Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County, Arthur A. Harrison, Judge, Super. Ct. No. FSB039180.
McCONNELL, P. J.
Joaquin Jesus Sosa was convicted by a jury of kidnapping (Pen. Code,§ 207), two counts of rape (§ 261, subd. (a)(2)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)) and assault with a deadly weapon (§ 245, subd. (a)(1)). True findings were made that the sexual offenses occurred during a kidnapping that substantially increased the risk of harm to the victim (§ 667.61, subds. (a),(d)). He was sentenced to an indeterminate term of 25 years to life to be served consecutively to a determinate upper term sentence of eight years.
All statutory references are to the Penal Code unless otherwise specified.
Sosa contends his convictions should be reversed because prior acts of domestic violence were improperly admitted and his motion for a new trial based on ineffective assistance of counsel should have been granted. Sosa claims his defense counsel was ineffective due to a conflict of interest, a failure to adequately advise him on a proffered plea bargain, and failure to sufficiently consider his proposed trial testimony. He also contends one of the oral copulation counts should be reversed because it is not supported by substantial evidence. Following the California Supreme Court's decision in People v. Black (2007) 41 Cal.4th 799 (Black II), we invited and considered supplemental briefing on the propriety of Sosa's upper term sentence. We affirm the judgment.
FACTS
Sosa dated Jane Doe for about two years. In late March or early April 2003, Doe broke up with Sosa, telling him they could remain friends. She called a few times after the break-up. She told him some singers she liked were going to be at the La Luna nightclub and she might go see them. He asked, "Aren't you going to invite me?" She answered, "No. Anybody can go there. I am not stopping you from going, but I am not inviting you either."
On the evening of April 19, 2003, Doe went to the La Luna nightclub with a cousin and a friend, Luis. They stayed until about 1:30 a.m. Sosa also went to La Luna with his friend, Oscar. When Sosa saw Doe leaving with her cousin and Luis, he angrily approached her, called her a whore and a slut and accused her of having a new boyfriend. Luis, who did not want to be involved, returned to the nightclub. Doe and her cousin attempted to drive away but Sosa blocked Doe's exit with his car. After convincing Sosa she would talk to him if he let her leave the nightclub's parking lot, he let her leave.
Doe sped away, running two or three red lights as Sosa chased her. She drove into a parking lot. When she tried to leave, Sosa blocked her exit. Sosa got out of his car and pounded on her driver's side door. Afraid he was going to break the window, Doe decided to get out of the car to talk to him. As soon as she opened the door, he pulled her from the car and started dragging her towards his car. When she struggled to get free, Sosa called for his friend's assistance and the two of them dragged her into the back seat of his car. Sosa ignored the cries of Doe's cousin not to take Doe and drove away while the cousin was hanging onto his vehicle.
Doe pleaded with Sosa to go back for her cousin because her cousin was not from the area, did not know where she was, did not speak English and did not know how to drive. Sosa returned to the cousin and told Oscar to drive Doe's car and the cousin to his apartment. On the way to the apartment, Sosa told Doe to get in the front seat and hit her when she tried to hit him. Once they arrived at his apartment, Sosa told Oscar to take the cousin to a location and stay there for about an hour. He told Doe they were going to his apartment and to walk "normal," as if they were still together. He said if she did not do that, she would not see her cousin again.
Once inside the apartment, which Sosa shared with his mother and brother, he and Doe went to his bedroom. He began kissing her. When she pushed him away, he again told her if she did not comply she would not see her cousin again. He forced her to orally copulate him. During the oral copulation, she stopped, telling him she needed to vomit. She vomited into a towel or piece of fabric. She had not been drinking that night; the vomiting was due to gagging during the oral copulation. She lay back on the bed to avoid vomiting again. Sosa began another act of forcible oral copulation and then raped her. A second rape was interrupted when Sosa's brother, who had been sleeping in the living room, knocked on Sosa's bedroom door to tell him that Oscar was at the front door and wanted to speak to Sosa. Both Sosa and Doe dressed. She heard Oscar ask Sosa what was taking so long and telling him he was ready to go. Sosa then allowed Doe to leave, walking her out of his apartment to where her car and cousin were located. Doe left the apartment at about 5:30 a.m.
