Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara No. 1152123, James E. Herman, Judge
Raymond L. Girard, 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, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Richard S. Moskowitz, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ernie Joe Librado Santos appeals a judgment after his conviction of kidnapping for the purpose of forcible rape, forcible oral copulation or penetration with foreign object (Pen. Code, § 209, subd. (b)) (count 1); forcible rape (§ 261, subd. (a)(2)) (count 2); assault with intent to commit rape (§ 220) (count 3); forcible oral copulation (§ 288a, subd. (c)(2)) (count 4); genital penetration by a foreign object (§ 289, subd (a)(1)) (count 5); dissuading a witness (§ 136.1, subd. (c)(1)) (count 6); criminal threats (§ 422) (count 7); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 8). The court sentenced Santos to an aggregate term of 333 years to life.
All statutory references are to the Penal Code unless otherwise stated.
We conclude that: 1) the evidence was sufficient to support the conviction for forcible rape; 2) Santos possessed a useable quantity of methamphetamine; 3) admission of evidence about Santos' prior uncharged sex offenses was permissible; 4) the court properly instructed the jury with CALCRIM No. 1191; 5) it committed harmless error by instructing jurors that simple kidnapping was a sexual offense under Evidence Code section 1108; 6) its CALCRIM No. 226 credibility instruction was proper; 7) Santos received effective assistance of counsel; but 8) the court erred by imposing a consecutive sentence for kidnapping for rape (count 1); and 9) it erred by imposing consecutive sentences on counts 2, 4 and 5 under section 667.6 without a statement of reasons. We vacate the sentence, but in all other respects we affirm.
FACTS
Victoria W. was a drug and alcohol counselor. She wrote letters to Santos, visited him in prison and became romantically involved with him. Several years later, after Santos was released from prison, he contacted Victoria. They went out on a date. He drove her near the ocean and tried to kiss her. Victoria rejected his advances and said, "You don't know me any more. That was five years ago." Santos said, "Shut the fuck up." Victoria became frightened because he was angry.
Santos told her that he wanted her to see his apartment. She went with him after he said, "Shhh, don't make me hurt you." After they went into his apartment, he said, "I want you to lay your chest on my head . . . ." She said, "No." She had pepper spray in her purse, but did not use it because she was afraid "it would make him madder."
Santos pulled off her pants and underwear. Victoria said, "Why are you doing this? Don't do this." He pushed her down with his hand, put his mouth on her vagina and began sucking, licking and biting it. He moved her legs up and said, "I want you to 69 me." She said, "No, please no." He put a cold, hard object on her vagina. He was unable to obtain an erection. He placed his penis inside her vagina using his hand. She told him "No." He did not stop.
Santos got up from the bed, said he "wasn't done yet," and went to the bathroom. Before Victoria could look for her clothes, Santos emerged with a gun hidden in a sock. He put the gun in her mouth and said, "Stop crying. I have nothing to lose. I'll kill you." He tied her hands with a shoelace and put a sock in her mouth.
Santos later cut the shoelace, put her clothes in a bag, gave her a sweatshirt to wear and drove her back to her car. She did not try to run away because she was afraid he would shoot her. He took out a syringe, a vial and a plastic bag. He injected himself with a drug. He told her he would kill her if she contacted the police. She promised not to call the police.
Yvonne Cortez, a friend of Victoria's, testified that Victoria called her and "was crying very hysterically." Cortez knew something was "terribly wrong." She "couldn't make out what [Victoria] was trying to tell" her. Later Victoria told her that a man "hurt me." On cross-examination, she testified that Victoria had twice told her that she had not been raped.
Police Detective Chuck Rylant testified that when he interviewed Victoria she was upset and crying. During interviews, she stuttered and had difficulty completing sentences.
Judy Malmgren, a sexual assault nurse examiner, testified that she obtained a history about the attack from Victoria and made a physical examination. Victoria's injuries were consistent with the history she provided.
