Therefore, his sentence was not increased by the trial courts determination that his acts constituted a divisible course of conduct not subject to the limitations of section 654, subdivision (a). Accordingly, we conclude that the trial court did not err in making the factual findings regarding the applicability of section 654, subdivision (a).
The judgment is affirmed.
I concur: GRIGNON, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.
MOSK, J., Concurring
I concur.
Justice Johnson in his dissent in People v. Cleveland (2001) 87 Cal.App.4th 263, 277 said, "it would be anomalous to hold that where a statute mandates the enhancement of an individual sentence the enhancement factors must [under Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348] be tried by the jury while a statute requiring an extended period of service by requiring consecutive sentences (Pen. Code, § 654) would remain outside the purview of the Apprendi rationale." Three justices of the California Supreme Court voted to grant a petition for review.
Although I consider Justice Johnsons argument persuasive, it has not received support. (See, e.g., People v. Solis (2001) 90 Cal.App.4th 1002.) Indeed, a case relied upon by Justice Johnson, People v. Clifton (Ill.App. 2001) 321 Ill. App. 3d 707, 750 N.E.2d 686, 255 Ill. Dec. 769, was later overruled by the Illinois Supreme Court. (People v. Wagener (Ill. 2001) 196 Ill. 2d 269, 752 N.E.2d 430, 256 Ill. Dec. 550; People v. Carney (Ill. 2001) 196 Ill. 2d 518, 752 N.E.2d 1137, 256 Ill. Dec. 895; see also Wright v. State of Alaska (Ala.App. 2002) 46 P.3d 395 [holding that Apprendi does not govern decision to impose consecutive sentences].)
Thus, following the authorities, I concur.
MOSK, J.