Opinion
B158350.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. RODGER LEE SMITH, Defendant and Appellant.
C. Delaine Renard, 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, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.
Rodger Lee Smith, also known as Rodger Jones and Tony Wallace, appeals from the judgment entered upon his conviction by jury of two counts of forcible penetration with a foreign object (Pen. Code, § 289, subd. (a)(1), counts 1 & 4), three counts of forcible lewd acts upon a child (§ 288, subd. (b)(1), counts 2, 3 & 8) and one count of forcible penetration with a foreign object of a child under the age of 14 by a person more than 10 years older (aggravated sexual assault) (§ 269, subd. (a)(5), count 5). The jury also found to be true the allegations that appellant inflicted great bodily injury within the meaning of section 12022.8 in connection with count 5 and within the meaning of section 667.61, subdivision (b) in connection with counts 4 and 8. The trial court sentenced appellant to the aggregate term of 20 years to life plus 16 years. Appellant contends that (1) he could not properly be convicted of both forcible penetration in count 4 and aggravated sexual assault in count 5, the former being a lesser included offense of the latter, (2) the trial court was not authorized to add the five-year enhancement provided for in section 12022.8 to his conviction of aggravated sexual assault in count 5, and (3) the trial court erroneously imposed, pursuant to section 667.6, subdivisions (c) and (d), fully consecutive upper term sentences on his convictions of forcible penetration in count 1 and of forcible lewd acts in count 2.
All further statutory references are to the Penal Code unless otherwise indicated.
We modify the judgment to replace the five-year great bodily injury enhancement, within the meaning of section 12022.8, in connection with count 5, with the three-year great bodily injury enhancement within the meaning of section 12022.7 and reverse the conviction of forcible penetration in count 4. The judgment is affirmed in all other respects.
FACTS
In 2000, 13-year-old Stephanie G. opened an account with a telephone chat line called the "Loop," created for children 13 to 18 years of age. She did not tell her mother who was very religious and would not have approved. To open the account, she was required to provide a name, her gender, age, grade in school and zip code. Her chat line name was "Lovely."
The name need not be her real name but could be a nickname or chat name.
In September 2000, Stephanie began conversing with appellant, a Loop subscriber who used the name "Oak Tree." He told her he was 17 to 18 years old, although he was in his early forties. Stephanie told him her true age. After speaking several times, they agreed to meet.
On the evening of September 16, 2000, Stephanie secretly met appellant down the street from her home. He arrived in an old model, gray station wagon and appeared to Stephanie to be about 18 years old. She entered his vehicle, and they drove around and talked. At some point, he told Stephanie she was cute, had a beautiful smile and touched her between her thighs, under her dress. Stephanie did not protest, although she was upset that he touched her because "[f]riends dont touch." When appellant drove her home, they gave each other "friendly kisses" on the cheek.
Stephanie and appellant arranged to meet again on September 18, 2000. At approximately 9:30 p.m. that evening, Stephanie again met appellant near her home. They rode around in appellants vehicle until approximately midnight. After stopping at appellants cousins house, Stephanie became tired and kept telling appellant that she wanted to go home. He ignored her requests, and told her he was taking her to another cousins house. They arrived at a dilapidated house that appeared vacant, across the street from which two men were standing. Appellant told Stephanie "these guys look kind of dangerous," and she should walk to the garage at the back of the house for her safety.
Once inside the garage, appellant threw Stephanie down on an old couch or mattress and lay on top of her. Stephanie felt his penis pressing against her vagina through her skirt. When appellant tried to pull up her skirt, she became frightened, began crying and told him to stop. Appellant ignored her and continued to pull up her skirt, inserting his fingers into her vagina. Stephanie unsuccessfully struggled to "make it not happen." The struggle lasted about five minutes. When they got up, Stephanie asked appellant why he did that to her, and he did not respond. She was frightened and asked to be taken home.
