Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD207535 Kerry Wells, Judge.
BENKE, J.
In this case William Viltz was convicted of multiple crimes growing out of the kidnapping and rape of a prostitute. On appeal he contends the trial court should have instructed the jury on attempted rape as a lesser included offense of forcible rape and erred in instructing the jury with respect to the credibility of the victim and another witness who was also a prostitute. He also argues his counsel was ineffective in attacking the credibility of the two women. We agree that in light of Viltz's testimony the jury should have been instructed on attempted rape. The record, however, shows the jury entirely rejected Viltz's version of events and accepted the victim's version. Thus, the error was not prejudicial. We find no other instructional error and no deficiency in counsel's performance.
We also find that, contrary to Viltz's argument on appeal, the jury's verdict is supported by sufficient evidence and that the trial court did not abuse its discretion in sentencing Viltz.
STATEMENT OF THE CASE
A jury convicted Viltz of kidnap for ransom (count 2, Pen. Code, § 209, subd. (a)); forcible oral copulation (count 4, § 288a, subd. (c)(2)); forcible rape (count 5, § 261, subd. (a)(2)); attempted forcible rape (count 6, §§ 664, 261, subd. (a)(2)); making a criminal threat (count 7, § 422); and evading a police officer with reckless driving (count 10, Veh. Code, § 2800.2, subd. (a)). As to those counts, the jury found Viltz personally used a dangerous or deadly weapon (a pellet/BB gun) (counts 2, 6, and 7, § 12022, subd. (b)(1); counts 4 and 5, § 12022.3, subd. (a)). The jury further found as to counts 4 and 5 that Viltz kidnapped the victim substantially increasing her risk of harm (§ 667.61, subds. (a), (c), (d)), kidnapped the victim in violation of section 207, 208, 209, or 209.5 (§ 667.61, subds. (a), (c), (e)), and tied or bound the victim (§ 667.61, subds. (a), (c), (e)).
All further statutory references are to the Penal Code unless otherwise specified.
The jury acquitted Viltz of one count of forcible oral copulation (count 1, § 288a, subd. (c)(2)), one count of robbery (count 8, § 211), and one count of assault by means likely to produce great bodily harm (count 9, § 245, subd. (a)(1).) As to one count of kidnapping for robbery or rape (count 3, § 209, subd. (b)(1)) the jury was unable to reach a verdict and the People elected to dismiss that count.
The court sentenced Viltz to an aggregate prison term of life with the possibility of parole plus 50 years to life, plus 14 years 8 months.
STATEMENT OF FACTS
Prosecution Case
1. R.B.
On June 27, 2007, at approximately 6:00 p.m. 20-year-old R.B. was working as a prostitute with her friend Jennifer T. in San Diego. The two women saw Viltz driving a Honda SUV in the vicinity of El Cajon Boulevard and began walking towards him. Viltz pulled over and R. got in his car.
Viltz told R. he "didn't have enough for a two-girl show" and drove off without Jennifer. A couple minutes after he began driving east on El Cajon Boulevard, Viltz pulled out his penis, apparently as a means of assuring R. that he was not an undercover policeman.
Viltz then asked R. to kneel down so the police would not see her in the car with him. R. complied with Viltz's request. Jennifer called R. to ask her if everything was alright. R. told Jennifer she was fine. Viltz told R. he knew of a location where they could go and then drove there. R. was not afraid of Viltz at that point.
R. testified that when they pulled up at the first location, they discussed her price and agreed on $100 for oral and vaginal sex. However, after they agreed on a price, Viltz pulled out what appeared to be a small handgun and told her he wanted oral and vaginal sex from her. Viltz told her if she refused, there would be "problems." As Viltz was talking to R., he was holding the gun in his left hand with the barrel pointing towards the front windshield. R. took a condom out of her bra, put in on Viltz's semi-erect penis and began performing oral sex on him.
While R. was performing oral sex on Viltz, he was looking in the rear view mirror and told R. that he was paranoid and did not feel comfortable because there were other people in the area. Viltz was having a hard time getting aroused and was only partially erect.