Doe and her cousin first drove to Luis's house. They tried to convince him to go with them to the police station as a witness, but he refused so Doe and her cousin went by themselves.
Doe's cousin had a number of abrasions on her arms and legs that were consistent with being dragged on a rough surface like asphalt for 10 to 15 feet. Doe appeared visibly shaken. The officer who interviewed Doe described her as forthcoming and scared; Doe did not appear to be withholding information or making up the incident. Her statements to the police were essentially the same as her trial testimony.
Doe's physical examination revealed abrasions in her genital area that were consistent with forcible sexual activity and that are not normally found in a sexually active woman engaging in consensual intercourse. Doe also had other injuries, including swelling on her upper lip, an abrasion on her shoulder, and bruises on her right arm that were consistent with Doe's statement of what had occurred.
During the execution of a search warrant of Sosa's bedroom, the police found a towel that appeared to have vomit on it.
About a month later, Doe sought to drop the case because it kept reminding her of the incident, it was embarrassing, and she did want not to testify in front of numerous people she did not know.
Sosa's former girlfriend testified about prior acts of domestic violence. She had a nearly seven-year relationship with Sosa that ended in late 1997 or early 1998. During the relationship, Sosa slapped her on many separate occasions, once gave her a black eye and four to five times forced her to have sex with him. After the relationship ended, when she refused to talk to him about getting back together, he engaged in a car chase and ran her off the road into a ditch.
In his defense, Sosa's mother and his brother testified that when they saw Doe that night she did not appear upset or scared. Neither the mother nor brother heard any screaming or yelling coming from Sosa's bedroom while Doe was in the apartment.
DISCUSSION
I
Prior Acts
Sosa contends the court erred in admitting evidence of the domestic violence acts he committed against his former girlfriend because the charged crimes did not involve domestic violence and because any probative value was outweighed by the prejudicial effect.
Evidence Code section 1109 authorizes evidence of prior acts of domestic violence to prove a defendant has a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence. The trial court has discretion to exclude prior acts of domestic violence if the probative value is outweighed by a danger of undue prejudice, might confuse the jury, or would result in an undue consumption of time. (Evid. Code, §§ 1109, subd. (a)(1), 352.) In assessing whether evidence is unduly prejudicial, the question is whether the evidence "tends to evoke an emotional bias against the defendant with very little effect on issues . . . ." (People v. Crew (2003) 31 Cal.4th 822, 842.) In other words, the question is whether there is a likelihood the evidence will inflame the jury so that they will not base their verdict on the evidence presented as to the charged offenses but rather on an emotional response to the defendant's commission of other acts or crimes. (People v. Heard (2003) 31 Cal.4th 946, 976; People v. Branch (2001) 91 Cal.App.4th 274, 286.)
" 'Domestic violence,' " for the purposes of Evidence Code section 1109, is broadly defined as "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (Pen. Code, § 13700, subd. (b); Evid. Code, § 1109, subd. (d)(3).) " 'Abuse' " is defined as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Pen. Code, § 13700, subd. (a)(3); Evid. Code, § 1109, subd. (d).)
(A) Charged Offenses and Domestic Violence
Sosa argues the prior acts were not admissible because this case does not involve charges of domestic violence but rather "sexual offenses and related charges." Therefore, he concludes, "the domestic violence propensity evidence was inadmissible because a propensity to commit domestic violence is irrelevant to the defendant's propensity to commit the charged crimes." We disagree.
Sexual offenses and kidnapping may constitute domestic violence. These offenses, involving the use of force or threats, can constitute "abuse," that is, the intentional or reckless infliction of physical harm or placing the victim in reasonable fear of imminent physical harm to herself or another person. When the victim is someone with whom the defendant has had a dating relationship, then these offenses can constitute domestic violence. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1138-1139, holding that charged forcible sexual offenses can constitute domestic violence supporting the admission of past acts of domestic violence under Evidence Code section 1109.)
As charged, the rapes and forcible oral copulations required proof of being accomplished against the victim's will "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the [victim] or another person." (§§ 261, subd. (a)(2), 288a, subd. (c)(2).) To prove kidnapping, it is necessary to prove a person "forcibly, or by other means of instilling fear, steals or takes, or holds, detains, or arrests" the victim and moves the victim to another area. (§ 207, subd. (a).)