Santos testified on his own behalf. He said that he never forced Victoria to engage in any sexual act, and all sexual acts were consensual. He did not threaten Victoria or force her to go anywhere that she did not want to go. He said he wanted his date with Victoria "to end so that [he] could go see [his] girlfriend." When Victoria went into his bedroom, they "started making out," and Victoria "started grabbing." Santos said that he "followed her lead." He "asked her to go 69 with [him]." But she said no, and he "let it go at that." He "orally copulated her." She got on top of him, straddled him, grabbed his penis, but he did not engage in intercourse because he could not obtain an erection. On his date with Victoria, he did not use methamphetamine, but he had used it the day before.
Evidence of Santos' Prior Sexual Offenses
Leslie D. testified that in 1982 Santos gave her a ride in his car after her car broke down. When she asked him to let her out, he grabbed her neck. She grabbed the steering wheel and the car crashed near a service station. Santos hit her, he grabbed her breasts and "ripped off" her bra. When she freed herself and got out of the car, Santos told her, "You better run, bitch, or you're dead."
Patricia E. testified that in 1983 Santos hit her, grabbed her and put her in his car. He tied her hands with shoelaces, gagged her mouth with socks, drove her to a motel and raped her. He took her back to his car and told her he wanted her to "orally copulate him." He said, "If you bite me, I'll kill you." He made her orally copulate him. She was naked. Santos gave her a shirt to wear and drove her back to an alley. Before he let her go, he said there were police in the area. She said, "I won't tell."
DISCUSSION
I. Sufficiency of the Evidence for Forcible Rape
Santos contends that the evidence is insufficient to support his conviction for forcible rape. We disagree.
In reviewing the sufficiency of the evidence we draw all reasonable inferences in support of the judgment. We do not weigh the evidence or decide the credibility of witnesses. (People v. Rodriguez (1999) 20 Cal.4th 1, 10-12.) Forcible rape "is an act of sexual intercourse" that "is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person . . . . " (§ 261, subd. (a)(2).)
Santos contends there is no substantial evidence that Victoria was subject to force or fear or that she engaged in sexual activity without her consent. We disagree. For consent, the victim must act "freely and voluntarily." (§ 261.6; People v. Williams (1992) 4 Cal.4th 354, 361, fn. 6.) Victoria testified that she did not want to go with Santos, but he told her, "Don't make me hurt you." She did what he said because she was afraid Santos would hurt her or her family if she disobeyed. She had pepper spray in her purse. But she did not use it because she believed that "would make [Santos] madder." When Santos pulled off her underpants, she said, "Why are you doing this? Don't do this." After he said, "I want you to 69 me," Victoria responded, "No, please no." When he inserted his penis in her vagina, she said no, but Santos did not stop. Later he gagged her, tied her hands and stuck a gun in her mouth.
Santos claims that there was insufficient evidence to support a finding of sexual penetration. We disagree. "Any sexual penetration, however slight, is sufficient to complete the crime." (§ 263.) Proof of "prolonged or deep insertion, or emission or orgasm, is unnecessary." (People v. Harrison (1989) 48 Cal.3d 321, 329.) "'[P]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.'"" (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366.) The "'penetration which is required is sexual penetration and not vaginal penetration.'" (Ibid.) Victoria testified that Santos was unable to achieve an erection. The prosecutor asked, "Did he put the tip of his penis inside your vagina?" She said, "With his hand, yes." The prosecutor asked, "But he did put the tip inside?" Victoria responded, "Yes." In addition, Malmgren testified there was "an aberrated area" inside "the wall of the vagina." The evidence was sufficient.
II. Possession of Methamphetamine
Santos claims that the evidence was insufficient to support his conviction for possession of methamphetamine. He contends that there is no evidence that he possessed a useable amount of the drug. We disagree.
Under the useable quantity rule, a defendant may not be convicted for possession of a controlled substance "when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace." (People v. Rubacalba (1993) 6 Cal.4th 62, 66.) But this rule "does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used." (Ibid.) "The chemical analysis of the material possessed need only establish the existence of a controlled substance." (Id. at p. 65.) "A quantitative analysis establishing the purity of the controlled substance is not required." (Ibid.) "There is no requirement that any particular purity or potential narcotic effect be proven." (Ibid.)
