Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02346
HULL, J.Defendant was convicted by a jury of six counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)) and was sentenced to state prison for 18 years. He appeals, contending: (1) the trial court abused its discretion in admitting evidence of a prior, uncharged sex offense; (2) there was insufficient evidence to support one of the charges; (3) he was improperly convicted on multiple counts for a single offense; and (4) the trial court committed various sentencing errors. We agree with defendant’s second contention and reverse the conviction on that charge. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
Defendant was convicted of six counts of lewd and lascivious conduct stemming from two incidents in which he molested his 11-year-old daughter, E.S. However, there were many other such incidents, stretching back more than two years, when the victim was only eight years old. At the time of the molestations, defendant resided with E., E.’s mother and E.’s two younger siblings. Defendant was the father of the three children but was not married to E.’s mother.
The first incident occurred sometime between February 1 and March 10, 2006. At approximately 3:00 a.m., defendant entered the bedroom where E. was sleeping, woke her and directed her to follow him into the living room. Everyone else in the home was asleep. Defendant told E. to take off her clothes and, as she stood before him, he rubbed coco butter on her breasts, stomach and vaginal area. He then directed E. to lie down on the couch and to close her eyes. Defendant started touching E. and inserted his finger into her vagina. E. also felt defendant’s penis in her vagina and felt defendant moving around on top of her. Defendant eventually told E. he was done and allowed her to go back to bed.
The second incident occurred on either March 10 or 11, 2006. Defendant was in the bedroom of E.’s mother taking a nap and E. was in the living room watching television. The other family members were out of the residence visiting a relative. Defendant came into the living room and directed E. to follow him into the bedroom. He told her to take off her clothes, lie down on the bed and close her eyes. She complied. Defendant then began touching E.’s vagina and breasts with his hands. After awhile, defendant told E. he was finished and she went back into the living room to watch television.
On March 13, E. put a note on her teacher’s desk informing her that defendant had been touching her inappropriately. The teacher questioned E. about it, and E. said defendant had been touching her private areas. E. said this had happened before, when she was in the third grade. When asked why she was bringing this up now, E. said defendant had just resumed touching her and she was afraid for her younger sister.
The matter was reported to the police. E. was examined at the U.C. Davis Medical Center on March 15 and again on March 21. E. was found to have an abnormally narrow hymen, which is consistent with repeated vaginal penetration with a large object. The examination also revealed a small abrasion on the wall of E.’s vagina which had partially healed between the first and second examinations.
Also on March 15, E. was interviewed by a social worker at a sexual assault forensic examination center, or “Safe Center,” where she described the molestations in some detail.
Defendant was charged with eight counts of lewd and lascivious acts committed as follows: count one--by penile penetration of E.’s vagina sometime between February 1, 2003, and February 1, 2005; count two--by rubbing coco butter on E.’s breasts in the first incident; count three--by rubbing coco butter on E.’s vagina in the first incident; count four--by digital penetration of E.’s vagina in the first incident; count five--by penile penetration of E.’s vagina in the first incident; count six--by touching the outside of E.’s vagina in the second incident; count seven--by touching E.’s breasts in the second incident; and count eight--digital penetration of E.’s vagina in the second incident.
At trial, the prosecution presented evidence about an incident in 1996 when defendant and two others picked up a prostitute named Theresa S. and sexually assaulted her. Defendant and the others were arrested and charged, but the matter was later dropped because the prosecution was unable to locate the victim, who was homeless and failed to keep the prosecution apprised of her whereabouts.
The jury returned guilty verdicts on counts two through four and six through eight, but was unable to reach a verdict on the other two counts, which were later dismissed.
Defendant was sentenced on count two to the upper term of eight years. On the other five counts, defendant received consecutive, one-third middle terms of two years, for an aggregate sentence of 18 years.
DISCUSSION
I
Uncharged Offense Evidence
Defendant contends the trial court abused its discretion in admitting evidence of the prior, uncharged offense committed against Theresa S. He argues the prejudicial effect of the evidence far outweighed its probative value and, therefore, the evidence should have been excluded under Evidence Code section 352. (Further undesignated section references are to the Evidence Code.)