In this case, Sosa had had a dating relationship with Doe. He committed the offenses because he was upset about Doe not wanting to continue the relationship. He abused her, including by physically dragging her and threatening to harm her cousin if she did not comply with his demands.
(B) Prejudicial Effect Versus Probative Value
Sosa contends the evidence was only marginally relevant because it was remote in time and involved a different victim. Therefore, he concludes, the evidence should have been excluded on the basis its probative value was outweighed by the prejudicial impact.
The prior domestic violence acts were not remote in time. Sosa's relationship with his former girlfriend ended in late 1997 or early 1998. He ran his former girlfriend's car off the road after the relationship ended, presumably in 1998. Sosa's relationship with Doe began only a few years later in 2001. This is not a situation where the domestic violence against the former girlfriend occurred at some distant time in the past and represented an aberrant period of behavior. Rather, the evidence showed a continuing pattern of domestic violence occurring during the two relationships.
Doe broke up with Sosa about two or three weeks before the offenses, after dating him for about two years.
The prior acts had significant probative value not only because they showed a continuing pattern of domestic violence, but also because they involved similar acts. With both women, Sosa threatened violence in order to obtain compliance with his sexual demands. When they rejected him, he reacted violently by running the former girlfriend off the road and kidnapping and sexually violating Doe. Moreover, the prior domestic
violence acts were not unduly inflammatory compared to the charged offenses. The prior acts involved slapping, one black eye, threats to obtain sex, and one incident of running a car off the road where no one was apparently injured. The charged offenses involved kidnapping the victim, dragging her cousin alongside a moving car, threatening to harm her cousin and multiple forced sexual offenses occurring over a period of many hours.
We find no basis for reversing the judgment based on the admission of the prior acts committed against the former girlfriend. They were relevant and not unduly prejudicial.
II
Motion for a New Trial
Sosa made a motion for a new trial on the basis his counsel was ineffective because a conflict of interest existed and counsel did not adequately inform him of his right to have independent counsel review the conflict, counsel failed to adequately advise him about a plea bargain, and counsel failed to adequately advise him of his right to testify.
To establish denial of the right to effective assistance of counsel, the "defendant must show (1) that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) that it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Taylor (1990) 52 Cal.3d 719, 731; People v. Ochoa (1998) 19 Cal.4th 353, 445.)
" 'In evaluating defendant's showing we accord great deference to the tactical decisions of trial counsel in order to avoid "second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel to 'defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .' " ' " (People v. Padilla (1995) 11 Cal.4th 891, 936, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Only when a critical tactical decision would not have been made by diligent, ordinarily prudent criminal trial attorneys will a reviewing court find ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 926.) On appeal, " '[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention [that counsel provided ineffective assistance] must be rejected.' " (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
(A) Conflict of Interest
Before trial, Sosa's defense counsel was criminally charged with a conspiracy to violate Business & Professions Code section 6152, which punishes persons who solicit for consideration clients in jails or prisons.
Sosa requested we take judicial notice of the records contained in People v. Rozenberg, San Bernardino County Superior Court case No. FSB046236. We deny this request because it does not appear that these records were considered by the trial court in this case and because they are not necessary to the resolution of this appeal.
On November 19, 2004, Sosa signed a waiver of conflict form stating that he had been advised of the criminal prosecution, of a potential conflict between his trial counsel and the district attorney's office and that he could have his trial counsel replaced. On the form, he indicated he wanted to continue being represented by his trial counsel. The same day, the court examined Sosa on the waiver form in open court. The court confirmed that Sosa understood the nature of the conflict, that he was being prosecuted by the district attorney's office and that his attorney was acting on his behalf against the district attorney's office. The court also told Sosa that he was entitled to representation by the attorney he had chosen.
In his declaration filed for the new trial motion, Sosa stated his trial counsel had stated the conflict was "no big deal" and "had nothing to do with [his] case." His trial counsel did not mention Sosa had a right to consult with independent counsel. Sosa did not see the waiver form until he was in court when his trial counsel presented it to him and asked him to sign it. He only had time to "scan" it and did not know what it said until an attorney he retained for the new trial motion brought him a copy. Had he known what it stated, he would have retained new counsel. At the new trial motion hearing, Sosa claimed he did not remember a hearing about the conflict or the court asking him any questions. He stated his trial counsel had not explained what the waiver was. He claimed he still did not know what the waiver stated. He, however, also admitted his trial counsel had explained it was about a conflict.
