Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F00199
A jury convicted defendant Phillip Michael Tafoya of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2); hereafter, undesignated section references are to the Penal Code), one count of kidnapping (§ 207, subd. (a)), one count of digital penetration (§ 289, subd. (g)), three counts of false imprisonment (§ 236), four counts of rape by threat of authority (§ 261, subd. (a)(7)), and one count of petty theft (§ 484, subd. (a)). Defendant was sentenced to a prison term of 47 years eight months to life.
On appeal, defendant contends: (1) his conviction for rape by threat of authority against Krystal L. (count nineteen) was not based on sufficient evidence; (2) his convictions for felony false imprisonment were not based on sufficient evidence; and (3) the trial court erred in sentencing him to two consecutive terms of 15 years to life under section 667.61. We will affirm the judgment but ensure the correction of two clerical errors in the abstract of judgment.
Defendant’s convictions arose out of several incidents involving five different women, four of whom admitted to having been working as prostitutes when defendant raped them. We will set out the pertinent facts as we address each issue.
Discussion
1. Rape by Threat of Authority
Defendant’s first contention is that his conviction for rape by threat of authority against Krystal L. (count nineteen) was not supported by substantial evidence. Defendant argues the evidence was insufficient to show that Krystal reasonably believed he was a police officer. We disagree.
In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) The record must contain evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Ibid.) Reversal is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” (People v. Redmond (1969) 71 Cal.2d 745, 755.) The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)
As to the crime of rape by threat of authority, the jury was correctly instructed here that the prosecution must prove: (1) a male and female engaged in an act of sexual intercourse; (2) the two persons were not married to each other at the time of the act; (3) the act was against the will of the alleged victim; (4) the act was accomplished by threatening to use the authority of a public official to incarcerate or arrest the alleged victim; and (5) the alleged victim had a reasonable belief that the perpetrator was a public official. (§ 261, subd. (a)(7); CALJIC No. 10.04.) “Reasonable” means “‘“what an average person of average intelligence would have known under the circumstances.”’” (People v. Rodriguez (1986) 42 Cal.3d 730, 782, fn. 19.)
Krystal L. testified as follows. She came into contact with defendant in 2005 at a convenience store in Sacramento. At that time, she was a prostitute, and had been arrested approximately 24 times. Krystal reached an agreement with defendant for $200 for an “overnight.” After they reached the agreement, Krystal got into defendant’s car and defendant began driving toward the downtown area.
Defendant circled the police station and then stopped at the back of the station. Defendant pulled out a badge attached to a necklace and told Krystal, “‘[W]e could do it the easy way or the hard way. It’s up to you.’” Defendant added, “‘Don’t make me get violent with you[.]’” At some point, Krystal saw that defendant had handcuffs. Krystal asked defendant where his partner was, but received no response. She eventually agreed to cooperate because she had a warrant out for her arrest and she was afraid she would be arrested.
Defendant told Krystal that he was “military police” and he drove her to what he called “military apartments.” This strange behavior made Krystal think that defendant could be “some crazy person”; she thought he was a police officer but she also had some doubt. After they went through the apartment gates and parked, defendant told Krystal to “‘[g]et in the back seat’” and take her pants off. Krystal did what she was told, the two had sexual intercourse, and defendant did not pay. Defendant then dropped Krystal off at the convenience store where he had first picked her up.
Krystal did not report the incident until she was arrested and placed in a police van with two other female prostitutes who were talking about being raped and describing the perpetrator. Krystal told the two that the perpetrator they were describing sounded like the man who had raped her, and then she insisted to the arresting officer that the man who raped her was a police officer.
Defendant argues that Krystal did not actually believe that defendant was a police officer at the moment he raped her. On direct examination, however, Krystal testified that she believed defendant was a police officer at that point. The exchange between the prosecutor and Krystal was as follows:
“Q. Did you feel like you couldn’t say no to him once he showed you his badge?
“A. Well, I had warrants and I -- and if he was police I didn’t want to go to jail.
“Q. And at that time you thought it was the police?
“A. Yeah, I did.”
Krystal’s testimony about statements she made while being held in the police van with the two other female prostitutes provides further support for her belief that defendant was a police officer:
“Q. Okay. So -- and did you tell law enforcement [at] that time, I know you don’t consider it reporting it, but did you mention [it] to them at that time?