They returned to the car. Appellant drove around for a while. He asked Stephanie, "Why are you acting like this? You sound all nice over the phone and in person. You just mean." Appellant stopped the vehicle in a commercial, "ghetto" type area that was "kind of dark," and where there were few people and few cars. He suddenly grabbed Stephanie and threw her from the front passenger seat into the back seat. He joined her in the back, pulled up her skirt, ripped off her underpants, and lay on top of her. Stephanie struggled against this attack. Appellant told her he was "going to hurt [her]." "Stop moving." Stephanie was on her back with her knees up to her chest and could not move her legs. She said "no," and told appellant to stop. She began crying, but appellant continued his assault. She could not see what was going on, but felt what she thought was appellants penis briefly touch, but not penetrate, her anus right before he inserted it into her vagina. Stephanie closed her eyes and began screaming in pain when appellant inserted his penis into her vagina. She could feel the blood "gushing out like a water fountain," and screamed throughout the attack. When appellant was finished, he told Stephanie he thought she "was going to feel good." Appellant exited the car to return to the front seat, and Stephanie remained in the back where she saw blood on her skirt and the seat.
Appellant drove to a gas station, where he obtained water and towels. He wiped some of the blood off the seat. Appellant asked Stephanie if he could take her to the hospital, and when he took her home, he offered to walk her to the door. She declined both offers. Stephanie told him she was going to tell her mother that he had raped her. He told her to say that someone else did.
When Stephanie entered the house, she told her mother she had been raped. Her mother attempted to wash the blood off of her legs as Stephanie stood in the bathtub. Her mother then took her to St. Francis Hospital in Lynwood, from where she was transferred to San Pedro Hospital where she underwent three to four hours of emergency surgery and was hospitalized for nearly a week.
At the hospital, Toyetta Beukes, a forensic nurse practitioner, and Dr. Miriam Mackovic examined Stephanie. Stephanies pain was so intense, she required general anesthetic for Dr. Mackovics examination. She had abrasions on her neck, her clothing was saturated with blood and there were tears and bruises to various parts of her vaginal area. There was also a hole in the wall that separated the bowel and abdominal area from the vaginal vault. Stephanie lost a "significant" amount of blood, and the breach of the wall separating the bowel created a life threatening risk of infection. Stephanie was the most severe sexual assault case Dr. Mackovic had ever seen. The injuries were indicative of an enormous amount of pain which Dr. Mackovic believed precluded consensual sex as the cause. The extent of the injuries also led Dr. Mackovic to suspect penetration by a foreign object rather than a penis, although she found no sign of any foreign object inside Stephanie.
PROCEDURAL BACKGROUND
This matter proceeded to trial on an information containing eight counts, all related to appellants second meeting with Stephanie. In addition to the charges of which he was found guilty, appellant was also charged in count 6 with aggravated sexual assault by an act of forcible sodomy (§ 269, subd. (a)(3)), and in count 7 with sodomy by force or violence (§ 286, subd. (c)(2)). The jury was unable to reach a verdict on both counts. The information alleged that appellant personally inflicted great bodily injury on Stephanie in connection with all counts except the sixth. It also alleged aggravated mayhem within the meaning of section 667.61, subdivisions (a) and (d) as to counts 1 through 4, 7 and 8, which the jury found to be not true as to all counts.
DISCUSSION
I. Forcible penetration with a foreign object in count 4 is a lesser included offense of aggravated sexual assault in count 5.
Appellant was convicted in count 4 of forcible sexual penetration in violation of section 289, subdivision (a). He was also convicted in count 5 of aggravated sexual assault by forcible sexual penetration of a person under 14 years of age by a person 10 or more years older in violation of section 269, subdivision (a)(5). The trial court found that both counts 4 and 5 related to the vaginal penetration of Stephanie in the car because the jury found the great bodily injury allegation to be true as to both counts. Because the underlying facts of both counts were the same, the trial court stayed sentence on count 4 pursuant to section 654.