The attorney who represented Sosa at the new trial motion stated in a declaration that in his expert opinion, Sosa's right to effective representation was compromised by the criminal charges against trial counsel. The attorney would have advised Sosa to be cautious and consider changing counsel because of the danger his trial counsel would focus on his own criminal case rather than on Sosa's case, trial counsel's credibility with the court system would be undermined and the confidentiality of Sosa's criminal files might have been breached by a search of his counsel's office.
"The federal and state constitutional rights to the assistance of trial counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to representation by counsel without any conflict of interest [citation]." (People v. McDermott (2002) 28 Cal.4th 946, 990.) An appellate court may reverse a conviction based on a potential conflict of interest, even in the absence of an objection, if the record supports an informed speculation that the appellant's right to effective representation was prejudicially compromised by the conflict. (People v. Clark (1993) 5 Cal.4th 950, 994-995.) "When a trial court knows or should know of a possible conflict of interest between a defendant and defense counsel, the court must inquire into the circumstances and take appropriate action. [Citation.] Such action may include ascertaining whether the defendant wishes to waive the right to be represented by conflict-free counsel. Although a trial court may refuse to accept such a waiver [citation], it is not required to do so [citations]. The defendant's waiver must be a knowing, intelligent act done with awareness of the circumstances and likely consequences, and it must be unambiguous." (People v. McDermott (2002) 28 Cal.4th 946, 990.)
Here, the record shows Sosa signed a written waiver and told the court he understood the nature of the conflict and wanted to retain his defense counsel despite the conflict. The court implicitly determined that Sosa had made a knowing and intelligent waiver since the court accepted the waiver and allowed Sosa to continue being represented by the same attorney. While both the written waiver and the court's examination of Sosa about the conflict could have been more extensive, nonetheless, at the new trial hearing, the court was entitled to reject as not credible Sosa's claim that his waiver had not been knowingly and intelligently made.
We note the written waiver form stated there was a potential conflict between the district attorney's office and his attorney, rather than between Sosa and his attorney, and the court's examination of Sosa about the conflict was rather cursory.
Sosa also argues his waiver should not be binding because he was not informed of his right to consult an independent attorney about the conflict. He asserts had he known of this right, he would have consulted independent counsel and retained different counsel. Assuming this is true and that a reasonably competent attorney would have informed Sosa of his right to consult independent counsel, it does not necessarily follow that Sosa has established that his right to effective representation was prejudicially compromised by the conflict.
Here, there was, at most, only a potential conflict, based on the possibility that Sosa could be called as a witness in a prosecution of his attorney or that his attorney might be unduly preoccupied with his own criminal case. There is no evidence Sosa was involved in a conspiracy with defense counsel, that is, had obtained any clients for his defense counsel. Nor is there any evidence his attorney abandoned or neglected his case because of the pending criminal case. Sosa's case was straightforward, it involved a woman who promptly reported the kidnapping and sexual offenses and testified credibly in front of a jury. Sosa has not shown any prejudice deriving from the potential conflict of interest. We find no error in the trial court's refusal to grant a new trial on this ground.
(B) Advice as to Plea Bargain
In a declaration submitted in support of his motion for a new trial, Sosa stated his trial counsel told him on at least two occasions that the People were offering "a ten-year deal" and on the day of trial told him there was an "offer of four years with two strikes." As to each plea bargain, his trial counsel told him it was up to him whether to accept the deal. Sosa stated he turned down the plea bargains because he expected he would testify and explain to the jury what happened. Additionally, had he known he was facing a life sentence, he would have consulted with his family "and based upon what they have told [him] since, they would have recommended that [he] take the deal" and he would have followed their advice.
In the declaration by the attorney who represented Sosa at the new trial hearing, the attorney criticized Sosa's trial counsel for telling Sosa only that he could "take it or leave it," explaining that "[a]t the plea bargain stage, it is absolutely essential that competent counsel offer an assessment of the client's prospect of prevailing should the matter proceed to trial."
