Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC577420
Mihara, J.
By information filed May 27, 2005, defendant Binh Cuong Tran was charged with two counts of rape (Pen. Code, § 261, subd. (a)(2); counts 1 and 5) and one count each of false imprisonment (Pen. Code, §§ 236-237; count 2), making a criminal threat (Pen. Code, § 422; count 3), and forcible oral copulation (Pen. Code, § 288a, subd. (c)(2); count 4). The information further alleged defendant personally used a deadly weapon in the commission of count 5 (§ 12022.3, subd. (a)). On January 12, 2006, a jury found defendant guilty on all counts and found the special allegation true. The trial court sentenced defendant to a total term of 24 years and 8 months in prison, comprised of a two-year term for count 2, a consecutive subordinate term of eight months for count 3, consecutive terms of six years each for counts 1, 4, and 5, and four years for use of a deadly weapon in the commission of count 5. Defendant raises several claims of error on appeal. We find no reversible error and affirm.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
Defendant met Ai Doe through mutual friends in January 2003; they began dating about a month later. At some point, Ai’s mother became aware that the teenage couple had a sexual relationship and they became engaged at her insistence. Ai ended the relationship in September 2004. Defendant was angry and “took it really bad.” Ai lived alone with her mother and despite the break-up, defendant continued to telephone Ai and to visit her mother. Ai told defendant she did not want him to visit, but she continued to talk to defendant because she pitied him and “it seemed like he needed” her.
Ai was 19 years old at the time of trial. Ai’s last name is omitted to maintain her privacy.
A. Counts 1, 2, and 3 (Rape, False Imprisonment, and Criminal Threat)
Early in the morning of October 2, 2004, defendant knocked on the window of the master bedroom of Ai’s apartment (Ai’s mother’s bedroom), where Ai was sleeping. Defendant showed Ai his bleeding wrists and told Ai he had ingested rat poison because he could not live without her. Ai was “shocked and confused” but “felt bad for him” and let him into the apartment. She called 911 to report the suicide attempt, but defendant ran away when the police arrived.
After the police left, defendant returned to speak to Ai through the bedroom window. He still seemed “very nervous and needy” and Ai eventually told him to go away. Defendant jumped the backyard fence and entered the apartment through a sliding glass door. She again told him to leave, but he said he just wanted to sit beside her and watch her sleep. She tried to fall asleep, but he put his hands on her neck and started choking her. As he did so, he repeatedly told her he was sorry. Ai struggled and managed to pull away, but defendant shoved her back on the bed. Ai yelled for help, but defendant blocked her from leaving the room, pushing her back when she neared the door.
Ai asked defendant why he was doing this to her. He told her that “[h]e can’t live without [her] and he can’t bear the sight of [her] being with someone else so he rather if [they] both die.” After pushing Ai back onto the bed, he “strangled [her] for a while.” He pulled her pants down and after additional struggling and fighting, he raped her. Ai told him numerous times she did not want to have sex and she tried to resist by biting his face, pinching his penis, and punching him. Defendant ejaculated inside Ai and when he stopped, she pulled her pants up and ran outside.
Defendant followed Ai outside, and Ai double-backed to the apartment and locked the doors. Defendant eventually left. Ai called a cousin, her best friend, and her mom, who was not sure if Ai should call the police. Ai did not call the police because defendant was an ex-boyfriend and she thought “he might have some sort of like psycho problem at that time” and that it was just “a one time thing.”
The following Monday Ai told the school nurse she had been raped. The nurse called the police and Ai told them what had happened. A day later she changed her mind about pressing charges. Defendant had apologized and Ai “felt bad, pity for him.” He continued to visit her apartment and she sometimes talked to him because he was there. They continued to attend the same school.
B. Count 4 (Forced Oral Copulation)
At the end of October 2004, defendant asked Ai to lunch. She finally agreed because she had a free hour and “he seemed really needy[.]” He had been “calm, sweet, very nice” since the earlier incident. He stopped the car in a residential neighborhood, jumped on top of Ai, and tried to pull down her pants. She was scared and told him she would do anything as long as he did not rape her. Defendant asked Ai to perform oral sex and she complied. He took a picture of her and later told police he wanted it as proof that the act was consensual. Ai was now more angry than she was scared and convinced defendant to drive her back to school. She did not report the incident to the police because she did not want defendant sent to jail.
C. Count 5 (Rape)
In early January 2005, Ai let defendant into the apartment and he joined her in the master bedroom where she was watching a movie. He wanted to get back together with her, but she told him she was not interested. He replaced the movie she was watching with a porn video. He then told her that could not “bear seeing [her] with anyone else” and that he was “going to rape [her] and make [her] pregnant” so that she could not be with anyone else.
Ai told defendant to get out, but he shoved her down and tried to have sex with her. He grabbed a pair of scissors, held them at her neck, and said that if she did not have sex with him, he would stab her. She believed he would use the scissors if she did not comply. He told Ai that he wanted to cut her face so that no one else could have her and make her pregnant so that she would have to marry him. He also threatened to burn her face with a cigarette so that “no one else would want to look at [her].” Ai tried pushing him a couple of times but was scared. Defendant eventually managed to place his penis in Ai’s vagina.
When defendant went to the restroom, Ai pulled up her pants and left the apartment by kicking out the window screen and climbing through the window. Ai ran to her neighbor’s and called her mother but did not call the police right away.
The next day, Ai went to her grandmother’s house to get out of the apartment. Defendant called the house and she hung up on him. He arrived, jumped the fence, and appeared at the back window. Ai called the police; it had gone “too far” and she did not want defendant to harm her grandmother.
Ai and defendant submitted to sexual assault examinations that day, January 4, 2005. Defendant’s semen was found on panties Ai was wearing the day before and “defendant and Ai Doe are included as possible contributors to a mixture detected on one of Ai Doe’s vaginal swabs.” The nurse who conducted the examinations observed a fresh injury on defendant’s mouth and a scratch on his neck.
D. Expert Testimony
The defense called only one witness, Dr. Amanda Gregory. Gregory, a neuropsychologist, spent over nine hours testing and interviewing defendant to evaluate his cognitive abilities. Defendant’s “full scale” or overall I.Q. score was in the “lower average” range, but his score on the verbal comprehension portion fell within the “impaired” range. Gregory explained that defendant “[has] some difficulties with grammar,” “with being able to reason with language in a sophisticated way[,]” and with “more complicated vocabulary.” She noted that defendant has particular difficulty understanding multiple sentences with complicated language. Gregory explained that when she gave defendant a series of instructions he occasionally would say “right or make some other affirmative utterance” even though it would eventually be clear that he did not understand what she was saying.
Gregory concluded that defendant’s listening comprehension in English is at the level of a typical eight-year-old and that his overall language abilities are between that of an eight-year-old and a nine-and-a-half-year-old. Gregory also concluded defendant was in the midst of a “major depression which appeared to have started after the break-up of his relationship.”
Defense counsel argued that the jury should keep defendant’s limited language abilities in mind in considering defendant’s taped interview with Sergeant Blank of the San Jose Police Department. During the interview, which was played for the jury, defendant acknowledged having sex with Ai in October 2004 and January 2005. He admitted that he choked Ai during the October incident. He also told Blank that Ai did not want to have sex during the January incident and that she bit him on the cheek, but he continued anyway. Finally, defendant appeared to admit, in response to a convoluted question, that he threatened Ai with scissors.