Section 289, subdivision (a)(1) provides: "Any person who commits an act of sexual penetration when the act is accomplished against the victims 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."
Section 269 provides: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) A violation of paragraph (2) of subdivision (a) of Section 261. [¶] (2) A violation of Section 264.1. [¶] (3) Sodomy, in violation of Section 286, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] (4) Oral copulation, in violation of Section 288a, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] (5) A violation of subdivision (a) of Section 289. [¶] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life." (Italics added.)
Appellant contends that forcible penetration in count 4 was a lesser-included offense of aggravated sexual assault in count 5 and that appellant could not be convicted of both. He argues that the trial court should have dismissed count 4 and not stayed it. We agree.
A defendant cannot be convicted of both a greater and lesser-included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) "[M]ultiple convictions may not be based on necessarily included offenses." (Ibid.) "`The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." (Ibid .) A lesser offense is necessarily included in the charged offense only if it meets either the "`elements test" or the "`accusatory pleading test." (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.) The accusatory pleading test is satisfied "`"if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed."" (Id. at pp. 288-289.)
Aggravated sexual assault on a child by penetration with a foreign object, as alleged in count 5, requires proof: (1) that the victim is a child under the age of 14, (2) that the defendant is more than 10 years older than the child, and (3) commission of forcible penetration under section 289. Aggravated sexual assault by reason of forcible penetration thus specifically incorporates all of the elements of forcible penetration. The prosecutor agreed as much in closing argument when he argued to the jury that the two alleged violations of section 269 are "both based on other charges." The only additional elements of the aggravated sexual assault charge are that the victim be under 14 years of age and the perpetrator be more than 10 years older. It would be impossible under any circumstance to commit aggravated sexual assault by forcible penetration, without committing forcible penetration. The latter is therefore a lesser-included offense of the former and must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763 ["If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed"].)
II. The five-year great bodily injury enhancement under section 12022.8 was improperly added to appellants conviction of aggravated sexual assault in count 5.
In count 5, appellant was convicted of aggravated sexual assault by forcible penetration under section 269, subdivision (a)(5). In connection with that count, the jury also found true the special allegation that in committing the aggravated sexual assault, appellant inflicted great bodily injury within the meaning of section 12022.8. In appellants sentencing memorandum, he conceded that his sentence for violating section 269 was subject to the five-year enhancement under section 12022.8. The trial court consequently added that enhancement to appellants 15-year-to-life sentence.
Appellant contends that because section 12022.8 does not enumerate section 269 as one of the offenses to which it applies, the trial court was not authorized to apply that enhancement to that conviction, and the enhancement must be stricken.
Respondent urges that we should not reach this issue because appellant has waived it by failing to assert it in the trial court. It also contends that appellants counsel invited any error by appearing to concede in his sentencing memorandum that the section 12022.8 enhancement could be applied to section 269 and by stating at the sentencing hearing that he and the prosecutor "were basically in agreement. I agreed with what he has indicated [regarding sentencing]. So thats why I didnt submit a supplemental, because . . . we were in agreement as to what we thought the court could and could not do." Respondents contentions are without merit.
Where substantial constitutional rights are involved or where sentences are entered in excess of jurisdiction or reflecting obvious legal errors, there is a narrow exception to the general rule that failure to preserve an objection in the trial court waives the right of appellate review. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534; see also People v. Mills (1978) 81 Cal.App.3d 171, 176.) Similarly, the invited error doctrine does not apply to unauthorized sentences. (In re Andrews (1976) 18 Cal.3d 208, 212.) As stated in People v. Scott (1994) 9 Cal.4th 331, 354: "[T]he `unauthorized sentence concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. . . . [¶] Although the cases are varied, a sentence is generally `unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is `clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.]" This is precisely the case here. Appellant contends that the trial court could not apply the section 12022.8 enhancement to his conviction under section 269 as matter of law. There was no discretion involved. We therefore turn to the merits of appellants contention.