Section 1101 prohibits the admission of character evidence, including evidence of prior, uncharged offenses, when offered to prove the defendant’s commission of charged offenses. (§ 1101, subd. (a).) The purpose of this prohibition “is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as [to] promote judicial efficiency by restricting proof of extraneous crimes.” (People v. Kelley (1967) 66 Cal.2d 232, 238-239.)
An exception to the foregoing prohibition is found in section 1108, subdivision (a). It reads: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” A “sexual offense” within the meaning of this section includes a violation of Penal Code section 288. (§ 1108, subd. (d)(1)(A).)
Defendant acknowledges the applicability of section 1108, but argues the evidence should have been excluded under section 352. The latter section gives the trial court discretion to exclude otherwise admissible evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Defendant contends the uncharged offense evidence had little probative value, whereas its introduction necessitated undue consumption of time and created a substantial danger of misleading the jury and thereby causing undue prejudice.
In People v. Harris (1998) 60 Cal.App.4th 727 (Harris), we identified the following factors as relevant to the proper balance of prejudice and probative value in connection with prior uncharged sex offenses: (1) the inflammatory nature of the prior offense evidence; (2) the probability that admission of the evidence will confuse the jury; (3) the remoteness of the prior offense; (4) the consumption of time necessitated by introduction of the evidence, and (5) the probative value of the evidence. (Id. at pp. 737-740.)
In Harris, a mental health nurse was convicted of several nonviolent sex offenses committed against two women, a patient prone to hallucinations and a former patient with whom the defendant had carried on a consensual sexual relationship. The first victim testified that the defendant lifted her clothes and licked her breasts and then put his hand down her pants and rubbed her clitoris. (Harris, supra, 60 Cal.App.4th at p. 731.) The other victim testified that, on one occasion, the defendant forced himself on her, mouthing her breasts and fingering and mouthing her vagina. (Id. at p. 732.) The prosecution was permitted to present evidence that, 23 years earlier, the defendant had committed a violent sexual assault on a stranger after gaining entry to her home at night. The jurors were presented a redacted version of this prior offense which told them the victim had been beaten and the defendant had been found nearby with blood on his penis and other parts of his body. However, the jury was not told of the sexual nature of the attack, thereby provoking speculation in this regard. During argument, the prosecutor described the incident as a vicious sexual assault forming a part of a pattern of preying on helpless women. The jury was told the defendant was convicted of burglary in connection with this incident. (Id. at pp. 733-736.)
We concluded the trial court abused its discretion in admitting the evidence, finding all but one of the relevant factors supported exclusion of the evidence. In particular, we indicated the prior offense, which involved “a viciously beaten and bloody victim,” was “inflammatory in the extreme” in comparison to the charged offenses, in which the defendant “licked and fondled an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him.” (Harris, supra, 60 Cal.App.4th at p. 738.) We also found likely confusion of the jury, because it was told the defendant had been convicted of burglary rather than rape, thereby “leaving the rape victim unrevenged.” (Ibid.) We further found the prior offense remote and its probative value insignificant in that it “did little more than show defendant was a violent sex offender” and did not bolster the victim’s testimony. (Id. at p. 740; see id. pp. 739-740.) As for the latter, we explained the prior and current offenses were dissimilar such that the prior offense “was not particularly probative of the defendant’s predisposition to commit these ‘breach of trust’ sex crimes.” (Id. at p. 741; see id. at pp. 740-741.) Finally, on the one factor somewhat favoring admission, we noted testimony regarding the prior offense spanned only 25 transcript pages, although it “necessitated lengthy instructions and admonitions and occupied a good portion of the closing arguments.” (Id. at p. 739.)
Defendant contends the present matter is similar to Harris. According to defendant: “The factual similarities between this case and Harris are that the charged crimes involved a breach of trust and the ‘taking advantage’ of emotionally and physically vulnerable women in the Harris case or [defendant]’s young daughter in this case. [Citation.] The charged crimes in both cases were significantly different in nature and quality from the violent and perverse attack on a stranger in Harris or [defendant]’s perverse dealing with a prostitute in which violence was threatened. [Citation.] This Court’s conclusion in Harris that the inflammatory nature of the evidence weighed sharply in favor of exclusion would also apply in this case.” Defendant also points out that in each case, the jury was informed the defendant escaped punishment for the prior sex offense. Defendant further argues that, unlike Harris, the introduction of prior offense evidence here caused an undue consumption of time in that the testimony was four times as long as that in Harris. Finally, as to probative value, defendant argues “a rape allegation involving a heroin addicted prostitute which was dismissed when the victim did not show up for court . . . was not probative of [defendant]’s predisposition to molest his own daughter.”
“‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (People v. Karis (1988) 46 Cal.3d 612, 638.) Section 352 uses the word “prejudice” in its “‘etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’” (People v. Zapien (1993) 4 Cal.4th 929, 958.) In People v. Falsetta (1999) 21 Cal.4th 903, the California Supreme Court identified the following factors to be considered in determining whether evidence offered under section 1108 should be excluded due to the potential for undue prejudice: the “nature, relevance, and possible remoteness [of the uncharged sex offense], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, at p. 917.)
In the present matter, the prior offense was highly inflammatory. Theresa S. testified that defendant and two other men picked her up and drove her to a remote location for the purpose of performing acts of prostitution. She testified that they paid her part of the money and, after she performed sex acts on two of the men, she put her hand out and asked for the rest. However, instead of paying her, defendant tried to burn her hand with a cigarette. He also grabbed the original money back from her and told her she had been had. According to Theresa, the air in the car got violent and she tried to leave. The men refused to let her out of the car and forced her to perform further sex acts with them. They told her they would turn up the music in the car so nobody could hear her scream. At one point, defendant said “bitch, if you dog me, I’ll cap you,” “we don’t play in LA.” He also threatened to hit her. Theresa was eventually able to escape and ran for help.
There was also a substantial risk of jury confusion from admission of the evidence. The testimony of Theresa S. was followed by the testimony of one of the police officers involved in the incident. Their combined testimony covered 101 transcript pages, or nearly 15 percent of the entire trial. In addition, the officer testified that charges against defendant were dropped when the victim could not be located. Thus, there was a real danger the jury might convict defendant on the charged offenses in order to punish him for the earlier, uncharged offense.
The prior offense was also relatively remote. It occurred when defendant was only 20 years old and, although defendant did not thereafter lead a blameless life, he had only two convictions over the next 10 years, both drug-related.
Finally, the probative value of the evidence was not particularly great. The fact that defendant, in concert with two others, forced an adult prostitute to perform sex acts with them 10 years earlier, when defendant was only 20 years old and apparently high on drugs, would appear to have little bearing on his predisposition to molest his 11-year-old daughter.
On the other hand, the Legislature has determined the need for evidence of uncharged sexual offenses “is ‘critical’ given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.” (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182.) The present matter essentially turned on the credibility of the victim, the only witness other than defendant to the assaults. Defendant himself acknowledges the credibility of E. was a central issue in the case. Defendant attempted to paint a picture of himself as a concerned father who perhaps disciplined his daughter too severely and E. as a child who learned she could manipulate the situation to her benefit by making false accusations. Although there was physical evidence to support the victim’s testimony, defendant attempted to explain this away by a suggestion of masturbation. Under these circumstances, evidence that defendant committed a sexual offense on another vulnerable victim, albeit one who was an adult, might help to dispel any false aura of defendant as a typical father who was perhaps too concerned with the welfare and education of his children and to support the victim’s version of the events the way the Legislature intended in enacting section 1108.
Ultimately, we need not decide if the trial court erred in admitting evidence of the uncharged offense. Assuming error, we conclude it was harmless under the circumstances. In this regard, the issue is no longer whether introduction of the evidence was prejudicial to defendant in the sense of creating a danger that he will be prejudged by the jury. The question is whether, in fact, this occurred. In other words, the issue is whether introduction of the evidence had an impact on the outcome of the case.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (§ 354.) In assessing whether a section 352 ruling caused a miscarriage of justice, we apply the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Cudjo (1993) 6 Cal.4th 585, 611.) We therefore decide whether it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.)
The People contend any error was harmless because of the presence of physical evidence demonstrating that E. had certainly been molested by someone. We agree there was substantial medical evidence that the condition of the victim’s hymen and vagina were abnormal for a child her age and suggested that there had been repeated penetration of her vagina by a large object and penetration not long before she was examined. As noted above, E. was examined at the U.C. Davis Medical Center on March 15 and again on March 21. In addition to a narrow hymen, the examination revealed a small abrasion on the wall of E.’s vagina which had partially healed between the first and second examinations. Her condition was described as consistent with digital penetration. There was no evidence that the victim had been sexually active with others.