“BLANK[:] . . . But either way, she didn’t want to have sexual relations with you at the time, but you wanted it, and you were gonna have it. And what I’m gonna say with the scissors is, you enhanced yourself to utilize those scissors in a threatening way[.] TRAN[:] Mm hmm.
II. Discussion
A. Sufficiency of the Evidence – Count 3
Defendant first contends that there is insufficient evidence to support his conviction under Penal Code section 422 for making a criminal threat. He argues that his statement was the “eruption of suicidal depression and emotion, not an intentional threat, much less a sufficiently specific or immediate one.” We find substantial evidence in the record to support the conviction.
“Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, 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 elements of the crime] beyond a reasonable doubt.” (In re George T. (2004) 33 Cal.4th 620, 630-631 (George T.), internal quotation marks omitted.)
Section 422 prohibits the making of criminal threats and defines violators as “[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . .”
“[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated,” but “are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.” (George T., supra, 33 Cal.4th at p. 635, internal quotation marks omitted.) In determining whether an “immediate prospect of execution of the threat” exists, the trier of fact may consider the parties’ history and the circumstances surrounding the statement, including whether it is accompanied by any “threatening gestures or mannerisms[.]” (See id. at p. 637; see also In re Ryan D. (2002) 100 Cal.App.4th 854, 860 (Ryan D.).) Because the circumstances “give meaning to the actual words used[,]” “[e]ven an ambiguous statement may be a basis for a violation of section 422.” (Ryan D., at p. 860.)
Defendant told Ai “he can’t live without [her] and he can’t bear the sight of [her] being with someone else so he rather if [they] both die.” The available evidence regarding the surrounding circumstances supports the jury’s finding that defendant conveyed “an immediate prospect of execution of the threat” and that Ai reasonably feared for her own safety. The threat was made in the midst of a violent altercation between defendant and Ai. Just before making the statement, defendant choked Ai until she could barely breathe. After stating that he would rather they both die, defendant “shoved [Ai] back on the bed and strangled [her] for a while. . . .” Defendant continued to keep Ai in the bedroom against her will, and at the conclusion of the struggle, forcibly raped her. (See Ryan D., supra, 100 Cal.App.4th at p. 860 [“the actions of the accused after making the communication may serve to give meaning to it”].) Finally, Ai testified that defendant seemed serious when he made the statement and that it scared her.
Defendant’s suicidal statements and inappropriate behavior prior to the statement give additional credence to the murder/suicide threat. In the weeks after Ai broke up with defendant, he demonstrated his refusal to accept the situation by visiting the house and continuing to seek her attention. Only hours before the threat, defendant told Ai that he ingested rat poison and cut his wrists because he could not live without her. This purported suicide attempt appeared serious enough for Ai to call 911 on defendant’s behalf.
Defendant nevertheless argues that because his actions were “[p]unctuated with apologies and mixed feelings,” and because the “suicidal/homicidal ideations were never carried out[,]” his statement should not be taken as a serious threat. He characterizes it as nothing more than a “distraught response” to Ai’s questioning. Even if this is a reasonable interpretation, it is not the only one that may be drawn from the evidence presented. The jury could infer from the same “distraught” statements and attendant violent actions that defendant was so emotionally disturbed that he intended that Ai take his statement seriously. The statute does not require that the threat actually be fulfilled, or even that the defendant intend to carry it out. The statute requires only that the defendant intend the statement to be taken as a threat that causes the victim to fear for his or her safety. (See § 422; Ryan D., supra, 100 Cal.App.4th at p. 860.)
Finally, defendant argues that because Ai “could not be sure this was a specific threat to kill, this Court cannot be sure either.” Ai testified during trial that she was unsure whether she thought he would actually kill her at the time, but that she was sure he was going to hurt her in some way. In view of the entirety of the circumstances presented, this uncertainty regarding the extent of the danger does not prevent a finding that defendant conveyed “a gravity of purpose and an immediate prospect of execution of the threat” that caused Ai “reasonably to be in sustained fear for . . . her own safety . . . .” (§ 422.)
We find sufficient evidence to support defendant’s conviction for violation of Penal Code section 422.
B. Miranda Violation – Taped Interview
Defendant argues the prosecution failed to establish that he “voluntarily, knowingly, and intelligently waived his Fifth Amendment rights[.]” Thus, he contends, the trial court erred in denying his motion to exclude the statements he made in the taped interview with Sergeant Blank. We find no such error.
The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself . . . .” The police therefore have an obligation to advise a criminal suspect about his or her rights and to obtain a knowing and intelligent waiver of those rights prior to any interrogation. (Miranda v. Arizona (1966) 384 U.S. 436, 468-479 (Miranda).) The prosecution bears the burden to demonstrate by a preponderance of the evidence “that a defendant who makes a statement in the absence of counsel knowingly and intelligently has waived the privilege against self-incrimination and the right to counsel.” (People v. Peevy (1998) 17 Cal.4th 1184, 1192.) Although we independently determine whether the challenged statements were illegally obtained, “we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence.” (People v. Whitson (1998) 17 Cal.4th 229, 248 (Whitson), internal quotation marks omitted.)
Here, the question is not whether defendant was advised of his rights. The question, instead, is whether defendant understood the advisements and voluntarily, knowingly, and intelligently waived his rights. In answering this question, we consider two separate components: First, whether the waiver was “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” (Whitson, supra, 17 Cal.4th at p. 247, internal quotation marks omitted.) Second, whether the relinquishment of the right was “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Ibid., internal quotation marks omitted.) Relevant to this determination is “the crucial element of police coercion; the length of the interrogation; its location; its continuity as well as the defendant’s maturity; education; physical condition; and mental health.” (People v. Williams (1997) 16 Cal.4th 635, 660, internal quotation marks and citations omitted.)
Prior to trial, the court conducted an Evidence Code section 402 hearing in connection with defendant’s Miranda motion. Gregory testified, setting forth her assessment of defendant’s language abilities including her conclusion that defendant’s “verbal comprehension abilities [fall] in the mildly impaired range for his age.” As at trial, Gregory noted that defendant has difficulty “with comprehension and expression of more complex sentences[.]” She also observed that during the interview and testing process he often appeared to understand what she was saying, but when prompted for a response he would need to ask for clarification or simplification of the language. She noted that defendant was unable to define some of the words used in the police interview and that he told Gregory he thought “attorney” meant “translator.”
The court denied defendant’s motion to exclude his statements to Blank, finding that “defendant did understand these rights, he understood that he was talking to a policeman, that he understood his right to remain silent, and without threat or coercion gave up the right to remain silent and spoke to the officer. I find that his answers to the officer’s questions were responsive and adequate to give meaningful and thoughtful answers as he did to the officer.”