Section 12022.8 provides: "Any person who inflicts great bodily injury, as defined in Section 12022.7, on any victim in violation or attempted violation of paragraph (2), (3), or (6) of subdivision (a) of Section 261, paragraph (1) or (4) or subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, or sodomy or oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person as provided in Section 286 or 288a shall receive a five-year enhancement for each such violation in addition to the sentence provided for the felony conviction." Although aggravated sexual assault under section 269 can be committed by committing several of the offenses to which section 12022.8 applies, section 269 is not listed among the sex offenses subject to the enhancement. We are thus confronted with the question of whether that enhancement can be applied to section 269. We conclude that it cannot.
In construing section 12022.8, the first step is to "scrutinize the actual words of the statute, giving them a plain and commonsense meaning." (People v. Valladoli (1996) 13 Cal.4th 590, 597.) Section 12022.8 does not state that it applies to section 269. Respondent argues that because the predicate offense on which appellants conviction of section 269 is based, section 289, subdivision (a), is listed in section 12022.8, and the jury necessarily found a violation of section 289, subdivision (a) in convicting him of section 269, the enhancement is applicable to section 269. We disagree.
Although section 269, subdivision (a)(5), incorporates the elements of section 289, section 269 is a separate and independent offense. Section 289 is expressly made subject to the section 12022.8 enhancement, while section 269 is not. Under the axiom of construction that expressio unius est exclusio alterius, the listing in section 12022.8 of a series of offenses to which it applies, implies the exclusion of all others which are not listed, including section 269. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230.)
The Legislature has demonstrated that when it intends section 269 to be included in a statute, it directly provides for it. Section 667.71, dealing with habitual sexual offenders, listed section 269 as one of sections to which it applied, even though it also enumerated several other offenses on which a section 269 conviction could be predicated. (See also § 290.4.) Because section 12022.8 is clear on its face, we do not seek hidden motives or objects that do not appear on the face of the statute or from its legislative history. (Holder v. Superior Court (1969) 269 Cal.App.2d 314, 318.)
But even the legislative histories of sections 12022.8 and 269 provide no basis for interpreting the clear language of section 12022.8 to include section 269. Section 12022.8 was added in 1979 to "create a new [great bodily injury] enhancement of 5 years for any person who, during the commission of a forcible sexual assault offense, inflicts great bodily injury," replacing the then existing three-year enhancement. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 13 (1993-1994 Reg. Sess.) as amended Mar. 5, 1979, p. 6.) Section 269 was adopted in the 1993-1994 legislative term. It provided a 15-year-to-life sentence for its violation. The Assembly Committee on Public Safety articulated its purpose: "Purpose. According to the author: Forcible penetration sex offenses by [sic] against children are among the most vile acts imaginable. Many of these offenders repeat their crimes. This bill will presumptively keep these offenders off the streets for life." (Assem. Com on Public Safety, Analysis of Sen. Bill No. 30 (1993-1994 1st Ex. Sess.) July 5, 1994, p. 1.) It is not surprising that when section 12022.8 was amended in the 1993-1994 term to add spousal rape to the offenses to which section 12022.8 applies, and again in 1997 to add attempts, the Legislature did not add section 269. Such an additional penalty would be unnecessary for section 269 offenses as the legislators believed the punishment of 15 years to life would effectively keep such offenders in jail for their entire lives. None of the offenses subject to the section 12022.8 enhancement provides for a life sentence.