“A. Well, I was talkin’ to the girls about it, yeah, and she was, the officer said, because we thought he was a policeman, and we were arguing about it back and forth. She [the officer] said he wasn’t. I . . . said he was, and she said he wasn’t. I said he was.”
As defendant points out, Krystal expressed some doubt about her belief on cross-examination:
“Q. Do police officers normally drive you to military barracks or military housing?
“A. No. So I figured -- can I? I figured that, um, in my head I didn’t let him know, but I didn’t know, he could be, um, some crazy person, you know. [¶] So I just decided to do whatever he said, you know what I mean, and get it over with and get away from him.
“Q. Okay. Because you didn’t actually believe that the person you encountered that night was a police officer, isn’t that right?
“A. I did believe, and then I didn’t, I didn’t know what to believe. I just know what I -- I just know that, um, I just did whatever so I could get out of there, that’s it and that’s all.”
Viewing the evidence as a whole, we conclude that a reasonable juror could have found, beyond a reasonable doubt, that Krystal actually believed defendant was a police officer at the moment he raped her. Krystal stated on direct examination that she believed defendant was a police officer when she agreed to cooperate. Even after a police officer told Krystal that the man who raped her was not a police officer, she continued to insist that he was. It would have been reasonable for the jury to give more credence to Krystal’s more time-focused statements on direct examination than her statements on cross-examination, especially since the direct statements were strengthened by her later insistence that the man who raped her was a police officer. Based on the record, we find sufficient evidence to support the jury’s finding that Krystal actually believed defendant was a police officer at the time of the rape.
Defendant alternatively argues that if Krystal did actually believe defendant was a police officer, her belief was not reasonable given the circumstances. We disagree.
Defendant drove Krystal to the police station, stopped at the back of the station and flashed his badge. He told her that he was “military police,” and she observed handcuffs in his possession. In light of these circumstances, Krystal could reasonably have believed he was a police officer.
We conclude there was sufficient evidence to support defendant’s conviction for rape by threat of authority against Krystal L. (count nineteen).
2. Felony False Imprisonment
Defendant contends the evidence was insufficient to show the element of menace for his felony false imprisonment convictions involving Stephanie J. (count thirteen) and Tricia S. (count eight). We disagree.
As we stated previously, in assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment and ask whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 576.)
As the jury was correctly instructed, the elements of menace-based false imprisonment are: (1) a person intentionally and unlawfully restrained, confined, or detained another person, compelling her to stay or go somewhere; (2) the restrained person did not consent to the restraint, confinement, or detention; and (3) the restraint, confinement, or detention was accomplished by menace. (§§ 236-237; CALJIC No. 9.60.) As the jury was also correctly instructed, “menace” means a threat of harm express or implied by word or act. (People v. Brandon (2006) 145 Cal.App.4th 1002, 1032; People v. Bamba (1997) 58 Cal.App.4th 1113, 1123; People v. Babich (1993) 14 Cal.App.4th 801, 806; CALJIC No. 9.60.) A false imprisonment effectuated by menace is a felony. (§ 237, subd. (a).)
In People v. Matian (1995) 35 Cal.App.4th 480, the Court of Appeal observed that cases upholding convictions for felony false imprisonment by menace have generally fallen into two categories: those in which a deadly weapon was used or those in which a verbal threat was uttered. (Matian, supra, 35 Cal.App.4th at pp. 485-486.)
We now turn to the two challenged felony false imprisonment convictions.
Defendant concedes there was sufficient evidence to support his conviction for felony false imprisonment of Krystal L. (count seventeen). We agree. Defendant’s verbal threat to Krystal, “Don’t make me get violent with you,” is an express threat of harm sufficient to support this menace-based felony false imprisonment conviction.
Stephanie J.
Stephanie J. met defendant when he approached her while she was working as a prostitute in Sacramento. Stephanie got into defendant’s car and they made an agreement of money for sex. Defendant drove downtown toward the jail. When Stephanie asked if they were going to the jail, defendant replied that she was going to jail because she was under arrest for prostitution. Defendant produced a badge in a flip wallet with his identification on the opposite side. Then defendant asked Stephanie what she would be willing to do to not go to jail. Stephanie realized that defendant was referring to a sexual arrangement in exchange for his agreement not to arrest her. They eventually ended up at her house, where they had sexual intercourse.