We agree with the trial court. Defendant was apprised of his rights in a straight-forward manner, appeared to understand Blank’s questions, and answered Blank’s questions appropriately. At the start of the interview, Blank informed defendant that he was “‘in custody,’ meaning, right now you’re not free to go[,]” that it would be defendant’s choice to speak with Blank, and that he had been arrested for rape but that the District Attorney might bring different charges. Blank explained that he would be reading defendant his rights and then read each one separately. After Blank advised defendant of each right, defendant stated he understood, and Blank moved on to the next advisement. Blank then asked defendant whether he wanted to talk, defendant answered affirmatively, and defendant continued to speak to Blank without objection. At other points in the interview, in contrast, defendant denied Blank’s allegations, corrected Blank’s recitation of facts, and asked Blank for clarification regarding the comment or question. Defendant’s conduct throughout the interview thus supports the conclusion that defendant understood the advisements. (See United States v. Bernard S. (9th Cir. 1986) 795 F.2d 749, 752 [concluding that even though the defendant had some difficulties with the English language, he voluntarily, knowingly, and intelligently waived his rights when they were explained to him and he stated he understood].)
Defendant’s primary authority—United States v. Garibay (9th Cir. 1998) 143 F.3d 534 (Garibay)—is distinguishable. In Garibay, the court concluded that the trial court erred in not suppressing the defendant’s inculpatory statements based, in part, on the defendant’s below-average verbal skills and language ability. (Id. at p. 539.) In that case, however, the record indicated that the defendant understood “only a few things in English[,]” his I.Q. suggested he was borderline retarded, and there was “no evidence that [the officer] individually explained each constitutional right” to the defendant before obtaining his waiver. (Id. at pp. 537-539.) In addition, “every witness at the suppression hearing testified that at [the defendant’s] request they would always communicate with him in Spanish” and several independent sources stated that they thought the defendant could speak only a few words in English. (Id. at pp. 537-538.)
In contrast, the prosecution in this case established that defendant is proficient in English. Defendant’s below-average verbal comprehension presents only part of the picture. As the trial court observed in denying the motion to exclude, in over nine hours of testing and interviewing defendant, Gregory spoke with him only in English. Defendant told Gregory he was equally comfortable with English and Vietnamese and defendant’s academic and employment activities indicate a command of conversational English. Defendant graduated from high school, where he was in mainstream classes (not English as a second language classes), and in his freshman and sophomore years he received As and Bs. Prior to his arrest, defendant attended junior college accounting and real estate classes in English and worked for a mortgage company on a commission basis. Finally, Gregory acknowledged that defendant may understand some English words in context that he is not able to define.
Despite these facts, defendant suggests that his age and lack of criminal experience make it unlikely he knowingly waived his rights. However, he was 20 years old at the time of the interview, not a particularly vulnerable age, and his lack of prior experience with law enforcement is simply one factor in the totality of the circumstances. These facts do not outweigh the evidence indicating that defendant understood his rights. (See, e.g., People v. Lewis (2001) 26 Cal.4th 334, 384 [rejecting “defendant’s contention that his young age and low intelligence precluded him from making a voluntary, knowing, and intelligent waiver” where record revealed no confusion or failure to understand during the police interview].)
Defendant also argues that Blank linked defendant telling his “‘side’ of the story” with the opportunity to get out of jail, and that this impacted the voluntariness of defendant’s waiver. To the extent this argument is related to defendant’s limited language ability, it was raised below. It is not, however, persuasive. Defendant cites no authority for the proposition that encouraging a suspect to share his or her story, in combination with the suggestion that the police might be able to aid the suspect, is tantamount to coercion or renders a waiver involuntary. Blank explained more than once that defendant was in custody, under arrest, and that it was up to the District Attorney to determine the charges against him. There is no evidence that Blank coerced or intimidated defendant, or that the location, duration, or other circumstances of the interview impacted defendant’s freedom of choice. Although defendant expressed some confusion regarding whether Ai was bringing suit against him or whether it was someone else, his statements reflect a general understanding that he was being questioned because Ai had accused him of rape and that a prison term was a possibility.
The totality of the circumstances establishes by a preponderance of the evidence that defendant understood the advisements and knowingly and intelligently waived his Fifth Amendment right. We find no error in the trial court’s admission of defendant’s recorded statements to Blank.
C. Miranda Violation –Statements to Recinos
Defendant objects to the admission of the statements he made to Officer Mario Recinos while detained outside Ai’s grandmother’s house on January 4, 2005. He contends, as he did below, that he was in custody at the time and that the statements were obtained in violation of Miranda. After an Evidence Code section 402 hearing, the trial court concluded that defendant was not in custody for purposes of Miranda at the time the statements were made because the police did not yet have probable cause to arrest. The court therefore allowed the admission of three of defendant’s statements to Recinos, which were presented to the jury as a stipulation by the parties: (1) defendant admitted he knew the complaining witness, Ai; (2) defendant initially denied having sexual relations with Ai; and (3) defendant later admitted he had sexual relations with Ai. We find no error and uphold the trial court’s ruling.
The parties agreed to admission of the additional statement that defendant was at the grandmother’s house to return Ai’s engagement ring.
“It is clear that advisement of Miranda rights is only required when a person is subjected to custodial interrogation. . . . Custody, for these purposes, means that the person has been taken into custody or otherwise deprived of his freedom in any significant way. Furthermore, in determining if a person is in custody for Miranda purposes the trial court must apply an objective legal standard and decide if a reasonable person in the suspect’s position would believe his freedom of movement was restrained to a degree normally associated with formal arrest. The test for custody does not depend on the subjective view of the interrogating officer or the person being questioned. The only relevant inquiry is how a reasonable [person] in the suspect’s shoes would have understood his [or her] situation.” (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088-1089 (Mosley), internal quotation marks and citations omitted.)
As one court recently summarized, no one factor is controlling but the following should be considered: “‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory,’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404 (Pilster).) On appeal, a reviewing court “must accept the trial court’s resolution of disputed facts and inferences,” but “must independently determine from the undisputed facts, and those properly found by the trial court, whether the . . . challenged statements were elicited from [the defendant] in violation of Miranda.” (People v. Bradford (1997) 14 Cal.4th 1005, 1033, internal quotation marks and citations omitted.)
While on patrol, Officer Recinos received notification of a possible burglary and was told that the reporting party also had mentioned a sexual assault the day before. Arriving at the house, Recinos observed defendant, who matched the suspect’s description, standing across the street. Recinos “[s]topped [his] patrol car, exited, directed [defendant’s] attention towards [him], and just talked to him.” Recinos did not draw his gun, but did place defendant in handcuffs. As he did so, Recinos explained “that there was a disturbance at a house across the street, that possibly [defendant’s] associated with it, and for his safety and for [Recinos’s] own safety [he] was going to need to put him into handcuffs.” At no point did Recinos suggest that defendant was under arrest. He did, however, converse with defendant. Recinos explained that a young lady had reported a burglary, explained that the police were investigating, and asked defendant if he was aware of the details. Upon learning that the reporting party was defendant’s girlfriend, Recinos asked follow-up questions and the conversation continued.
Recinos asked defendant if he knew why Ai would call the police, the nature of their relationship, and if she had ever called the police before. At the same time, other officers were speaking with Ai.