However, there are other reasons to conclude any evidentiary error was harmless. The primary concern with introducing evidence of uncharged offenses is that the jury will prejudge the defendant and convict him of the charged offenses because it concludes he committed the uncharged offenses. This concern is exacerbated where, as here, the defendant was never punished for the uncharged offenses.
However, in this case, it is readily apparent the jury did not do so. For one thing, defendant was not convicted of all eight counts, only six of them. The jury could not reach a verdict on the counts alleging penile penetration. Furthermore, jury deliberations continued for a full day before the jury informed the court it had reached an impasse on two counts. During deliberations, the jury asked to see a medical report, the testimony of the victim and the U.C. Davis Medical Center nurse regarding the narrowing of the victim’s hymen, and the testimony of the victim regarding the first charged incident and an incident that occurred when the victim was in the third grade. Thus, it is clear the jury was doing its job and deliberating on the charges brought in this matter, not the uncharged offense.
In addition, the victim’s description of the offenses remained relatively consistent between her Safe Room interview and her trial testimony, and her Safe Room interview occurred before it was revealed that her physical examination was consistent with her description of the molestations.
Finally, the victim’s fifth grade teacher testified that the victim had started to “open up” at school, to talk to more people and to participate in class, but that two or three weeks before revealing the molestations, about the time of the first incident on which defendant was charged, the victim “started withdrawing again.” The victim started wearing the hood of her coat up over her head and participating less in class.
Based on the totality of the evidence presented and the jury deliberations, we conclude it is not reasonably probable the outcome of the trial would have been any different if the uncharged offense evidence had not been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Defendant contends, in the alternative, that the trial court erred in refusing to sanitize the uncharged offense evidence by redacting all references to criminal conduct other than the sex crimes. However, defendant cites no legal support for this argument. A point merely raised by counsel without any argument or authority is deemed to be without foundation and requires no discussion. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Furthermore, our review of the record reveals that, while defendant raised this issue below, he did not obtain a ruling by the trial court. Where a defendant does not secure a ruling on a point, it is not preserved for appeal. (People v. Rowland (1992) 4 Cal.4th 238, 259.)
II
Sufficiency of the Evidence
On count six, defendant was charged with lewd and lascivious conduct on or between March 10 and March 11, 2006 as follows: “in [E.’s mother]’s bedroom, defendant touched the outside of victim’s bare vagina.” The verdict form signed by the jury contained the same language.
Defendant contends his conviction on count six must be reversed, because there is no evidence he touched the outside of the victim’s vagina on the indicated occasion.
Count six relates to the second molestation incident, when defendant woke up from a nap, came into the living room, and directed the victim to follow him into the bedroom. There, he told her to take off her clothes, lie down on the bed and close her eyes. He then touched her vagina and breasts. The victim testified as follows:
“Q And then what happened?
“A And then he just started touching me.
“Q Okay. Can you tell us where he touched you?
“A Um, in my private area--area.
“Q Okay. Where is your private area?
“A On my body.
“Q Okay. Where on your body is your private area?
“A In between my thighs.
“Q Do you have--is there a name for that?
“A Yes.
“Q What’s the name?
“A A vagina.
“Q A vagina.
“Okay. Can you tell us what part of his body--you said that he was touching you on your vagina and you called it your private area.
“Can you tell us what part of his body is touching your private area?
“A His hands.
“Q Okay. Can you tell us whether or not he’s touching the inside, the outside of your vagina; do you remember?
“A The inside.
“Q Okay. And did you feel him touch you anywhere else on your body other than your vagina?
“A No.”
Later, the prosecutor continued:
“Can you tell us what happened after you felt him touch the inside of your vagina?
“A He just kept doing it over and over again.
“Q Okay.
“A And then
“Q Let me ask you another question about that.
“Um, did you feel him touch the outside of your vagina?
“A No.
“Okay. Now, um, did you feel him touch any other part of your body other than your vagina?
“A Oh, yeah. My breasts.”
The victim gave a similar description in her Safe Room interview four or five days after the second incident. When asked if defendant touched the outside or inside of her vagina on this occasion, E. said: “I think it was the inside.”