Respondent argues that this case is controlled by the reasoning in People v. Jimenez (2000) 80 Cal.App.4th 286. We do not agree with the reasoning in that case. There, the defendant was convicted of two counts of violating section 269, subdivision (a)(3) (forcible sodomy of a child under 14 by a person more than 10 years older), and violating section 288, subdivision (a). He was sentenced to consecutive terms of 15 years to life for the sodomy convictions and a concurrent six-year term for the section 288 conviction. The defendant contended on appeal that the trial court erred in concluding as a matter of law that it was required to sentence him to consecutive terms pursuant to section 667.6, subdivision (d) because he had been convicted of violating section 269, not section 286 (forcible sodomy), the former section not being one of the enumerated offenses to which section 667.6, subdivision (d) applies, while the latter is. The Court of Appeal held that despite section 667.6, subdivision (d)s omission of section 269, it was nonetheless applicable to that section because violation of section 269, subdivision (a)(3), necessarily included the elements for violation of section 286, which was included in section 667.6, subdivision (d). In reaching this conclusion, the Court of Appeal purported to review the legislative history of section 667.6 and found that it was enacted prior to section 269. The court referenced the rule of construction that "[i]n enacting subsequent statutes, the Legislature is presumed to be aware of existing statutes and judicial decisions" (People v. Jimenez , supra, at p. 291), but failed to explain how that rule applied. Contrary to that courts conclusion, application of the rule would appear to establish that when the Legislature adopted section 269, knowing of, but without amending, section 667.6, subdivision (d) to include it, it did not intend it to be included.
Moreover, the legislative history of section 667.6, as articulated in People v. Jiminez, is significantly different from the legislative history of section 12022.8 presented here. The Court of Appeal in People v. Jimenez did not note any amendments to section 667.6 after adoption of section 269, which would have given the Legislature the opportunity to amend section 667.6, subdivision (d) to include section 269, if it chose to do so. Here, the Legislature amended section 12022.8 after adoption of section 269 to add new offenses subject to the enhancement, but failed to add section 269. This strongly suggests that the Legislature did not intend the enhancement to apply to section 269.
We conclude that the five-year, great bodily injury enhancement in section 12022.8 does not apply to section 269, and the trial court therefore erred in applying it to count 5. This does not mean, however, that no great bodily injury enhancement is applicable to that count.
Pursuant to our request the parties submitted supplemental briefing on the issue of whether, if section 12022.8 is inapplicable to a violation of section 269, subdivision (a)(5), would section 12022.7 be applicable, and if so, whether section 12022.7 can be applied if it is not alleged in the information but the jury specifically found great bodily injury within the meaning of section 12022.8.
Section 12022.7, provides for a three-year enhancement for any person who personally inflicts great bodily injury on his or her victim in the commission of any felony. It is not restricted to the felonies enumerated in section 12022.8, and is therefore applicable to section 269. The information filed against appellant alleged great bodily injury under section 12022.8, not section 12022.7, thereby referring to the wrong statute.
A reference to the wrong statute in an accusatory pleading is of no consequence where specific allegations in the accusatory pleading give notice of the charge. (People v. Hillard (1989) 212 Cal.App.3d 780, 783.) "`[T]he specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in the charge." (People v. Thomas (1987) 43 Cal.3d 818, 826.) In fact, a valid accusatory pleading need not specify by number the statute under which the accused is being charged. (Ibid.) "Section 12022.7 only requires the information to contain an allegation of great bodily injury. There is no requirement in section 12022.7 that the information specifically allege a violation of that section itself. [¶] . . . [¶] We addressed a similar question in People v. Barela (1983) 145 Cal.App.3d 152, 161, footnote 5. There, the information alleged that the defendants personally used a firearm within the meaning of Penal Code section 12022.5. The information did not, however, allege a violation of section 1203.05—the companion section for use of firearms to section 1203.075, alleged here. In deciding that case we ruled that the allegation of the one section `imparts sufficient knowledge to respondent that use of a firearm is at issue. [Citation.] We reach the same conclusion here." (People v. Allen (1985) 165 Cal.App.3d 616, 630-631.)