The “casual conversation” took place over the course of 30 minutes but was not continuous. Defendant, who was standing on the sidewalk, was in handcuffs during the entirety of the conversation. Recinos was with him the entire time, as was one additional officer who did not engage defendant in conversation. Recinos eventually received information that the sexual assault report had been confirmed and that defendant was going to be arrested. At that point, Recinos asked defendant no further questions. A different officer took custody of defendant and transported him to the station.
Several factors indicate that defendant was not in custody for purposes of Miranda. At the time of his conversation with Recinos, defendant was not under arrest, he was standing in the same spot on the sidewalk at which he was initially approached, only two officers stood nearby and only one officer questioned him, no guns were drawn, the questioning was casual and conversational, and there is no evidence that Recinos was “aggressive, confrontational, and/or accusatory.” Additionally, custody generally “does not include a temporary detention for investigation. [Citation.] Such a detention . . . allows ‘the officer . . . [to] ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.’” (People v. Clair (1992) 2 Cal.4th 629, 679 (Clair).) Here, defendant initiated the conversation and Recinos asked background questions to which defendant provided narrative answers. (Compare Pilster, supra, 138 Cal.App.4th at p. 1405 [in determining that the defendant was in custody court noted that there was no “evidence defendant volunteered to speak with the police”] with Clair, supra, 2 Cal.4th at p. 679 [observing that officer “did no more than was permitted, asking defendant who he was, whether he had identification, if he lived in the apartment, what he was doing there, and if he knew the resident or residents” in concluding that the defendant was not in custody for Miranda purposes even though he was ordered not to move at gunpoint and then questioned].)
In arguing that he was in custody at the time of his statements to Recinos, defendant stresses he was not specifically told he was not under arrest, he was in handcuffs for the entirety of the conversation, and he eventually was arrested and transported to the police station. The fact that the defendant was handcuffed is not controlling; it is merely one factor to be considered. (See, e.g., Pilster, supra,138 Cal.App.4th 1395, 1404.) A recent case noted, for example, that “brief handcuffing of a detainee would look less like a formal arrest if the interviewing officer informed the detainee the handcuffs were temporary and solely for safety purposes, officers considered the detainee only a witness in the investigation and advised the detainee he or she could decline to answer their questions.” (Ibid.) Here, defendant was specifically informed that he was being handcuffed for safety reasons and that the officers were investigating a disturbance. (Cf. id. at pp. 1405-1406 [finding that defendant was in custody where there was no evidence of “an explanation from the officers that they placed the handcuffs on him temporarily to prevent further altercations or a categorical statement that he was not under arrest”].) Although defendant was not expressly told he was not under arrest, the officer’s explanation strongly implied he was not. Likewise, although defendant was not told he could decline to answer the officer’s questions, he was told the officers were gathering information.
After considering the totality of the circumstances we do not believe that a reasonable person in defendant’s position would have believed, at the time he spoke with Recinos, that his freedom of movement was restrained to a degree normally associated with formal arrest.
Even if we were to conclude that admission of the statements to Recinos was in error, we would find it harmless. It is undisputed that defendant knew Ai and that he had a sexual relationship with her. Ai testified at trial about the couple’s sexual history and defendant admitted the extent of their relationship in his police interview. The fact that defendant (who did not testify at trial) initially denied having a sexual relationship with Ai would, at most, have a small impact on his credibility as would any inconsistency regarding why he went to the grandmother’s house. Any error in admitting defendant’s statements to Recinos was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23-24.)
D. Expert Testimony
Defendant contends the trial court erred in excluding two general categories of Gregory’s proposed testimony: (1) her opinion regarding defendant’s comprehension of the specific questions used in the police interview; and (2) the content of defendant’s responses to her questions. We find no error.
“An expert may generally base his opinion on any matter known to him, including hearsay not otherwise admissible, which may reasonably . . . be relied upon for that purpose. (Evid. Code, § 801, subd. (b); [citation].) On direct examination, the expert may explain the reasons for his [or her] opinions, including the matters he [or she] considered in forming them. However, prejudice may arise if, under the guise of reasons, the expert’s detailed explanation [brings] before the jury incompetent hearsay evidence. . . . Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his [or her] opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (People v. Montiel (1993) 5 Cal.4th 877, 918-919 (Montiel), internal quotation marks omitted.)
“[A] trial court has wide discretion to admit or exclude expert testimony. . . . An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.” (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1492, internal quotation marks omitted.)
Prior to Gregory’s trial testimony, the court in this case ruled: “In the Court’s opinion the record is absent any direct evidence that the defendant did not understand the officer’s questions. To allow an expert witness to testify that in their opinion that a person, including this defendant, did or did not understand questions would be based on speculation or conjecture. The ability to determine if a person a year previous did or did not understand a question or questions lacks any scientific foundation by Kelly-Frye standards. [¶] Any opinion of the expert witness on the issue of the defendant’s understanding or not understanding a question is excluded.” Additionally, the court held that Gregory could not “testify as to what the defendant told her in response to any questions during the interviews as these are clearly hearsay without the defendant taking the stand. So the expert may testify in her opinion that he lacks the ability, but not to any specific question or response [that] in her opinion he did not understand it.”
After Gregory’s testimony, defense counsel provided a further offer of proof regarding the proposed testimony. Counsel stated Gregory would testify, in part, that defendant “did not at the time of his interview with Sergeant Blank understand the meanings of [specific] English words. She would also testify that when she interviewed [defendant] at the jail, she asked him if he understood those words and he said he did not understand the meanings of those words.” Counsel acknowledged “that if it’s being offered for the truth of the matter it’s defendant’s statements, either way” but suggested the statements were still “admissible as part of an expert opinion[.]” The court affirmed its prior ruling.
We conclude that both prongs of the trial court’s ruling are well-supported. A statement that defendant did not, at the time of the interview, understand the precise question asked is beyond the scope of legitimate expert testimony. As the trial court noted, such an opinion would be based on speculation and conjecture. It was appropriately excluded. Defendant argues that Gregory should have been permitted to offer an opinion or explanation regarding how the vocabulary and sentence constructions used in the interview could present comprehension problems for defendant. Defendant then asserts that this could have been presented “in illustrative and conceptual fashion without offering ultimate opinions whether [defendant] actually understood particular questions in the interview.” We do not quarrel with that distinction, but observe that the court excluded only the latter ultimate opinions. If, as defendant contends, the expert failed to offer the more general opinion testimony, it was not due to an overbroad ruling.
We likewise find no error in the court’s exclusion of defendant’s interview responses as hearsay. In People v. Campos (1995) 32 Cal.App.4th 304 (Campos), the court considered the admissibility of reports the expert witness relied upon in forming her opinion. The expert, a psychiatrist, cited the reports of other medical professionals who did not testify, noting that the reports were in agreement with her diagnosis of the defendant. (Id. at p. 307.) The court held that the psychiatrist “was properly allowed to testify that she relied upon the reports in forming her own opinions[,]” but that the trial court erred “when it allowed her to reveal their content on direct examination by testifying that each prior medical evaluation agreed with her own opinion.” (Id. at p. 308.) The court explained that although experts may testify as to the bases of their opinions, this testimony “is not intended to be a channel” by which a testifying doctor can place out-of-court statements before the jury. (See id. at p. 308.) Following Campos, we conclude the trial court was correct in ruling that the expert could not refer to the content of defendant’s actual statements.