The People contend there is substantial evidence to support defendant’s conviction on count six when the victim’s testimony is viewed as a whole. The People argue that, notwithstanding the victim’s testimony that she was touched on the inside of her vagina but not the outside, the victim testified that defendant rubbed coco butter in her vagina and on her breasts approximately five times when she was in the fifth grade. According to the People: “[W]hen being asked about the last incident of sexual abuse the victim did testify that she did not feel [defendant] touch the outside of her vagina. [Citation.] But the victim also testified that there were about five times in the fifth grade [defendant] rubbed cocoa [sic] butter in her vagina. [Citation.] From this evidence the jury could reasonably conclude that [defendant] rubbed cocoa [sic] butter on the victim’s vagina on or about March 10 or 11, 2006.” (Italics added.)
The People make two leaps in logic here that are not supported by the evidence. First, the People assert that, because defendant rubbed coco butter “in” the victim’s vagina, he also rubbed it “on” her vagina. Technically speaking, this is true, inasmuch as the vagina itself is inside the outer structures of the female genitalia. To rub “in” the vagina necessarily means to rub “on” the vaginal wall. However, it is clear from the record the victim used the word “vagina” to refer to her pubic area in general. When the People suggest the jury can conclude from the victim’s testimony that defendant rubbed coco butter “on” her vagina, they are apparently arguing that the victim’s testimony about touching “in” the vagina can be read to mean touching the area outside the vagina.
The People also assume that when the victim testified defendant rubbed coco butter on the victim’s vagina approximately five times when she was in the fifth grade, this necessarily includes the incident on March 10 or 11. However, there is no basis for this assumption. The victim testified about two specific incidents when she was in the fifth grade. Only in connection with the earlier incident did she mention that coco butter was used.
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
The victim testified that, during the March 10 or 11 incident, defendant touched the inside but not the outside of her vagina. She stated the same thing in her Safe Room interview. She did not testify that defendant rubbed coco butter on her during this incident. Of course, common sense would suggest that if defendant touched the victim’s vagina, he also touched the area outside her vagina en route. However, in the face of direct and clear testimony by the victim to the contrary, such assumption is not warranted. Therefore, substantial evidence does not support defendant’s conviction on count six.
III
Separate Offenses for Touching Inside and Outside Vagina
Defendant contends his convictions on counts three and six must be reversed, because the conduct supporting those counts did not amount to separate offenses. However, inasmuch as we have concluded defendant’s conviction on count six must be reversed for lack of substantial evidence, we need not consider that count further.
Count three was part of the cluster of counts alleged in connection with the incident occurring in the living room of the home some time between February 1 and March 10, 2006. Count two alleged defendant “rubbed coco butter on victim’s bare breasts with his hand”; count three alleged he “rubbed coco butter on victim’s bare vagina with his hand”; count four alleged he “put his finger(s) inside victim’s vagina”; and count five alleged his “penis penetrated victim’s vagina.”
Defendant contends he cannot be convicted of both touching the outside of the victim’s vagina with his hand and putting his finger inside her vagina, because the first act was merely incidental to the second. He argues these acts should be viewed as one indivisible offense, “because there is insufficient evidence that [he] independently sought sexual gratification when he was merely touching a part of the body enroute [sic] to another area.”
In People v. Harrison (1989) 48 Cal.3d 321, the defendant was convicted of three counts of sexual penetration with a foreign object (Pen. Code, § 289) in connection with a single incident when he inserted his finger in the victim’s vagina three separate times. Each time, the defendant’s finger was inside the vagina for several seconds before the victim pulled away. (Harrison, at pp. 325-326.) Despite the temporal proximity of these separate acts, the court concluded three separate convictions were permitted, because "a new and separate violation of [Penal Code] section 289 is ‘completed’ each time a new and separate ‘penetration, however slight’ occurs.” (Id. at p. 329.)
In People v. Scott (1994) 9 Cal.4th 331, the high court concluded the same applies to Penal Code section 288. Rejecting the defendant’s argument that only one violation of Penal Code section 288 is established where a defendant touches different areas of the victim’s body during a single course of conduct, the court said: "Under defendant’s approach, the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. In light of the special protection afforded underage victims, we cannot conceive that the Legislature intended this result.” (Scott, at p. 347.)