An allegation that appellant inflicted great bodily injury for the purpose of section 12022.8 alleges the same facts necessary for a violation of section 12022.7. Here, the information clearly advised appellant that he was being charged with inflicting great bodily injury on Stephanie. We can see no prejudice to any of appellants substantial rights because it identified the wrong statute. The jury found that appellant caused great bodily injury in connection with count five, which was sufficient to support imposition of the section 12022.7 three-year enhancement. We therefore modify the judgment to impose the correct bodily injury enhancement statute, section 12022.7. (§ 1260 ["The court may reverse, affirm, or modify a judgment or order appealed from . . . ." (Italics added.)]; People v. Harshaw (1932) 128 Cal.App. 212, 219 [appellate court can modify judgment to require trial court to sentence on lesser offense within crime for which he is convicted, provided evidence is adequate to support the lesser offense].)
III. Appellant waived his claim that the trial court erred in imposing fully consecutive upper terms under section 667.6, subdivision (d) on counts 1 and 2.
The trial courts findings.
In a series of sentencing hearings, the trial court concluded that the guilty verdicts for forcible penetration in count 4, aggravated sexual assault based on forcible penetration in count 5 and forcible lewd acts in count 8, were all based on the vaginal penetration of Stephanie in the car because the jury found the great bodily injury allegation in connection with each to be true. It also concluded that the guilty verdict for forcible penetration in count 1 and forcible lewd acts in count 3 were premised on appellants insertion of his fingers into Stephanies vagina in the garage, as those verdicts were accompanied by findings that the great bodily injury allegation was not true and the digital penetration in the garage was the only other forcible penetration during the incident, except for the alleged sodomy counts on which the jury was unable to reach a verdict. The trial court agreed with both counsel that it could only sentence appellant on one of the three forcible lewd act counts because "the jury could have based its guilty verdict on any one of the number of forcible lewd acts upon the victim." It reasoned that since two of the forcible lewd act verdicts could have been based on the two acts of penetration already the subject of other counts on which appellant was being sentenced, it could only sentence on count 2. It found that the offenses alleged in counts 1 (forcible penetration in the garage), 5 (aggravated sexual assault based on forcible penetration in the car), and 2 (some other forcible lewd act) occurred on separate occasions within the meaning of section 667.6, subdivision (d), because appellant had a reasonable opportunity between the crimes to reflect on his actions.
Section 667.6, subdivision (c) provides that the trial court "may" impose "full, separate, and consecutive term" for specified sex offenses including sections 288 and 289. Section 667.6, subdivision (d) mandates such a sentence "if the crimes involve separate victims or involve the same victim on separate occasions."
The sentence.
As a result of its finding that counts 1, 2 and 5 were committed on separate occasions, the trial court concluded that it "must impose full, separate and consecutive sentences for these offenses pursuant to [section] 667.6(d)." It stated that even if it were not required to impose such sentences, it would exercise its discretion to do so because the crimes involved a high degree of cruelty, callousness and great violence.
In evaluating the aggravating and mitigating factors to determine whether to impose upper, lower or middle term, the trial court found as to count 1 that the victim was particularly vulnerable, the crime was carried out with planning, sophistication and professionalism, and appellant was a serious danger to society. Among the class of victims under 14, Stephanie was particularly vulnerable because she was small in stature and unsophisticated, as evidenced by her belief that appellant was a teenager. The only mitigating factor, that appellant had a minimal record, was outweighed by the circumstances in aggravation. The trial court therefore imposed the upper term of eight years on count 1.
As to counts 2 and 3, the trial court found the same aggravating and mitigating factors and imposed the upper term of eight years. It imposed the sentence on count 2 fully consecutive to count 1 and stayed count 3 pursuant to section 654.
The trial court concluded that it was required to impose fully consecutive sentences on count 5 and that, in any event, it would otherwise exercise its discretion to impose that sentence. For this offense, appellant was sentenced to 15 years to life, plus five years for the section 12022.8 enhancement. The aggregate determinate sentence of 16 years was to be served before the sentence in count 5.