Defendant acknowledges that the court rightly excluded some of defendant’s statements to Gregory regarding his understanding of specific questions in the police interview as they would constitute “incompetent backdoor hearsay testimony.” He objects, however, to the “wholesale exclusion” of all of defendant’s responses to Gregory’s questioning. Consistent with the trial court’s ruling, however, Gregory could have stated that based on defendant’s statements, she did not believe he understood the meaning of particular words. As the prosecutor noted in response to defendant’s offer of proof, “counsel could have asked if [Gregory] asked [defendant] about certain words and whether the definition he gave was correct or not without getting into specifically what he said. But that was not what counsel asked to do or what he tried to do.”
Defendant, citing Montiel, supra, 5 Cal.4th 877, 919, argues that a limiting instruction would have been sufficient and, thus, defendant’s statements should have been admitted. We disagree. As defense counsel set forth in its offer of proof after Gregory’s testimony, the defense sought to introduce many of defendant’s statements to Gregory for their truth—that defendant did not understand specific words or questions in the interview. A limiting instruction in this context would not have made sense.
We find no error and no violation of defendant’s rights to due process, a fair trial, and to present a defense.
E. Prosecutorial Misconduct
Defendant points to two separate statements that he contends amount to prosecutorial misconduct. The first involves a comment regarding Ai’s credibility; the second, the prosecutor’s summary of the reasonable doubt standard. We conclude that neither statement rises to the level of prosecutorial misconduct.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Gray (2005) 37 Cal.4th 168, 215-216, internal quotation marks omitted.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.)
If an allegation of prosecutorial misconduct “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Carter (2005) 36 Cal.4th 1215, 1263, internal quotation marks omitted.) “In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Brown (2003) 31 Cal.4th 518, 553-554, internal quotation marks omitted.)
During closing argument in this case, the prosecutor emphasized the consistency of Ai’s statements—to the police, at the preliminary hearing, and at trial. The prosecutor continued: “When you listen to the CD [of the police interview], if you want to listen to the CD, you’ll hear Sergeant Blank state when people tell the truth they tell the truth the same way each and every way. And that’s what we have here. Ai telling the truth the same way each and every way. . . .” Defense counsel interjected with the objection that Blank did not introduce this evidence, and the court observed that “[t]he jury will decide what the facts are.”
Defendant equates the prosecutor’s statement with an inadmissible opinion on the veracity of Ai’s testimony and contends the statement amounts to misconduct. We disagree. A prosecutor’s statement that vouches for the credibility of a witness is improper. In this case, however, the prosecutor pointed to Blank’s comment as shorthand for the proposition that if a witness’s statements are consistent, the story is more likely to be truthful. The observation that Ai’s story was consistent, and thus appeared truthful, was a fair comment on the evidence presented, and not a statement of personal knowledge regarding Ai’s truthfulness. The present case therefore is distinguishable from defendant’s authorities, in which the prosecutors implied they had personal knowledge regarding a witness’s veracity. (Compare, e.g., People v. Bain (1971) 5 Cal.3d 839, 846-848 [prosecutor suggested he, as a fellow black man, would only prosecute the defendant if he believed he was guilty prior to trial, and made additional comments regarding the defendant’s fabrication of the defense story]; People v. Johnson (1981) 121 Cal.App.3d 94, 102 (Johnson) [“prosecutor told the jury that he personally believed the defense witness to be telling an ‘outright lie’”].)
Defendant also contends that the statement constituted misconduct “because the prosecutor was arguing evidence outside the (non-substantive) purpose for which it was admitted[.]” We do not believe that a jury would have understood the prosecutor’s argument to indicate that Blank’s observation regarding consistency was made with respect to Ai’s testimony. Moreover, unlike the statements discussed in defendant’s supporting authorities, the remark at issue did not refer to facts not before the jury. (Compare, e.g., Johnson, supra,121 Cal.App.3d at pp. 103-104 [misconduct where prosecutor argued that the jury should reject a witness’s testimony because he had personally investigated and determined, based on facts not known to jury, that it was a lie]; People v. Bolton (1979) 23 Cal.3d 208, 212-213 [misconduct where prosecutor “twice hinted that, but for certain rules of evidence that shielded appellant, he could show that appellant was a man with a record of prior convictions or with a propensity for wrongful acts”].) Finally, the trial court reminded the jury that it was its province to determine the facts of the case, which includes whether Ai was consistent and truthful. In these circumstances, we conclude it is unlikely that the jury would have construed the prosecutor’s remarks regarding truth and consistency in an objectionable fashion.
Defendant next contends that the prosecutor mischaracterized the “beyond a reasonable doubt” standard. Defense counsel in this case failed to object to the prosecution’s statements or otherwise request assignment of misconduct. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” (People v. Ochoa (1998) 19 Cal.4th 353, 427, internal quotation marks omitted.) Defendant therefore raises the issue in the context of ineffective assistance of counsel. To show ineffective assistance of counsel, the defendant must prove that trial counsel’s representation fell below an “objective standard of reasonableness[,]” and that counsel’s error prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-690; People v. Williams (1997) 16 Cal.4th 153, 215.) We thus turn to the substance of the prosecutor’s statement to determine whether competent counsel would have objected.
The prosecutor stated: “. . . If you have a doubt and you can explain to yourself why you have that doubt, reasonable explanation, that’s a reasonable doubt. If you have something gnawing at you but you can’t explain why, there’s no reason for it, that would not be a reasonable doubt. [¶] . . . [Reasonable doubt] [m]ust be based on the evidence. What that means is if you start asking yourself, well, what about this, or what if that, they didn’t do this, they didn’t do that, I wonder what that would show, stop yourself. You’re limited to the evidence presented in this case and either that’s reasonable doubt or it’s not, but you can’t speculate what other evidence that has not been presented might show. You’re limited to what the evidence showed in this case that we’ve admitted into evidence. [¶] . . . Conflicts in the evidence are not reasonable doubt, and the reasons for that is your main job in this case is to evaluate credibility. So if one person says one thing and another person says another thing, that’s not reasonable doubt. You’re to determine which person you find credible, which person you believe. . . . ” (Italics added.)
Defendant contends that the prosecutor’s comments imply that the defense must present affirmative evidence to establish a reasonable doubt—a misstatement of the law. (See, e.g., Johnson v. Louisiana (1972) 406 U.S. 356, 360 [reasonable doubt may be based on reason arising from lack of evidence].) In People v. Hill (1998) 17 Cal.4th 800, 831 (Hill), for example, the prosecutor informed the jury that “‘[t]here has to be some evidence on which to base a doubt’” and that “‘[y]ou can’t say, well, one of the attorneys said so.’” The Supreme Court noted that the comments were “somewhat ambiguous” but “to the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.) The Hill court concluded that “[a]lthough the question arguably is close, . . . it is reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Ibid.)