Victoria testified that Santos took a "clear bag" from his pocket, placed a substance from the bag into a vial, and injected himself with a syringe. She said the substance made him "calm." After Santos was arrested, the police searched him and found a "plastic baggy" containing a "white powdery substance." Susan Silvia, a criminalist with the California Department of Justice (DOJ), testified that the "substance contains methamphetamine" and weighed 0.98 grams.
Police Officer Daniel Olivares testified that 0.01 or "one one-hundredth of a gram would be enough to place somebody under the influence of methamphetamine." Ronald Kitagawa, a DOJ forensic toxicologist, testified that a sample of blood taken from Santos tested positive for methamphetamine and "opiate-type" drugs. The concentration of methamphetamine in his blood was 287 nanograms per milliliter which is "a high level." One hundred nanograms per milliliter would be a "toxic level" where people would experience "adverse effects" such as the sensation of feeling that the heart is "speeding." The evidence was sufficient.
III. Admitting Evidence About Santos' Prior Sex Offenses
Santos contends the court erred by admitting the testimony about his prior sexual offenses. He claims the evidence was prejudicial and contravened his constitutional right to a fair trial. We disagree.
Evidence that a defendant "committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these" types of crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 915, italics omitted.) Evidence Code section 1108, which authorizes the admission of this evidence, provides adequate protections to ensure a defendant's right to a fair trial. (Id. at p. 916.) It requires exclusion of other sex crime evidence where its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (Ibid.; Evid. Code, § 352.)
Santos claims that the offenses involving Leslie D. and Patricia E. did not involve the same modus operandi and "lacked sufficient similarity with the charged offenses to justify admission" under Evidence Code section 1101. But "[i]n enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101." (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.)
But, even so, the evidence the trial court admitted showed a highly probative pattern of conduct that Santos used to sexually assault women. (Evid. Code, § 1101.) In each case he used an automobile to move the victim to a different place. His planning involved the same goal, to find a better location to commit a sexual assault. He used violence or the threat of force to control his victims. He used the same method to physically restrain them. He tied the hands of Victoria and Patricia E. with shoelaces. As to both victims, he committed forcible rape and forcible oral copulation. He drove Victoria to his apartment. He drove Patricia E. to a motel. He gagged Victoria and Patricia E. using socks. After completing the sexual assaults, he used the same procedure. He put a sweatshirt on Victoria and a shirt on Patricia E. to cover their naked bodies. Then he drove them back to the location they selected. He let Victoria and Patricia E. go, after they promised not to call police. The similarities are substantial. Santos has not shown an abuse of discretion.
IV. CALCRIM No. 1191
Santos claims the court erred by instructing the jury with CALCRIM No. 1191 on how to evaluate the uncharged sex offense evidence introduced by the prosecution. We disagree.
The CALCRIM No. 1191 instruction which the court gave provided, in relevant part:
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit Kidnapping with Intent to Commit Rape, Forcible Oral Copulation or Forcible Penetration, Forcible Rape, Assault with Intent to Commit Rape, Forcible Oral Copulation, and Forcible Penetration, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of [the charged offenses]. The People must still prove each element of every charge beyond a reasonable doubt.
"Do not consider this evidence for any other purpose except for the limited purpose of determining the complaining witnesses' credibility, determining the defendant's credibility."
Santos claims this instruction is defective because it authorizes "the jury to convict solely on proof of uncharged conduct." But that is not the case. The instruction advises jurors that this evidence "is not sufficient by itself to prove that the defendant is guilty" of the charged offenses. A reasonable juror would not interpret these instructions "to authorize a guilty verdict based solely on proof of uncharged conduct." (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
Santos argues that the instruction is invalid because it states jurors "may, but are not required to, conclude from the evidence that [Santos] was disposed or inclined to commit sexual offenses . . . ." But our Supreme Court, in ruling on almost identical language in the former CALJIC No. 2.50.01 instruction, held that this was appropriate. (People v. Reliford, supra, 29 Cal.4th at p. 1013.) It said this gives jurors proper guidance to decide whether to draw "a legitimate inference" about a defendant's propensity to commit sex offenses. (Ibid.)
Santos claims the instruction "undermines the Fifth Amendment due process requirement that proof of guilt of a charge be made beyond a reasonable doubt." But the instruction states, "The People must still prove each element of every charge beyond a reasonable doubt." "[T]he instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses." (People v. Reliford, supra, 29 Cal.4th at p. 1013.) "We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof." (Id. at p. 1016.)