On these facts, we conclude there is sufficient evidence to show menace. Defendant drove Stephanie to the jail, flashed a badge, and told her she was under arrest for prostitution. Defendant used this false display of authority and threat of arrest to detain Stephanie and force her to have sex with him. Stephanie agreed to do what defendant asked only after he threatened to arrest her for prostitution. The fact that an arrest would be justified (from Stephanie’s perspective) does not make the threatened harm to her any less significant; if the threat were carried out, she would lose, at least temporarily, her freedom and her livelihood. Defendant threatened to harm Stephanie by arresting her, and he used that threat to make Stephanie go somewhere and do something that she did not want to do. Under these circumstances, a threat to arrest constitutes “menace” under section 237, namely, a threat of harm expressed through word and act.
Tricia S.
Defendant first met Tricia S. when he picked her up on Del Paso Boulevard in Sacramento. When Tricia got into defendant’s car, he flashed a badge and told her that he would take her to jail if she did not have sex with him. Tricia agreed to have sex with defendant because she believed he would take her to jail.
Several weeks after this first incident, Tricia was picked up by another man and they drove to his apartment. As they were about to enter the man’s apartment, defendant drove up and skidded his car to a stop. Tricia told her “date” that she knew “this guy” and that he was a cop. Defendant ran up to where Tricia and her “date” were standing, flashed a badge, and said, “‘Sacramento Police Department.’” Defendant walked with them into the apartment and forced the “date” to put his hands behind his neck while he patted him down. Defendant told Tricia that the police department was investigating her “date” for kidnapping women and keeping them tied up in his apartment. He also told her that he would give her a ride back to Del Paso Heights, and she agreed to go with him because she thought she would be safer with a police officer than with the other man. After they got into his car, defendant once again threatened to arrest Tricia if she did not have sex with him, and she submitted to his threat.
On more than one occasion, then, defendant used false authority to threaten to arrest Tricia if she would not have sex with him. Defendant used these threats to force Tricia to remain in his car and engage in sex. The threats to arrest Tricia constituted sufficient evidence from which a reasonable juror could have found “menace” (i.e., a threat of harm) under section 237.
In sum, as to Stephanie and Tricia, defendant, while believably posing as a police officer, threatened to arrest the two women for prostitution. If the two women had been arrested, they would have lost, at least temporarily, their freedom and their livelihood. We hold that a threat of arrest by one apparently able to effectuate an arrest, even if the arrest is justifiable (from the victim’s perspective), constitutes a “threat of harm” which satisfies the “menace” element of felony false imprisonment. (§ 237, subd. (a).)
3. Sentencing Under Section 667.61
Defendant’s final contention is that the trial court violated the plain language of the “One Strike” law contained in section 667.61, subdivision (e)(5), when it imposed separate sentences of 15 years to life for counts two (forcible rape against Kristie R.) and six (forcible rape against Samantha C.). (§ 261, subd. (a)(2).) The Attorney General counters that the plain language of section 667.61, subdivision (e)(5), authorizes these two separate sentences. We agree with the Attorney General.
Issues of statutory interpretation are questions of law that we review de novo. (See Burden v. Snowden (1992) 2 Cal.4th 556, 562; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) The fundamental goal of statutory interpretation is to ascertain the intent of the Legislature. (Burden, supra, 2 Cal.4th at p. 562; Kimmel v. Goland (1990) 51 Cal.3d 202, 208.) To ascertain legislative intent, we start with the language of the statute. (Kimmel, supra, 51 Cal.3d at pp. 208-209.) If the language is plain and clear, there is no need for judicial construction; we simply apply the language. (West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 850.)
The One Strike law of section 667.61 provides for, among other things, a sentence of 15 years to life for a person convicted of a specified sexual offense under one of the specified aggravating circumstances contained in the statute. (§ 667.61, subds. (b), (c), (e).) The specific offense involved in the present case is rape by force, violence, or duress. (§ 667.61, subd. (c)(1), see § 261, subd. (a)(2).) The trial court sentenced defendant based on the aggravating circumstance contained in section 667.61, subdivision (e)(5): “The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) [which includes forcible rape, § 261, subd. (a)(2)] against more than one victim.” Defendant received two sentences of 15 years to life, one for each count of forcible rape, because there were two forcible rape victims. Defendant contends the trial court violated the plain language of the statute when it sentenced him to these two terms.