Sosa argues he was prejudiced by his counsel's ineffective assistance as shown by "[t]he fact that the proposed plea — four years — was significantly more favorable than [his] actual sentence of 33 years to life . . . ." At the hearing on his new trial motion, he testified his attorney communicated the four-year agreement "[r]ight before trial." He did not accept the offer because he was not guilty of the charges.
Initially, we note Sosa's declaration relies significantly on a hindsight view. He now believes he would have consulted his family about the four-year plea agreement, his family would have urged him to accept a plea agreement, and he would have followed their advice. However, there is nothing in the record indicating that Sosa was in any way prevented from consulting with his family at the time the plea agreements were offered.
Second, the trial court was entitled to find that Sosa's contention that he did not accept the plea agreement because he was unaware of the length of his potential sentence was not credible. The record shows the section 667.61, subdivisions (a) and (d) allegations that exposed Sosa to a possible life sentence were contained in the first amended complaint, which was filed in early June 2003, nearly two years before trial started and the four-year agreement was offered. Moreover, even without the section 667.61, subdivisions (a) and (d) allegations, Sosa faced a lengthy prison term if he had been convicted on all counts. Thus, the court could reasonably reject Sosa's claim that he rejected the plea offer because he did not realize he was facing a long prison term.
Sosa was charged with two counts of kidnapping (one of Doe, the other of her cousin) that were punishable by three, five or eight years. (§ 208, subd. (a).) The four sexual offenses were punishable by three, six or eight years. (§§ 264, subd. (a); 288a, subd. (2).) Sosa was also charged with assault with a deadly weapon, which is punishable by two, three or four years. (§ 245, subd. (a)(1).)
Third, there is nothing inherently improper in an attorney telling a defendant that he must decide whether to accept a plea agreement and admit guilt or go to trial.
Finally, Sosa's declaration and testimony suggest the reason his trial counsel did not strongly urge Sosa to accept the four-year agreement was that Sosa rejected all prior plea agreements because he felt he was not guilty. In other words, it was probably apparent to trial counsel that Sosa was not going to accept any plea agreement but wanted to go to trial. The court could reasonably conclude that any further urging by trial counsel to accept the offer probably would have been futile and thus that trial counsel did not provide ineffective assistance.
(C) Decision Not to Testify
Sosa contends his counsel was ineffective for failing to advise him to testify in his own defense. He argues that given this was a "he said/she said" situation, he should have been advised to testify so that the jury would have heard his version of what occurred.
In his declaration, Sosa stated that defense counsel twice asked him to briefly describe what happened. Defense counsel told him that if Sosa's former girlfriend testified, he should not testify because the prosecutor "would eat [him] alive." According to Sosa's declaration, he and Doe were planning to marry. He did not angrily confront her in the parking lot. Rather, they talked, drove to another parking lot where Doe agreed to go with him while her cousin went with Sosa's friend, Oscar. He and Doe went to his apartment where they had consensual sex, although he also stated Doe became nauseated during oral sex.
The trial counsel's investigator submitted a declaration stating he was present during two meetings between Sosa and the trial counsel. Each meeting lasted 15 to 20 minutes and most of the time was spent discussing whether Sosa could refer other inmates to trial counsel or discussing the trial counsel's personal interests. At the hearing, the investigator admitted Sosa's trial counsel owed him money, and had threatened him.
The attorney who represented Sosa at the new trial motion, in his declaration, faulted defense counsel for not engaging in further discussions with Sosa about his potential testimony, noting that while it can be a valid tactical decision not to put a client on the stand if counsel fears he cannot withstand cross-examination, such a decision "cannot be made in a vacuum."
The record shows the determination that the former girlfriend could testify was made in a pretrial motion.
Trial counsel's advice to Sosa not to testify clearly involved a tactical matter and was based on trial counsel's assessment the prosecutor would "eat [him] alive." An assessment that a defendant would not benefit himself by testifying is a reasonable tactical decision, even when, as in this case, it is a "he said/she said" situation. A reasonably competent attorney may determine the defendant would not make a credible witness and it would be better to attack the credibility of the prosecution witness by vigorous cross-examination. Further, in this case, as the trial court pointed out, had Sosa testified, he could be impeached with a number of prior felony convictions, including one involving the former girlfriend. Additionally, there is nothing in Sosa's proposed testimony that is so compelling that it would necessarily overcome Sosa's impeachment by prior convictions or any general deficiencies in his ability to be a good witness. For example, while claiming Doe engaged in consensual sexual relations, Sosa also admits she vomited into the towel. We suspect many jurors would have difficulty believing that Doe, having vomited as a result of orally copulating Sosa and laying down to avoid further vomiting, would have immediately thereafter willingly engaged in further oral copulation and other sexual activities.