While they were at the first location, Viltz told R. to call her pimp and tell the pimp that Viltz wanted $5,000 or R. would die. When R. told Viltz she did not have a pimp, Viltz told her to call Jennifer and tell Jennifer to get him $1,000. At that point, R. was afraid she was going to die. R. begged Viltz not to kill her and, although it was not true, she told him she had two children.
R. called Jennifer and told her that Viltz wanted $1,000 from her. R. told Jennifer that Viltz had a gun. When Jennifer told R. that she did not have $1,000, Viltz told R. to tell Jennifer to start finding prostitution customers and earn the money. After R. talked to Jennifer, Viltz told R. to turn over and he tied her wrists behind her back with his belt. Viltz then told R. to kneel down on the floor with her head on the seat. When she complied, he put a small wool blanket or jacket over her head. Viltz then began driving to a second location. During the ride, Viltz told R. this was not a joke. He also spoke with Jennifer on the phone. After what sounded to R. like they had driven on a freeway and after about 10 minutes had passed, they drove on a dirt road. Viltz took the jacket and belt off R., pulled his pants down, and began masturbating.
During this time, the gun was out of R.'s sight, although she believed it was by the driver's side door.
When the car stopped, Viltz told R. to take off her clothes, put her hand over her eyes and not breathe. R. was scared. It was dark and the location "just seemed like somewhere where he was going to kill me." She took off her clothes and sat in the passenger seat, facing Viltz. While Viltz was still masturbating, Jennifer called and Viltz told R. to tell Jennifer that Viltz was "fucking" her.
Viltz then climbed over to the passenger seat and got on top of R. Viltz tried to have sex with R., but his penis was not erect, so he could not penetrate her. Viltz asked R. for another condom and told R. to give him oral sex, and she did. Viltz then got out of the car, went over to the passenger side, and told R. to bend over. R. bent over with her buttocks facing out of the car. Viltz then had vaginal sex with R. from behind for a few minutes while standing outside of the car. Viltz ejaculated, took the condom off, and threw it by the side of the car.
After raping R., Viltz went to the back of the car near the trunk, made a prayer gesture with his hands and pointed the barrel of the gun at his own head. At that point, Jennifer called again and R. answered the phone. Jennifer told R. she had $200 in her purse, but that her purse was locked in R.'s car and R. had the keys. When R. reported this to Viltz, Viltz responded that Jennifer should keep working as a prostitute to earn the $1,000 Viltz was demanding.
Viltz then told R. to put her clothes back on. He retied her hands behind her back, put her back on the floor of the car with her head on the seat, and put the blanket or jacket back over her head. However, this time the blanket or jacket was positioned so R. could still see Viltz.
Viltz then called Jennifer and told her to go to a Carl's Jr. restaurant where she would find the keys to R.'s car in the women's bathroom. R. told Viltz where she parked the car which had Jennifer's purse and the $200 inside. The two headed to the laundromat where the car was parked. Once there, Viltz took the key and got R.'s purse from under the driver's seat. R. told him that was the wrong purse and that Jennifer's purse was under the passenger seat. Viltz then retrieved Jennifer's purse, took what R. thought was $200 out of Jennifer's wallet, and put it in his pocket.
Viltz started the car and drove out of the parking lot. He told R. that he was going to let her go, but not at the laundromat. He said he was going to put the keys somewhere, tell Jennifer where they were and tell Jennifer to pick up R.
However, Viltz saw a police car behind him and said "Oh, shit." As he drove, Viltz untied R. and told her to tell police he was just giving her a ride. He also gave her car keys. R. sat up on the passenger seat and grabbed both purses, holding them in her right hand. At that point, R. heard the police sirens and saw the lights. Viltz sped away from the police. He entered the Interstate 15 (I-15) freeway and quickly got off. Viltz then drove down an alley, where R. saw Viltz open a door and throw an object out of the car; R. thought it was the gun.
Viltz then told R. to jump out of the car or he was going to shoot her. R. had the door open, but was scared to jump because the car was going so fast. According to R., as the car made a turn, Viltz pushed R. out of the car and she rolled into a truck.