We find that the plain language of the statute supports the trial court’s imposition of these two life sentences. At least two appellate decisions have adopted this view. (See People v. Murphy (1998) 65 Cal.App.4th 35, 40-41 (Murphy I); People v. DeSimone (1998) 62 Cal.App.4th 693, 698, 699 (DeSimone).) The California Supreme Court, in People v. Murphy (2001) 25 Cal.4th 136, 153 (Murphy II), cited Murphy I and DeSimone for the proposition that section 667.61, subdivision (e)(5), authorizes a separate life term for each victim, but did not express its opinion as to the correctness of those cases. Most recently, in People v. Wutzke (2002) 28 Cal.4th 923, 930-931, the Supreme Court noted that Murphy II and DeSimone held that persons convicted of sex crimes against multiple victims are among the most dangerous, and the One Strike law authorizes imposition of a separate life sentence for each victim. Defendant does not advance any arguments that persuade us to ignore the plain language of the statute.
Defendant argues that he only qualified for a single sentence of 15 years to life because he committed a specified offense and a single specified aggravating circumstance. Defendant claims that the statute does not authorize a second such sentence when there is a second victim because the second victim is what triggers the 15-year-to-life term. Defendant further contends that a person who qualifies for the One Strike law under section 667.61, subdivision (e)(5), is treated more harshly than a person who qualifies under one of the other specified aggravating circumstances in subdivision (e), because a person qualifying under subdivision (e)(5) will always receive a minimum sentence of 30 years to life.
However, we cannot say that any harsher punishment envisioned by subdivision (e)(5) of section 667.61 is contrary to the Legislature’s intent. The Legislature could reasonably have concluded that offenders who commit violent sexual offenses against multiple victims are among the most dangerous offenders, and are deserving of more severe punishment. (See Murphy I, supra, 65 Cal.App.4th at p. 41; DeSimone, supra, 62 Cal.App.4th at p. 698.)
The express limitations contained in section 667.61, former subdivision (g) (seecurrent subdivision (i)) provide further support for our reading of subdivision (e)(5). Former subdivision (g) (in effect at the time of defendant’s offenses) covered the topic of multiple offenses: it limited the number of life terms for multiple offenses committed against one victim on a single occasion; and it mandated one separate life term for each multiple victim on a single occasion. (§ 667.61, former subd. (g) (see current subdivision (i)); see Murphy I, supra, 65 Cal.App.4th at pp. 40-41; DeSimone, supra, 62 Cal.App.4th at pp. 698-700.) Thus, former subdivision (g) dealt only with multiple offenses against a single victim on a single occasion, and multiple victims on a single occasion. It did not place any limits on the imposition of consecutive life terms for multiple victims on separate occasions, which is the situation in the instant case, and indeed it mandated a separate life term for each multiple victim on a single occasion.
The language of section 667.61, subdivision (e)(5), is clear on its face. The statute requires the court to impose a single sentence of 15 years to life for each offense under subdivision (c) when the offense is accompanied by one of the aggravating circumstances under subdivision (e). One of the listed aggravating circumstances is that the defendant was “convicted in the present case . . . of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).)
In the instant case, defendant was convicted of forcible rape against Kristie R. (count two) and forcible rape against Samantha C. (count six). The trial court imposed one term of 15 years to life for the rape of Kristie R. because defendant was convicted of “an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).) Likewise, the court imposed another term of 15 years to life for the rape of Samantha C., because defendant was convicted of “an offense specified in subdivision (c) against more than one victim.” (Ibid.)
We conclude that the plain language of the statute supports the trial court’s imposition of two 15-year-to-life terms.
We note that the abstract of judgment incorrectly specifies that these two terms of 15 years to life are for life without the possibility of parole; they are actually for life with the possibility of parole. (Murphy I, supra, 65 Cal.App.4th at p. 39.) We will order the abstract of judgment corrected.
Disposition
The judgment is affirmed. The trial court is directed to correct the abstract of judgment, if it has not already done so, to reflect that the two consecutive sentences of 15 years to life on counts two and six, taken together, specify: “For 30 years to life, with possibility of parole on counts two and six”; and to reflect that the sentence on count 13 for false imprisonment (Pen. Code, § 236) is for eight months instead of eight years. The trial court is also directed to send a certified copy of the corrected abstract of judgment, if it has not already done so, to the Department of Corrections and Rehabilitation.
DAVIS , Acting P.J.
We concur: HULL , J., CANTIL-SAKAUYE , J.