III
Sufficiency of Evidence
Sosa contends the evidence is sufficient to support only one conviction of oral copulation. He contends the "evidence disclosed, at most, a single act of forcible oral copulation that was briefly interrupted by the fortuity (from the People's standpoint) of Doe's illness," and that there was no evidence showing that after "the 'gagging' incident, [he] applied further or additional force upon the victim, as required to support a second conviction under section 288a."
Sosa was charged with forcible oral copulation, which requires proof that an act of oral copulation was "accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 288a, subd. (c)(2).)
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237; People v. McCleod (1997) 55 Cal.App.4th 1205, 1220-1221.)
There are several flaws with Sosa's argument. First, he confuses the substantial evidence rule with rules regarding multiple punishment. For example, he asserts "[i]t is well established that a single act of intercourse or other sexual conduct results in only one punishable offense," and cites People v. Craig (1941) 17 Cal.2d 453, 455 (Craig), People v. Collins (1960) 54 Ca.2d 57, 59 (Collins) and People v. Fleming (1983) 140 Cal.App.3d 540, 545, in support. Craig involved multiple convictions based on one act of unlawful intercourse and the court held the defendant could be punished for only one offense. Fleming likewise involved a question relating to punishment, that is, whether multiple consecutive sentences could be imposed for convictions of multiple sexual offenses. Neither case involved a sufficiency of the evidence question. Collins involved an interpretation of section 261 and the adequacy of a charging document.
Second, these specific cases are particularly unhelpful to Sosa. Craig involved imposition of multiple punishment for both an offense and a lesser included offense. Here, there is no issue as to a lesser included offense. Collins involved the adequacy of a charging document, an issue not arising here. Fleming not only involved a different issue — consecutive sentences for multiple sexual offenses under section 667.6, subdivision (d) — it is also no longer good law. The Supreme Court overruled Fleming in People v. Craft (1986) 41 Cal.3d 554, 562 (Craft) and following the Craft decision, the Legislature rewrote the statute. (People v. Jones (2001) 25 Cal.4th 98, 104, fn. 2.).
Third, contrary to Sosa's contention, the law permits multiple convictions for multiple sexual offenses when the offense is interrupted and the defendant elects to renew his sexual attack on the victim. (People v. Harrison (1989) 48 Cal.3d 321, 324 [multiple convictions permitted for three acts of vaginal penetration when penetration was twice interrupted by the victim's struggle to get free].) "A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (People v. Perez (1979) 23 Cal.3d 545, 553.) There was no mere "fortuity" in this case for the People or anyone else due to "Doe's illness." Such fortuity would have existed had Sosa responded by realizing that Doe was not a willing partner and had immediately ceased his sexual assault. Instead, as Sosa admits the evidence shows, he hardly paused in his sexual attack and proceeded to commit several more forcible sexual offenses against her.
Fourth, Sosa's assertion that "the 'force' used to commit the offense must be substantially different from that required for the sexual act itself" is wrong. To support his argument, he relies on People v. Senior (1992) 3 Cal.App.4th 765, 774. Senior is no longer good law. Under current law, it is clear there is no such requirement for the use of force above that necessary to accomplish the act when the victim was not a child. (See People v. Griffin (2004) 33 Cal.4th 1015, 1027; People v. Guido (2005) 125 Cal.App.4th 566, 575-576.) The gravamen of forcible oral copulation is that it is committed against the will of the victim, the focus is not on the amount of force used to commit the act. (People v. Guido, supra, 125 Cal.App.4th at pp. 575-576.)
Fifth, it is not necessary to use force to commit the offense. Forcible oral copulation may be accomplished by the use of "violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . ." (§ 288a, subd. (c)(2).) In this case, Sosa used duress and threats to harm Doe's cousin to obtain Doe's submission, and that conduct did not disappear in the few minutes between the first and second acts of oral copulation; it was present throughout the entire sexual assault.