V. Kidnapping as an Evidence Code section 1108 Sexual Offense
Santos claims the court erred by listing kidnapping as an uncharged sexual offense that jurors could consider as propensity evidence under CALCRIM No. 1191. (Evid. Code, § 1108.) The Attorney General agrees, in part.
The court stated in the first sentence of its CALCRIM No. 1191 instruction, "The People presented evidence that the defendant committed the crime of Forcible Rape, Kidnapping, Assault with Intent to Commit Rape and Forcible Oral Copulation that was not charged in this case." (Italics added.) It also instructed the jury, "If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses . . . ."
Evidence Code section 1108, which authorizes the admission of the propensity evidence in CALCRIM No. 1191,"'is limited to the defendant's sex offenses, and it applies only when he is charged with committing another sex offense.'" (People v. Walker (2006) 139 Cal.App.4th 782, 801, italics omitted.) The Attorney General notes that in People v. Pierce (2002) 104 Cal.App.4th 893, we held that assault with intent to commit rape was not expressly listed as a sexual offense in the prior version of Evidence Code section 1108, but the crime was nevertheless a sexual offense within the meaning and purpose of that statute. He persuasively argues that if assault with intent to commit rape falls within the statute, then kidnapping for the purpose of committing rape, oral copulation and sexual penetration should likewise be included. But he agrees with Santos that simple kidnapping falls outside of section 1108 and consequently the court erred by mentioning it in the instruction. He is correct. There are no elements in the offense of simple kidnapping that require sexual conduct. (§ 207.)
The Attorney General contends, however, that the error was harmless. He argues that the crimes Santos committed against Leslie D. and Patricia E. were sexual offenses. He claims no reasonable juror would conclude that Santos committed only kidnapping and had not committed the sexual offenses against them. We agree.
The evidence that these were sexual offenses is overwhelming. Patricia E.'s testimony shows that Santos abducted her to take her to a motel where he committed sexual offenses. Santos testified that in addition to kidnapping he was convicted of committing three sexual offenses against her: forcible rape, forcible oral copulation and forcible sodomy. Leslie D. testified that Santos grabbed her breasts and ripped off her bra. Moreover, as discussed in section IV, Leslie D.'s and Patricia E.'s testimony showed a pattern of conduct that was independently admissible under Evidence Code section 1101. (People v. Walker, supra, 139 Cal.App.4th at p. 803.)
VI. CALCRIM No. 226
Santos claims the credibility instruction which the trial court gave (CALCRIM No. 226) is deficient. He notes it omitted the phrase contained in former CALJIC No. 2.20 which stated jurors may consider "the existence or nonexistence of a bias, interest, or other motive." He claims the court committed reversible error by not sua sponte adding these quoted words from the former CALJIC instruction to the CALCRIM No. 226 instruction. We disagree.
The CALCRIM No. 226 instruction which the court gave states, in relevant part: "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness's behavior while testifying? Did the witness understand the questions and answer them directly? [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?" (Italics added.)
Santos contends this instruction did not assist jurors in evaluating his claim that Victoria had a motive to lie because she was a drug counselor who was embarrassed by her prior personal relationship with Santos, a parolee. But the sentence, which is quoted in italics above, regarding "a personal relationship with someone involved in the case" and "a personal interest," is precisely suited to cover his defense. In fact, it provides greater guidance to jurors than simply using the general phrase from the CALJIC No. 2.20 instruction which Santos claims the court erroneously omitted. There was no error and he has not shown any prejudice.
VII. Ineffective Assistance of Counsel
Santos claims that his trial counsel was ineffective by not introducing additional evidence to attack Victoria's credibility. But he has failed to meet his burden. To demonstrate ineffective assistance, Santos must show that his trial counsel's performance was both deficient and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) But judicial scrutiny of counsel's performance is highly deferential. The trial lawyer has wide latitude in making strategy decisions. We do not judge counsel's performance using a 20-20 hindsight standard. (Id. at pp. 689-690.)