Finally, the trial court found that the offenses in counts 4 and 8 "are punishable in different ways by different provisions of law, but cannot be punished under more than one provision," and appellant was punished for count 5 which was based on the same conduct. The trial court sentenced appellant to 15 years to life on each of the convictions of counts 4 and 8, which it stayed.
Appellants contentions.
Appellant contends that the trial court erred in imposing fully consecutive upper-term sentences on counts 1 and 2. His argument goes as follows: The trial court and parties agreed that the forcible lewd act conviction of count 3 and the forcible penetration conviction of count 1 were both based on the act of digital penetration in the garage. As they were based on the same act, appellant could only be sentenced on one of the two charges and was sentenced on count 1. They also agreed that the forcible lewd act conviction of count 8, the forcible penetration conviction of count 4, and aggravated sexual assault of count 5 were based on the vaginal penetration in the car. Appellant could only be sentenced on one of those three charges and was sentenced on count 5. The forcible lewd act in count 2 was not based on either act of forcible penetration, but had to have been committed either in the garage or in the car where all of the sex offenses occurred. As a result, the trial court erred in finding that the forcible lewd act in count 2 was committed on a separate occasion from the forcible penetration in count 1 or the aggravated sexual assault in the car in count 5, and it was not required to order fully consecutive sentences on counts 1 and 2, pursuant to section 667.6, subdivision (d). He further argues that the trial court abused its discretion in imposing fully consecutive sentences pursuant to section 667.6, subdivision (c) because it relied on improper aggravating factors.
Respondent contends that appellant waived all of his claims regarding sentencing by failing to raise them in the trial court and invited any errors that may have occurred by reason of his informing the trial court that he concurred with the prosecution as to the presence of consecutive, full terms along with a life term for count 5.
Our Supreme Court has stated: "We conclude that the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott, supra, 9 Cal.4th at p. 353.) "In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Id. at p. 354.) Scott identified among those discretionary sentencing decisions, the decision to order probation, to impose the upper, lower or middle term, and to impose consecutive rather than concurrent sentences. (Id. at p. 349.)
Here, appellant contends that the trial court abused its discretion in sentencing him to fully consecutive, upper terms on count 1 and count 2. He argues that the trial court (1) failed to provide a separate statement of reasons for imposing consecutive rather than concurrent terms or for its decision to apply fully consecutive terms, (2) improperly relied upon the "high degree of cruelty, viciousness or callousness" as a factor in imposing fully consecutive sentences, as it had already considered the great violence and infliction of great bodily injury in enhancing appellants sentence on count 5, (3) improperly considered as a factor in imposing fully consecutive sentences that appellant assaulted Stephanie although she "repeatedly begged [him] to stop and to take her home," as forcible sex offenses are not worse because of the victims protests, (4) improperly considered as factors in imposing fully consecutive terms that appellant had daughters older than Stephanie and therefore understood that she was a child and told her despite her screaming that he thought he would make her feel good, because such violence is inherent in all forcible sex crimes, and (5) improperly considered as factors in imposing the upper term on counts 1 and 2 that Stephanie was particularly vulnerable, appellant had engaged in violent conduct and was a danger to society, as violence is inherent in forcible sex crimes and there was no evidence appellant had a history of prior violence.
These are the precise types of discretionary sentencing decisions that People v. Scott mandates must be objected to in the trial court, or a waiver will result. Appellant has therefore waived these claims. Because the trial courts ruling on discretionary grounds must be affirmed regardless of whether it correctly determined that it was mandatory that it impose fully consecutive sentences, we need not decide if it was mandatory.
Having concluded that the imposition of high term on counts 1 and 2 have been waived we need not discuss whether appellant invited the trial courts error.
Appellant contends that if his claims of improper sentencing were waived by virtue of counsels failure to object, then he suffered ineffective assistance of counsel. This contention is without merit.
To successfully assert a claim of ineffective assistance of counsel, a defendant must demonstrate that counsels representations fell below an objective standard of reasonableness, and but for counsels errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.) We conclude that the trial court properly exercised its discretion in sentencing appellant to fully consecutive upper terms on counts 1 and 2, and therefore there is no reasonable probability a timely objection would have changed the result.