In People v. Jimenez (2002) 99 Cal.App.4th 450 (Jimenez), the defendant committed various sexual offenses on the victim over an extended period of time and was convicted of multiple violations of Penal Code section 288 and other offenses. Several of the molestation convictions were based on a single incident when the defendant fondled the victim’s breasts, buttocks, vagina and thigh. (Jimenez, at pp. 452-453, 456.) We affirmed the multiple convictions, because the evidence demonstrated separate touching of different areas of the victim’s body. We explained: “Where a defendant fondles a portion of the victim’s body with the requisite intent, a violation of [Penal Code] section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim’s body and then moves on to fondle a different area, one offense has ceased and another has begun. There is no requirement that the two be separated by a hiatus, or period of reflection.” (Id. at p. 456.)
In so concluding, we drew a distinction between the circumstances presented in that case and a situation where the defendant moves his hand up a victim’s leg, touching several identifiable body parts along the way, or touches the area outside the victim’s vagina incident to digital penetration: “We do not consider here whether fondling of each and every separate portion of a victim’s body will always amount to multiple offenses; we are not called upon to reach that question. Defendant was charged with having fondled the victim's breasts, buttocks, vagina and thigh. The evidence established a separate fondling of each indicated body part and not merely a touching en route to another area. This suffices for separate convictions. [¶] Nor does this matter present the question whether, for example, a separate touching of a victim’s vagina incident to digital penetration of that same body part amounts to a separate offense. Here, defendant did not merely touch D.’s vagina; he rubbed the area around it, both over and under D.’s clothes. Under the circumstances presented, defendant was subject to multiple convictions . . . .” (Jimenez, supra, 99 Cal.App.4th at p. 456.)
Defendant contends the present matter falls within the category of cases not decided in Jimenez. He argues the present matter does not involve separate touching of different areas of the victim’s body but the touching of one area en route to another. According to defendant, touching the outside of the victim’s vagina was merely incident to the digital penetration.
Defendant misreads the evidence. E. testified that after defendant brought her into the living room he directed her to take off her clothes and to lie down. He then began touching her vagina with his hands and his penis. She also testified this was the same incident she described in her Safe Room interview, when defendant put coco butter on her vagina, stomach and breasts. In her Safe Room interview, E. indicated defendant put lotion on her after she took off her clothes but before he directed her to lie on the couch. He put coco butter on both the outside and the inside of her vagina and on her breasts. After that, E. got on the couch and defendant started touching her again.
As noted earlier, we review the record in the light most favorable to the judgment below to determine whether it contains substantial evidence on which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In this regard, “‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (Id. at p. 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.)
Based on E.’s trial testimony and Safe Room interview, a reasonable jury could conclude defendant rubbed coco butter on the victim’s vagina after she took off her clothes but before she moved to the couch. A reasonable jury could also conclude that, after the victim moved to the couch, defendant digitally penetrated her vagina. Thus, we have two separate touchings and two separate offenses, and defendant was properly convicted on count three.
IV
Upper Term Sentence
Defendant contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing the upper term on count two based on facts not submitted to the jury and proved beyond a reasonable doubt.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) In Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the Supreme Court applied Apprendi to California’s determinate sentencing law (DSL) and held that by assigning to the trial judge the authority to find the facts that expose a defendant to an upper term sentence, the DSL violates the defendant’s Sixth and Fourteenth Amendment rights. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)
In the present matter, the trial court cited the following reasons for choosing the upper term: (1) defendant’s prior convictions as an adult are numerous and of increasing seriousness; (2) the manner in which the crimes were committed demonstrates planning; and (3) defendant took advantage of a position of trust. The court found no mitigating factors.
Following Cunningham,the California Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black), concluded “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Here, the trial court relied on defendant’s prior convictions. This recidivism factor alone sufficed to render him eligible for the upper term. (Black, supra, 41 Cal.4that p. 816.) Once the court has found at least one recidivism factor rendering a defendant eligible for the upper term, the consideration of other aggravating factors does not implicate Cunningham. (Black, at p. 815.)
Defendant argues Black is inconsistent with the Sixth Amendment but acknowledges we are bound to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He raises the issue only to preserve his right to federal review. In light of Black, we conclude imposition of the upper term based on defendant’s prior convictions did not violate his Sixth Amendment rights.