Santos contends the trial court erred by denying his motion for a new trial based on ineffective assistance. But the trial court found that he was "well and ably represented" at trial.
Santos claims his counsel "failed to develop" evidence on his defense of consent and did not show that Victoria made prior inconsistent statements. But his lawyer extensively cross-examined Victoria and he highlighted the facts that: 1) she had a prior personal relationship with Santos, 2) they discussed marriage, 3) she agreed to meet him after he was released from prison, 4) she gave him her cell phone number, and 5) they talked frequently. He questioned her to show that she deliberately withheld information from the police about telephone conversations she had with Santos. Victoria testified that she did not remember telling Cortez that she had not been raped. But in cross-examining Cortez, Santos' counsel elicited testimony that Victoria had twice told Cortez that she had not been raped.
At trial Victoria testified that when Santos went to the bathroom she did not tell him that she was leaving. Santos claims his counsel should have tried to impeach that testimony. He notes that Detective Rylant testified at the preliminary hearing that Victoria told him that when Santos was in the bathroom she told Santos that she was leaving. Santos claims that Victoria made some inconsistent statements about the location of her cell phone. But Santos has not shown from this record whether these alleged omissions were the result of a considered decision or counsel's inadvertence. This matter is therefore better raised on a habeas petition with a more complete record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
But, even so, Santos' counsel may have felt that he had proved that Victoria made prior inconsistent statements about whether she had been raped, and that was the major impeachment issue. He could have concluded that the details which Santos is now raising were relatively insignificant by comparison. (People v. Hayes (1990) 52 Cal.3d 577, 621.) Ineffective assistance is not shown simply because a lawyer decides not to raise every conceivable inconsistency. (Ibid.) Or, he could have concluded that raising small details about the cell phone location would be counterproductive. It could invite the prosecution to emphasize that Victoria would not use the cell phone regardless of its location because Santos threatened her.
Santos claims his counsel should have highlighted the inconsistent remark by Victoria to Detective Rylant during a police interview about whether she told Santos she was leaving. But that might encourage the prosecutor to explain the inaccuracy by introducing more evidence about her emotional condition at that time. During the police interviews, Victoria was crying, her speech became "blurred" and she started "stuttering." Re-emphasizing her emotional state would assist the prosecution by showing that she had the type of trauma experienced by rape victims.
Santos notes that his counsel did not use Detective Rylant's preliminary hearing testimony where he said, "Yvonne Cortez told me that [Victoria] said that there were no problems until Santos went to the bathroom and returned with a gun." He argues that was an implicit admission that she was not raped. But his counsel produced better impeachment evidence, Cortez's testimony that Victoria expressly told her that she was not raped. Moreover, Cortez's testimony explained why Victoria's remarks could have been misinterpreted. She said, "I couldn't make out what [Victoria] was trying to tell me." Victoria was incoherent after the attack.
VIII. The Consecutive Sentence for Kidnapping for Rape (Count 1)
Santos contends that in light of People v. Jackson (1995) 32 Cal.App.4th 411, and People v. Latimer (1993) 5 Cal.4th 1203, the trial court erred by imposing a 45-year-to-life consecutive sentence for kidnapping for rape (count 1). We agree.
In People v. Jackson, the defendant was charged with kidnapping for the purpose of committing sexual offenses and the jury found the kidnapping was for that purpose. The Court of Appeal held that because the defendant was sentenced on the sexual offenses, "punishment on the kidnapping conviction must be stayed pursuant to section 654." (People v. Jackson, supra, 32 Cal.App.4th at p. 417.)
In People v. Latimer, the Supreme Court held that even if the kidnapping and the rapes "were separate acts," where the kidnapping is for the goal of committing the sexual offenses, section 654 applies to bar additional consecutive sentencing for kidnapping. (People v. Latimer, supra, 5 Cal.4th at p. 1216.) The court said, "'Since the kidnapping was for the purpose of committing the sexual offenses and [defendant] has been punished for each of the sexual offenses,' section 654 bars execution of sentence on the kidnapping count." (Ibid.)