The trial court exercised its discretion to impose fully consecutive sentences because each crime involved a high degree of cruelty, viciousness or callousness, great violence and great bodily injury, and appellant had daughters of his own who are older than the victim and must have understood that Stephanie was just a child.
The same California Rule of Court that sets forth factors in determining whether to impose a concurrent or consecutive sentence is applicable in assessing whether to impose a fully consecutive sentence pursuant to section 667.6, subdivision (c). (Cal. Rules of Court, rule 4.426(b); People v. Pena (1992) 7 Cal.App.4th 1294, 1319.) California Rules of Court, rule 4.425 sets forth those factors, which include: "(a) Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other. [¶] (2) The crimes involved separate acts of violence or threats of violence. [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendants prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences."
The trial court did not improperly evaluate the factors in deciding to impose fully consecutive sentences. California Rules of Court, rule 4.425 authorizes the trial court to consider any aggravating circumstance, so long as the factor is not used to impose the upper term, to enhance the sentence or is an element of the offense. Appellants extreme cruelty and callousness are none of these. Appellant sexually abused Stephanie knowing she was only 13 years old. After inserting his penis, or some other object, in her vagina in the car, he ignored her requests that he stop and take her home and continued his assault despite her screams of excruciating pain and profuse bleeding. After completing his assault, he told her that he thought she "was going to feel good," evidence of cruelty and callousness. The trial court also considered in aggravation that the crime was one of "great violence." This too is not an element of either crime. Although forcible penetration requires that it be "accomplished against the victims will by means of force, violence, duress, menace, or fear" (§ 289, subd. (a)(1), italics added), the trial court found that appellant used "great violence." This exceeds the minimum requirement of "violence" and may be used as an aggravating factor. (See People v. Garcia (1989) 209 Cal.App.3d 790 [Court of Appeal concluded that the aggravating factor that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty was not duplicative of the requirement that a rapist utilize force or violence necessary to show that the act was against the victims will].) This factor was not used to impose the upper term, to enhance the sentence or as an element of the offense.
The trial court also exercised its discretion in imposing the upper term articulating that the victim was particularly vulnerable, as she was small in stature and particularly immature, the crime was carried out with planning, sophistication or professionalism, and appellant engaged in violent conduct that indicates a serious danger to society. The only mitigating factor was that he had a minimal criminal record.
California Rules of Court, rule 4.421 lists the factors in aggravation which include that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)), the manner in which the crime was committed reflected planning, sophistication and professionalism (Cal. Rules of Court, rule 4.421(a)(8)) and the defendant engaged in violent conduct which indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)). California Rules of Court, rule 4.420(d) provides that in considering the factors in aggravation for determining what term to impose, an element of the offense "shall not be used to impose the upper term."
Stephanies vulnerability due to her small stature and immaturity was a proper factor for the court to consider in imposing the upper term. Although age is an element of both forcible penetration and aggravated sexual assault based on forcible penetration, Stephanies vulnerability was not based on Stephanies exclusively on her age, but on her physical and mental development. (See People v. Estrada (1986) 176 Cal.App.3d 410, 418-419.) "[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence." (People v. Castorena (1996) 51 Cal.App.4th 558, 562.) This one factor alone justified imposition of the upper term. (Id. at p. 562, fn. 10.)
DISPOSITION
The judgment is modified to replace the five-year great bodily injury enhancement, within the meaning of section 12022.8, in connection with count 5, with the three-year great bodily injury enhancement within the meaning of section 12022.7, and the conviction of forcible penetration in count 4 is reversed. On remand, the trial court is ordered to modify the abstract of judgment to reflect the above ordered changes. The judgment is affirmed in all other respects.
We concur: NOTT, Acting P.J. and ASHMANN-GERST, J.