As a result of being pushed out of the car, R. sprained her ankle, got a large bloody bruise on her left shoulder, bruised her knees, injured her wrist, and got a large knot on her head where it hit the truck. R.'s feet were scraped up from sliding on the ground. A police officer who found R. called an ambulance and she was taken to the hospital and then to a rape victim center.
R. lied to police who interviewed her at the hospital. She told them that she was not a prostitute and had not voluntarily entered Viltz's car but that he had a gun and forced her to get in the car. R. lied because she thought the officers "seemed more worried about me working as a prostitute than what had happened." She thought because she was a prostitute, the officers were taking the situation very lightly, which made her feel uncomfortable. R. learned that Jennifer called R.'s boyfriend's mother, that the boyfriend's mother had called police and the police knew from this phone call that R. was a prostitute.
At the rape center, R. spoke to a nurse about what had happened. She also lied to the nurse, telling her she was not a prostitute and lied about how she came to be inside Viltz's car because the same officer was present when the nurse was asking her questions about what happened.
The next day, Detective Bernier contacted R. and took her to the district attorney's office. Detective Bernier told R. she knew she was a prostitute and what she was doing in the car. R. told her the truth about what happened and about how she had lied to the police officer and to the nurse.
2. Marie L. and Jennifer T.
Marie L. is the mother of the man who was R.'s boyfriend on the evening the assault occurred. By the time of trial, R. had married her boyfriend and Marie L. had become R.'s mother-in-law.
On the evening of the assault, Jennifer, who was crying, called Marie L. and told her R. was in fact a prostitute and was being held for ransom. Marie L. had not been aware R. was a prostitute. Jennifer told Marie L. that Viltz had called saying he wanted $1,000 by midnight or he was going to kill R.
Marie L. called 911 and told the operator R. had been kidnapped. After Marie L. got off the phone with the police, she called R.'s cell phone. Viltz answered the phone and asked if it was Jennifer. Marie L. told him no, that she was R.'s mom. Marie L. then heard R. in the background, screaming that Viltz had a gun and to give him the money.
3. Officer Lamar Rozsa
Officer Lamar Rozsa noticed a Honda Element that appeared to match the description of the car involved in the kidnapping reported by Marie L. Rozsa followed the car for about a half mile, then watched it run a red light. Rozsa then put on his lights and sirens and a pursuit ensued. Rozsa saw the passenger door open slightly and it looked like something fell out of the car. Rosza never saw the driver's side door open. Then a woman fell out of the car. Rozsa could not tell if she exited the car on her own or was pushed out. At the time, the car was traveling approximately 25 miles per hour and was making a turn. Rozsa believed that the force of the turn was what caused the woman to literally fly out of the car: "[I]t was kind of like gravity flipping the door open, and the female came flying out of the car."
Rozsa radioed another officer to stop and help the woman and continued pursuing Viltz. Rozsa pursued Viltz on the I-15 freeway, weaving between lanes in and out of traffic and going 90 to 100 miles per hour. Viltz merged onto the Interstate 805 (I-805) southbound, then exited Home Avenue, taking the off-ramp at about 80 miles per hour. Viltz went through another red light and attempted to re-enter the I-805 travelling southbound. While doing this, Viltz clipped the right shoulder, which caused the car to crash and roll. The car collided with an embankment and flipped over. Viltz then ran from the car into a wooded area and Rozsa lost sight of him.
The dispatcher contacted the registered owner of the car, who told the dispatcher her boyfriend, William Viltz, had the car. Rozsa positively identified Viltz from his driver's license as the person who ran from the Honda Element. A pellet gun was found 20 to 25 feet away from the crashed vehicle.
4. Officers Eddie Wallin and John Iammarino
San Diego Police Officer Eddie Wallin assisted Rozsa at the crash site. He found a black pellet gun that contained a CO2 cartridge with which to shoot pellets or BB's. Wallin did not find any bullets, cartridges, or pellets at the crash site.
San Diego Police Sergeant John Iammarino received a radio call of a suspicious person in the 1700 block of Ridge View Drive, an area just east of the I-805 freeway. Believing the suspicious person could be Viltz, the officers began a search of the area. At the 1800 block of Ridge View, Wallin found a dirty white tennis shoe with blood on the side of the shoe and on its shoelaces.