This case falls squarely within the Jackson-Latimer rule. Santos was charged with kidnapping for the purpose of committing sexual offenses. The jury found him guilty "of the crime of KIDNAPPING FOR THE PURPOSE OF FORCIBLE RAPE, FORCIBLE ORAL COPULATION OR PENETRATION WITH FOREIGN OBJECT . . . ." Santos was sentenced on each of the sexual offenses. The court imposed a term of 95 years to life on count 2 (forcible rape) and consecutive 48-year-to-life terms for forcible oral copulation (count 4) and genital penetration by a foreign object (count 5). The court erred by imposing a consecutive 45-year-to-life sentence on count 1, kidnapping. (People v. Latimer, supra, 5 Cal.4th at p. 1216.)
IX. Findings on Consecutive Sentences for Counts 2, 4 and 5
Santos claims the court erred by imposing consecutive sentences on the forcible rape, forcible oral copulation and foreign object genital penetration counts (counts 2, 4 and 5), without making any findings on the statutory elements for imposing those terms. He contends that the court made only a conclusory comment about mandatory consecutive sentencing which was incorrect as a matter of law. We agree.
Section 667.6, subdivision (d) states, in relevant part, "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] 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." (Italics added.) "In exercising its sentencing discretion, the court should make an individual determination as to each sex offense." (People v. Belmontes (1983) 34 Cal.3d 335, 346.) The record should reflect the court's statement of reasons for its decision. (Id. at pp. 347-348.)
Here the trial court simply stated, "under Penal Code 667.6 [(d)] the Penal Code mandates that counts 1 through 5 be ordered consecutive . . . ." But this was not "an individual determination as to each sex offense," and it was not a statement of reasons for its decision. "'Reasons for imposing consecutive terms . . . must be expressly stated.'" (People v. Enright (1982) 132 Cal.App.3d 631, 636.) Simply citing a statute and stating that the defendant's offenses fall within it is insufficient. (Ibid.) When sentencing a defendant under section 667.6 subdivision (d), the court "must give a factual explanation supporting its finding of 'separate occasions' for each count sentenced under that subdivision. An overall statement of the court's general impression of the evidence is insufficient." (People v. Irvin (1996) 43 Cal.App.4th 1063, 1072.)
The trial court's sentencing statement was also incorrect as a matter of law. The court believed that count 1 was an enumerated sex offense under section 667.6. But count 1 was for kidnapping and, as discussed earlier, consecutive sentencing for that offense was improper (People v. Latimer, supra, 5 Cal.4th at p. 1216), and kidnapping is not one of the sexual offenses listed in section 667.6. "[I]f defendant was sentenced inappropriately under even one count pursuant to subdivision (d), the case must be remanded for sentencing . . . ." (People v. Irvin, supra, 43 Cal.App.4th at p. 1067.)
Santos correctly notes that the court's statement appears to indicate that it felt that it had no discretion. But consecutive sentencing for the sex crimes which fall within section 676.6, subdivision (d) (counts 2, 4 and 5) is not automatic. (People v. Irvin, supra, 43 Cal.App.4th at p. 1067.) It requires an exercise of the court's discretion to determine whether each sex offense occurred on a separate occasion and whether there was a reasonable opportunity to reflect between the offenses. The trial court made no findings on these issues. But the court must identify the criteria it uses so that a reviewing court will know that it knew what discretion it had and that it exercised that discretion. (People v. Belmontes, supra, 34 Cal.3d at p. 348.) "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court." (Id. at p. 348, fn. 8.) "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (Ibid.)
Citing People v. Pena (1992) 7 Cal.App.4th 1294, the Attorney General argues that we should defer to the trial court's fact findings. But Pena is distinguishable. There the trial court found that the defendant had a reasonable opportunity to reflect. The court said, "once the trial judge resolves the issue of 'separate occasions,' an appellate court is 'not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection.'" (Italics added.) (Id. at p. 1314.) But here there were no findings. Given this record and the number of sexual acts, this error is not harmless. (People v. Irvin, supra, 43 Cal.App.4th at p. at p. 1067; People v. Hernandez (1988) 204 Cal.App.3d 639, 655 [remand for resentencing because of trial court's failure to state reasons for imposing consecutive sentences]; People v. Enright, supra, 132 Cal.App.3d at p. 637.)
The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., PERREN, J.