The statement in this case is similarly ambiguous, but unlike in Hill the comments here are not part of a larger trend of egregious misconduct. (Cf. Hill, supra, 17 Cal.4th at p. 847.) Instead, the statements were made in the midst of several inarguably correct statements regarding the reasonable doubt standard. The reasonable doubt comments also followed a summation of the prosecution’s evidence against defendant and preceded a reference to the People’s burden to prove its case. Moreover, it is clear, in this case, that the prosecutor emphasized the importance of “evidence” to distinguish reasonable doubt from that based on mere speculation.
Other facts in this case support a finding that no misconduct occurred. The jury received standard instructions that the People bear the burden of proving defendant guilty beyond a reasonable doubt and that the defendant is presumed innocent until proven guilty. No instruction stated or even implied that defendant bears any burden of proof or persuasion. The jury was further instructed to “follow the law as I explain it to you even if you disagree with it. If you believe that an attorney’s comments on the law conflict with my instructions, you must follow my instructions.” (See People v. Gray, supra,37 Cal.4th 168, 217 [noting importance of similar instruction in rejecting claim of prosecutorial misconduct].) We presume, absent contrary indications, that the jury followed the instructions given by the court. (People v. Pinholster (1992) 1 Cal.4th 865, 919; see also People v. Mayfield (1993) 5 Cal.4th 142, 179 [“‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’”].) Further, although defense counsel did not object, he emphasized the reasonable doubt standard in his own closing statement, and stressed the People’s burden to “prove each element of a crime beyond a reasonable doubt.”
After reviewing the context of the prosecutor’s comments, “we see no reasonable likelihood . . . the jury construed the prosecutor’s remarks as placing on defendant the burden of establishing a reasonable doubt as to his guilt.” (See People v. Marshall (1996) 13 Cal.4th 799, 831.) We thus find no prejudice resulting from defense counsel’s failure to object to the reasonable doubt argument.
F. Cumulative Effect of Errors At Trial
Defendant contends the cumulative effect of the errors in his trial requires that we reverse the judgment. “[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Hill, supra, 17 Cal.4that p. 844.) In light of our findings above, we find no such prejudicial impact in this case.
G. Request for Continuance
Defendant contends the court erred in failing to grant defense counsel’s request for a further continuance of the sentencing hearing. “‘Continuances shall be granted only upon a showing of good cause.’ (Pen. Code, § 1050, subd. (e).) ‘The granting or denial of a continuance . . . traditionally rests within the sound discretion of the trial judge.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.) “In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, particularly in the reasons presented to the trial judge at the time the request [was] denied.” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265, internal quotation marks omitted.) We find the trial court did not abuse its discretion in denying defendant’s request.
The court entered judgment on January 12, 2006, and set the matter for sentencing on March 3, 2006. The sentencing hearing was continued three times (to accommodate the probation department, due to a scheduling conflict, and on behalf of the court) and was eventually held on April 21, 2006. At the outset of hearing, defense counsel asked that the matter be continued for a “formal sentencing hearing.” Pressed for the reasons behind his request, counsel stated that it was necessary to “provide a separate time where we can hear from [defendant] and from Ai [] in some greater detail.” Counsel also referred to his misunderstanding that this was the “formal” sentencing hearing.
In denying defense counsel’s request, the court referenced the following factors: (1) defendant was free to address the court at the hearing; (2) defendant had previously declined the opportunity to speak with the probation officer; (3) the victim had made her views on punishment clear; (4) without Ai’s personal appearance, the court would “take into consideration the victim is not interested in the maximum possible sentence in this matter”; (5) it would be inappropriate for the court to order Ai to be cross-examined or questioned regarding defendant’s punishment; (6) defendant’s sentencing had already been continued for two months; and (7) defense counsel had been given ample notice of the sentencing hearing. Later in the hearing defense counsel reiterated his request for a continuance to present Ai’s views on sentencing, but acknowledged that she had declined to appear on the original sentencing date. In response, the court elaborated that it would “consider that she would, if called as a witness, would testify that she’s encouraging the Court or recommending the Court very lenient sentence to the defendant.”
Despite the court’s detailed reasons for denying the continuance request, and acknowledgement that it would assume the victim would recommend a lenient sentence, defendant argues the denial of the continuance denied him “due process of law and a fundamentally fair sentencing.” We do not agree. Counsel’s misunderstanding that the sentencing hearing was the formal sentencing hearing does not provide good cause to continue the hearing. Defense counsel did not represent that he had insufficient time to examine the applicable sentencing structure. Counsel had received and reviewed the probation report and, at the hearing, challenged the probation officer’s recommendation; indeed, defense counsel called the probation officer to the stand and questioned her methodology and recommendations. Additionally, counsel argued at length against the recommended sentence. That defense counsel did not offer specific, persuasive objections to the recommended sentence does not establish that the court erred in denying the continuance.
We also find no abuse of discretion and no prejudice arising from the court’s denial of the continuance to allow further opportunity to hear from the victim. Counsel had the opportunity prior to sentencing to approach Ai regarding attendance at the hearing, but did not. Ai had, in fact, spoken with the probation officer and conveyed her opinion regarding defendant’s punishment, and, as defense counsel acknowledged, had informed the officer that she would not be attending the sentencing hearing. In addition, the trial court mitigated any negative consequence that resulted from defense counsel’s inability to obtain a further statement from Ai regarding defendant’s punishment. The court’s interpretation of the victim’s wishes was, in fact, favorable to defendant as the transcript and probation report reveal that Ai’s views on sentencing had only grown more punitive as the legal process progressed.
Defendant’s primary authority is distinguishable. In People v. Trapps (1984) 158 Cal.App.3d 265, 270-272, the court found the trial court erred in denying defendant’s request for a sentencing continuance to obtain new counsel. A defendant’s request for substitute counsel is materially different from a vague request for a “formal” hearing based on the unlikely possibility of favorable in-person testimony from the victim. We find no error in the court’s denial of defendant’s request for a continuance.
Defendant first contends the court violated Penal Code section 654 by imposing consecutive terms for counts 1, 2, and 3—the October 2004 forcible rape, false imprisonment, and criminal threat. He argues that the actions that led to the false imprisonment and criminal threat convictions were merely “part and parcel of this rape,” and that the prison terms for counts 2 and 3 therefore must be stayed. We agree with the trial court’s implied finding that the false imprisonment actions and the criminal threat were not merely incidental to the rape, and conclude that there was no violation of section 654.
Pursuant to section 1170.1, the court imposed a two-year term for count 2 and a consecutive eight-month term for count 3. This term was made consecutive to the terms for the three sex crimes, including the six-year term for count 1.
Section 654, subdivision (a) provides, in relevant 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.” “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639; see also People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison) [“[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent . . . . ”].) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (Harrison, at p. 335.)
Whether a defendant held multiple criminal objectives is a factual issue. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) The trial court’s finding, whether express or implied, will be upheld on appeal if it is supported by substantial evidence. (Ibid.)
Despite the temporal proximity of defendant’s criminal actions, there is substantial evidence that defendant had multiple criminal objectives during the October 2004 incident. His imprisonment of Ai and criminal threat were not merely to facilitate the eventual rape. As Ai described the incident, at the time defendant falsely imprisoned her (blocking her exit from the room and pushing her onto the bed), he had given her no indication of a sexual intent. Rather, the couple’s past history and the totality of defendant’s behavior that day suggest that he kept her in the room against her will to keep her close to him. Defendant was unable to accept the couple’s break-up and continued to show up at the apartment after Ai told him not to visit. He climbed over the back fence and entered the apartment after Ai asked him to leave.