V
Consecutive Sentences
The trial court imposed consecutive sentences on each count because they “involved separate acts of violence.” The court further explained defendant had an opportunity to reflect on his actions and to stop before each offense but failed to do so.
Defendant contends the court applied the wrong standard in determining to impose consecutive sentences and, therefore, abused its discretion. He points out that the crime of which he was convicted, lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (a)), is not a forcible sex crime within the meaning of Penal Code section 667.6, subdivision (d). According to defendant, it is only pursuant to this latter section that a sentencing court considers whether the defendant “had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.” (Pen. Code, § 667.6, subd. (d).)
The People contend defendant failed to object to the imposition of consecutive sentences and, consequently, has forfeited this contention on appeal. Although defendant requested that the court run some of the counts concurrently, he did not object to the court’s statement of reasons for consecutive sentencing. Nevertheless, in light of defendant’s alternate claim that he received ineffective assistance of counsel by virtue of counsel’s failure to object, we shall consider his contention on appeal.
On the merits, the People argue there was sufficient evidence from which the court could conclude, as it did, that the crimes involved separate acts of violence. The People point to evidence in the record of defendant’s severe discipline and the victim’s fear that she would get in trouble with defendant if she did not comply with his demands. According to the People, defendant “created an environment predominated by violence and control making the victim powerless to say ‘no’ or resist because of her fear of [him].”
We agree. The primary reason cited by the trial court for imposing consecutive sentences was that each offense “involved separate acts of violence.” One of the criteria affecting concurrent or consecutive sentencing is whether the crimes “involved separate acts of violence or threats of violence.” (Cal. Rules of Court, rule 4.425(a)(2).) Here, despite the fact defendant was charged with non-forcible lewd and lascivious conduct under Penal Code section 288, subdivision (a), the evidence established that defendant created such an atmosphere of violence, even if well-intentioned, that it was reasonable for the victim to fear any failure to comply with his demands would result in severe punishment. Thus, the crimes involved separate threats of violence.
As for the trial court’s mention of the fact defendant had an opportunity to reflect between each offense, this is not listed in the rules as a basis for imposing consecutive sentences. (See Cal. Rules of Court, rule 4.425.) However, as stated in rule 4.408(a) of the California Rules of Court: “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made.” In our view, the fact that defendant had an opportunity to reflect on what he was doing and desist yet decided to proceed with his assaultive behavior is reasonably related to the decision whether to impose consecutive sentences.
Defendant nevertheless contends there is no evidence to support a consecutive term on count three, because the touching outside E.’s vagina was incidental to the digital penetration of her vagina in the same episode, as charged in count four. However, as stated in the preceding section, the record does not support defendant’s assertion that he touched the outside of the victim’s vagina en route to penetrating her vagina.
VI
Penal Code Section 654Defendant contends his sentence on count three must be stayed under Penal Code section 654 in light of the sentence imposed on count four.
Penal Code section 654, subdivision (a) reads in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .” Although this section speaks in terms of an “act or omission,” it has been interpreted to include situations in which several offenses are committed during a single course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The key inquiry is whether the objective and intent attending more than one offense committed during a continuous course of conduct was the same. (People v. Brown (1991) 234 Cal.App.3d 918, 933.)
The question whether a defendant entertained multiple criminal objectives is one of fact for the trial court. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) “A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Where several sex offenses are committed in the same incident, it is not enough to say the defendant harbored a single objective--sexual gratification. Such an objective “is much too broad and amorphous to determine the applicability of [Penal Code] section 654.” (People v. Perez (1979) 23 Cal.3d 545, 552.) In People v. Bright (1991) 227 Cal.App.3d 105, the court upheld multiple punishment of lewd acts and other sexual offenses committed during a single incident, where none of the separate acts was “necessary for or incident to” the others. (Id. at p. 110.)
Here, as we have already concluded, touching the outside of E.’s vagina as alleged in count three was not necessary for or incident to the digital penetration alleged in count four. Each offense was separate and compounded the outrage visited upon E. Therefore, substantial evidence supports the trial court’s implied determination that defendant entertained multiple objectives in connection with counts three and four.
DISPOSITION
The conviction on count six is reversed. All other convictions are affirmed. The sentence is modified to eliminate the consecutive term imposed on count six. The trial court is directed to amend the abstract of judgment to reflect the foregoing and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur MORRISON Acting P.J., BUTZ, J.