There was substantial evidence supporting the jury's conviction of two forcible oral copulations.
IV
Upper Term Sentence
The court imposed an upper term sentence of eight years for one count of forcible oral copulation, a concurrent six-year middle term for the rape, a concurrent six-year middle term for the other count of oral copulation, and a concurrent three-year middle term for the assault with a deadly weapon. For the other count of rape with true findings that the rape occurred during the course of a kidnapping that substantially increased the risk of harm to the victim, the court imposed a term of 25 years to life. The court imposed the upper term for the kidnapping count but stayed the sentence pursuant to section 654, noting that "the conduct is addressed by the 667.61 [subdivisions] (a) through (d) allegation and the Court feels it's not appropriate to sentence twice for that conduct." The court also stayed the remaining enhancements.
In imposing the upper term sentence for the oral copulation count, the court noted Sosa had been unsuccessful on probation, had a misdemeanor conviction for false identification to a police officer, had a conviction for assault with a deadly weapon, and had a criminal record of increasing seriousness. The court did not specifically state why it imposed an upper term for the kidnapping count. We note, however, that since the kidnapping was intertwined with the other counts and the reasons stated to support the upper term for the forcible oral copulation count were also applicable to the kidnapping count, it appears the court relied on the same reasons for the imposition of the upper term on the kidnapping count.
At the time Sosa was sentenced, California's Determinate Sentencing Law (DSL), specified three terms of imprisonment for most offenses and specified that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Former § 1170, subd. (b).) The sentencing court determined the facts for these sentencing choices by a preponderance of the evidence standard. (Former § 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).)
The California Legislature amended California's sentencing law by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2.) Unless otherwise specified, our references to section 1170 are to the statute as it read prior to the amendment.
In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court, in reviewing the state of Washington's determinate sentencing scheme, held a sentence could not be imposed by a court beyond "the statutory maximum" based on facts neither admitted by the defendant nor found true by a jury using a reasonable doubt standard except for the fact of a prior conviction. (Id. at pp. 301, 303; see also Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 864, 868 (Cunningham).) Our California Supreme Court held California's DSL comported with Blakely, in part, on the basis that the DSL's upper term represented the "maximum term" that could be imposed. (People v. Black (2005) 35 Cal.4th 1238, 1253 (Black I).) The United States Supreme Court disagreed. In Cunningham the Supreme Court held the "statutory maximum" in California's DSL was the middle term and held the DSL violated the Sixth and Fourteenth Amendments by mandating that a sentencing court impose the upper term if it found the aggravating factors outweighed the mitigating factors and the aggravating factors had not been admitted by the defendant, found true by the jury using a reasonable doubt standard or did not involve the fact of a prior conviction. (Cunningham, supra, 549 U.S. at p. ___, 127 S.Ct. at p. 868).
In response to the Cunningham decision, the California Supreme Court issued Black II, in which it held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, supra, 41 Cal.4th at p. 813.) Thus, under Black II, the existence of a single aggravating factor is sufficient to make the defendant eligible for the upper term: "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.' " (Ibid.) In Black II, the court recognized that the fact prior convictions are numerous or of increasing seriousness is a factor that falls within "the fact of a prior conviction" exception and makes a defendant eligible for an upper term sentence. (Black II, at pp. 819-820.) The Black II court stated the exception for recidivism should not be read "too narrowly" and includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.)
While Sosa argues in his letter brief that the Black II decision was wrongly decided, he acknowledges that we are bound by that decision. He argues the invalidity of his upper term sentence to preserve the issue for further review. Sosa's upper term was based on his recidivism, that is, his poor performance on probation, the existence of prior convictions, and that his convictions were of increasing seriousness. The fact he had prior convictions clearly falls within the prior conviction exception delineated by Blakely and Cunningham. The fact he had convictions of increasing seriousness was recognized by the Black II decision as a factor falling within the fact of a prior conviction exception. Therefore, Sosa was eligible for an upper term sentence; he was no longer legally entitled to a middle term. He makes no challenge to the court's use of these factors. We conclude no Blakely or Cunningham error occurred in this case and the upper term was properly imposed.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HUFFMAN, J., O'ROURKE, J.