Defendant’s criminal threat also was distinct from the later forcible rape. Defendant told Ai he would rather kill her and kill himself than see her with someone else. Defendant did not threaten to kill Ai if, for example, she did not accede to his sexual demands. Only after shoving Ai back on the bed and strangling her “for a while” did he pull her pants down and, after struggling and fighting, rape her. A reasonable inference is that, apart from any instant sexual gratification, defendant wanted to scare and/or emotionally blackmail Ai into resuming their relationship. His earlier suicide attempt supports such a conclusion.
The complexity of defendant’s motives and objectives with regard to Ai distinguishes this case from defendant’s primary authorities. In both People v. Latimer (1993) 5 Cal.4th 1203, 1206 (Latimer) and People v. Wall (1979) 95 Cal.App.3d 978, 982 (Wall), the defendant drove off with the victim in his car and then raped her. Nothing in either case suggested “any intent or objective” for the kidnapping/false imprisonment other than facilitation of the sexual assault. (See Latimer, at p. 1216 [concluding kidnapping was only for the purpose of committing the sexual offense]; Wall, at pp. 982, 990 [the defendant prevented victim from leaving car and then raped her; his “‘intent and objective’ was manifestly the crime of rape, and the false imprisonment was but a means of its accomplishment”].) In People v. Martinez (1980) 109 Cal.App.3d 851, 858, “[t]he defendant assaulted his victim, dragged her under a bridge and, after he desisted from his attempted rape, held her for a few moments to attempt to convince her not to complain to the police.” The evidence suggested only one objective—the sexual assault.
Because there is substantial evidence that the false imprisonment actions and the criminal threat were not merely incidental to the rape, or to each other, we find no violation of section 654 in this case.
I. Imposition of Consecutive Sentences
Defendant makes several, related objections regarding the trial court’s imposition of consecutive sentences. We find no prejudicial error.
The trial court imposed consecutive sentences for the three sex crimes—counts 1 (rape), 4 (forced oral copulation), and 5 (rape)—pursuant to Penal Code section 667.6. Section 667.6 provides that “[a] full, separate, and consecutive term shall be served for each violation” of enumerated sex crimes, including rape and forced oral copulation, “if the crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d).) The trial court found that counts 1, 4, and 5 occurred on separate occasions, a determination supported by the record. Thus, the court imposed the mandatory consecutive terms for the three sex offenses for an aggregate term of 22 years (which includes 4 years for the deadly weapon enhancement on count 5).
The trial court separately determined the aggregate sentence for counts 2 and 3, the “nonsex” crimes of false imprisonment and making a criminal threat, pursuant to section 1170.1. The court designated count 2 the “principal” term and count 3 the “subordinate” term. The court imposed the midterm sentence of 2 years for count 2 and one-third the midterm, 8 months, for count 3. (See § 1170.1, subd. (a).) Although the court did not explicitly state that count 3 was to be a consecutive sentence, the total term imposed as well as the court’s citation to, and application of, section 1170.1 make clear that was the court’s determination. The trial court then added the aggregate term under section 667.6 (22 years) with the aggregate term under section 1170.1 (2 years, 8 months) to impose a total prison term of 24 years and 8 months.
Section 1170.1 provides, in part: “[W]hen any person is convicted of two or more felonies . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements . . . .” (§ 1170.1, subd. (a).)
Defendant challenges two aspects of the court’s imposition of consecutive sentences. First, he contends the court mistakenly believed that the term for the nonsex offenses must be imposed as a consecutive sentence to the aggregate term under section 667.6 and, thus, failed to exercise its discretion to impose concurrent terms for both nonsex offenses. Second, he argues that the court failed to exercise its discretion and failed to state its reasons for imposing a consecutive term for count 3 vis-à-vis count 2.
The People initially argue that defendant, by failing to object below, forfeited any claim that the court failed to exercise its discretion and/or failed to state its reasons for imposing consecutive sentences. (See, e.g., People v. Scott (1994) 9 Cal.4th 331, 356; People v. Neal (1993) 19 Cal.App.4th 1114, 1124.) Defendant, in turn, contends that if objection was required, his counsel, who admitted being ill-prepared for the sentencing, provided ineffective assistance. Based on this claim, we proceed to the merits of defendant’s arguments.
We consider first defendant’s argument regarding the imposition of the term of imprisonment for the nonsex terms consecutive to the aggregate section 667.6 term. He contends that imposition of consecutive terms for the nonsex offenses is not mandatory, but that due to an erroneous decision suggesting otherwise (People v. Price (1984) 151 Cal.App.3d 803 (Price)), we should assume the court believed that was the case and failed to exercise its discretion. We disagree.
Section 667.6, subdivision (d) states: “A full, separate, and consecutive term shall be imposed for each violation . . . . [¶] . . . [¶] The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1.” (Italics added.) People v. Pelayo (1999) 69 Cal.App.4th 115 (Pelayo) described application of subdivision (d), and the above provisions in particular, as follows: “Section 667.6, subdivision (d) does not permit any discretion in sentencing a person convicted of committing violent sex offenses against more than one victim or against the same victim on more than one occasion. The Legislature has declared that these serious crimes demand harsher punishment. Full, separate and consecutive sentences must be served for each conviction. Further, a person subject to section 667.6, subdivision (d) must be sentenced in a manner that does not dilute the impact of full, consecutive terms of imprisonment. The statute requires that the prison term imposed ‘shall not be included in any determination pursuant to Section 1170.1.’ Thus, it may not be used to reduce the term of any other conviction. The computations under sections 1170.1 and 667.6, subdivision (d) must always be done separately and the total of the section 667.6, subdivision (d) sentences added to any sentence computed independently under section 1170.1.” (Id. at pp. 124-125, italics added.)
We agree with the Pelayo court’s assessment of the statute. The statute clearly states that the prison terms for the violent sex offenses covered by section 667.6 must be made consecutive “to any other term of imprisonment” and cannot be incorporated into a section 1170.1 calculation. Use of the aggregate sex offense term as a principal or subordinate term under section 1170.1 would dilute the effect of the mandatory “full, separate, and consecutive” term required under subdivision (d). Thus, the trial court was correct in concluding that an aggregate term for the nonsex offenses must be calculated separately, and then added to the aggregate section 667.6 term for counts 1, 4, and 5. If a separate term of imprisonment for the nonsex offenses is not imposed consecutive to the section 667.6 term, one of the section 667.6 offenses effectively becomes the principal term under section 1170.1 and the nonsex offense terms become subordinate terms. (Cf. Pelayo, supra, 69 Cal.App.4th at p. 123[“[B]y treating both of the nonviolent sex offenses as subordinate counts under the one-third the middle term rule of section 1170.1, the court effectively made one of the violent sex offenses a principal term under section 1170.1.”].) This is plainly prohibited by section 667.6, subdivision (d).
Defendant’s contention—that the “shall be served consecutively to any other term of imprisonment” language means only that the terms for the violent sex offenses be imposed consecutive to each other and not to the aggregate term for nonsex offenses—is unavailing. Were that the case, this language would be superfluous; the opening sentence of subdivision (d) makes clear that a “full, separate, and consecutive term shall be served for each violation.” (§ 667.6, subd. (d), italics added.) Defendant alternatively argues that this restriction means only that the section 667.6 term be imposed consecutively to a term of imprisonment in a separate proceeding. To adopt this interpretation we would be required to read a limitation into the statute that is not there; the statute refers to “any other term of imprisonment” and not to “any other term of imprisonment in another proceeding.”
Defendant’s examples of cases in which the trial court imposed a term for a nonsex felony concurrent to a full consecutive term on a sex offense are not relevant to our discussion. Two of the cases do not involve subdivision (d) of section 667.6 and the third does not address the issue.
Defendant argues separately that even if the court was required to impose the term of imprisonment for the nonsex offenses consecutive to the section 667.6 offense, it was not required to impose the count 3 term consecutive to count 2. We agree. The reference to section 1170.1 in section 667.6 does not dictate that section 1170.1 be used in calculating the aggregate sentence for those offenses that do not fall within its purview. In other words, section 667.6 does not require that any nonsex offenses be imposed as consecutive sentences, per se. Section 667.6 is unambiguous, however, in its requirement that the section 667.6 term of imprisonment be consecutive to any other term.
The Pelayo court’s remand instructions to the trial court are in accord. The court assumed that the trial court retained authority to determine whether nonsex offenses should be imposed as consecutive or concurrent terms, but that the court must impose the section 667.6 term consecutive to the term of imprisonment for any nonsex offenses: “On resentencing, the trial court should calculate the appropriate terms for counts 1 and 2 [nonsex crimes] under section 1170.1, making the necessary discretionary choices concerning the length of the principal term (lower, middle, upper) and consecutive versus concurrent sentences. The terms selected should be added to the full term, consecutive sentences imposed for counts 3 and 4 [sex crimes].” (Pelayo, supra, 69 Cal.App.4th at p. 125.)
Price, supra, 151 Cal.App.3d 803, which defendant contends was decided incorrectly and thus misled the trial court, also is consistent with our holding. In that case, the court considered the application of subdivision (c) of section 667.6, which allows but does not require the court to impose the full and consecutive sentencing scheme for certain sex crimes. (Price, at pp. 816-817.) The court held that when a court opts to sentence sex offenses pursuant to section 667.6, subdivision (c), any nonsex offenses should be “analyzed independently under section 1170 and 1170.1.” The defendant should then be sentenced to the sum of the term of imprisonment for the nonsex offenses and the section 667.6 aggregate sentence. (Id. at p. 817.)
We conclude that section 667.6 requires the trial court to calculate the term for any nonsex crimes independently of the section 667.6 term, and then add the two together. This is the approach taken by the court in this case.
We are left with defendant’s argument regarding the consecutive term imposed for count 3. Defendant contends that the court failed to exercise its discretion to choose between a concurrent or a consecutive term for that count and failed to state its reasons for imposing the consecutive term. “[A] ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.” (People v. Downey (2000) 82 Cal.App.4th 899, 912 (Downey), internal citations and quotation marks omitted.)
There is no affirmative evidence that the trial court was unaware it had discretion to impose a concurrent sentence for count 3. To the contrary, the probation report merely “suggests” a consecutive sentence. Defense counsel’s input on this aspect of the sentencing was ambiguous and the prosecutor’s only reference to the issue merely sanctioned use of count 2 as a principal term vis-à-vis count 3. The court made no mention of a mandatory determination. (Compare, e.g., Downey, supra, 82 Cal.App.4that pp. 911-912 [court noted that consecutive term was required in imposing sentence; because it was not, the appellate court remanded].)
Defense counsel stated: “I mean, obviously my request would be to give as many mitigated sentences here as possible. I think the Court can take into consideration that the law requires mandatory consecutive sentencing to at least mitigate some of this. I don’t think everything has to be run consecutive. . . .” (Italics added.)
Defendant again points to Price, supra, 151 Cal.App.3d 803 to support its argument that the court misunderstood its ability to impose a concurrent sentence for count 3. In reaching its conclusion, the Price court observed that “any nonsex offenses must be sentenced under the provisions of section 1170.1 as if the offenses treated under section 667.6 did not exist. After the two completely independent sentencing totals are computed, they are added together to reach the total term of imprisonment.” (Id. at p. 817.) The suggestion that the terms for the nonsex offenses be imposed under section 1170.1 (implying consecutive treatment) is mere dicta; the key point of the holding is that the nonsex offenses be sentenced “as if the offenses treated under section 667.6 did not exist” and that the two aggregate terms of imprisonment are then added together. Indeed, elsewhere the court hints at the threshold decision to impose consecutive or concurrent sentences, by applying sections 1170 or 1170.1, for the nonsex offenses: “[T]he two nonsex offenses-the robberies-should have been analyzed independently under section 1170 and 1170.1. The concurrent sentences imposed . . . formed the ‘total’ of the section 1170.1 analysis for the purposes of addition to the section 667.6, subdivision (c) sentences.” (Ibid.) The court’s vague language, which refers to an issue not directly before that court and which relates to a different subdivision of section 667.6, does not persuade U.S. that the trial court in this case was misled as to the court’s sentencing authority. Absent affirmative evidence the court was unaware of its discretion, we presume it was aware and simply chose not to exercise it. (See Evid. Code, § 664.)
Finally, we consider the court’s failure to state its reasons for imposing a consecutive sentence. We find no basis to conclude that it is “reasonably probable the court would impose a different sentence” on remand and, thus, find that any error in failing to state its reasons was not prejudicial. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The probation report listed four factors in aggravation, and only one in mitigation. The trial court observed that given this imbalance, the midterm recommendations that the court adopted were in defendant’s “great favor.” Additionally, as discussed in section II.H., supra, there is support for the finding that counts 2 and 3 involved different intents and objectives. (See generally Cal. Rules of Court, rule 4.425 [consecutive sentence criteria].) Absent the probability of a different result, remand would be an idle act and is not required. (Ibid.; see also People v. Price (1991) 1 Cal.4th 324, 440, italics added [“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.”].)
J. Blakely Violation
Defendant’s final contention is that the imposition of consecutive terms pursuant to section 667.6 violated defendant’s Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). This claim was not forfeited by defendant’s failure to object below. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) It is, however, without merit. The California Supreme Court recently reiterated its understanding that Blakely and its progeny do not apply “to a trial court’s decision whether to require that sentences on two or more offenses be served consecutively or concurrently.” (People v. Black (2007) 41 Cal.4th 799, 821.) Our high court explained: “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823.) Under this rationale, the fact that section 667.6 requires a statement of reasons to impose a consecutive sentence is irrelevant. The fact that the imposition of consecutive sentences under section 667.6 increased defendant’s total sentence by a substantial amount, compared to consecutive sentences imposed pursuant to section 1170.1, is likewise irrelevant. We therefore find no support for defendant’s Blakely claim.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
BLANK[:] So you could have sex with her. Is that not true?
TRAN[:] Kind of, yeah.”