5. Leroy Walker
Leroy Walker, Viltz's friend, testified that at around 10:00 p.m. that evening Viltz called Walker and asked him to pick him up at the trolley stop at Qualcomm Stadium. Walker got to the trolley stop around 10:30 p.m. to pick up Viltz. Viltz was wearing jean shorts, a brown T-shirt, and was barefoot. Viltz did not offer an explanation as to why he needed Walker to pick him up or what he had been doing earlier in the evening. They went back to Walker's home in Chula Vista and watched television. Because it was cold out, Walker loaned Viltz a pair of gray sweatpants, a brown zip-up hooded sweatshirt, and a pair of white K-swiss shoes. Walker noticed that Viltz had a cut on his hand.
Viltz called his girlfriend from Walker's cell phone and spoke to her for a couple of minutes. Viltz asked Walker if he could take Viltz home and Walker drove him home around midnight.
6. Forensic Evidence
Joy Brychta, a registered nurse with specialized training in sexual assault examinations, testified that she examined R. at around 11:20 p.m. that night. Brychta did not find any tearing or vaginal injuries. However, Brychta stated that genital injury does not always occur when there is sexual penetration.
R.'s demeanor was calm, cooperative, and she made direct eye contact during the examination. The nurse did not see any wrist injuries consistent with being tied or bound. She asked R. a list of questions. R. told her that her assailant had a gun. R. said she had no genital pain or bleeding. R. told the nurse she gave Viltz oral sex and that he had penetrated her with his penis and ejaculated into a condom. R. did not tell the nurse she was a prostitute.
Willie Del, a criminalist at the San Diego Police Department crime lab testified that he examined R.'s sexual assault examination kit. On the vaginal swabs, he did not find semen. He did not find semen on R.'s clothing or on the external genital swabs, or in her chewing gum.
Koa Rudiger, a criminalist with the San Diego Police Department tested a pair of gray men's boxer briefs and a cutting from the passenger seat. She found no semen on either item. However, under a microscope she saw two sperm cells taken from the fly of the boxers. She also did a swab of the passenger seat and found a couple of sperm cells under a microscope from that swab. She also found nucleated epithelial cells, from internal areas like the mouth or vaginal cavity, on the passenger seat cover. She packaged these swabs for the DNA analyst.
Adam Dutra, a criminalist with the San Diego Police Department crime lab performed DNA analysis of the swabs he received from criminalist Rudiger. Dutra took the swabs and separated the sperm cells from the nucleated epithelial cells. Dutra generated a DNA profile from the sperm fraction from the passenger seat cover. He compared this profile to the known DNA profile previously generated from a mouth sample from Viltz and the two samples matched. The non-sperm fraction from the passenger seat was a mixture of DNA from at least three different people. However, R. was the primary contributor to the mixture.
Defense Case
Viltz was convicted of felony assault in 2005 and was on probation on the evening of the assault. He testified on his own behalf. He was planning on getting married to Jessica Marshall, his girlfriend. On the morning of June 27, 2007, Viltz was taking care of his two young boys and remodeling the condo where he lives with them and Marshall. Marshall came home around 5:00 or 6:00 p.m. Viltz borrowed her Honda Element, lied and told her he was going to an Alcoholics Anonymous meeting. However, he was actually planning on picking up a prostitute.
Viltz headed to El Cajon Boulevard and took an unloaded pellet gun with him. He brought the gun to have something with him that "looked menacing, just in case something bad happened."
On El Cajon Boulevard, he saw Jennifer and R. He spoke to the women and R. got in the car and Jennifer walked off. Viltz started driving and R. grabbed his crotch to make sure he was not a police officer. R. asked Viltz what he wanted to do. R. agreed to give Viltz oral and vaginal sex for $100. Viltz asked R. if she had condoms and she said no. He offered to go into a nearby liquor store to pick some up but told her the cost would come out of the hundred dollar bill. R. said she had condoms in her car, so the two drove to R.'s car to pick them up. On the way, R. leaned her seat back because she did not want to be seen by police. Viltz got out and retrieved R.'s purse from the car. When he got back in the car, R. was on the phone with Jennifer. R. told him that Jennifer was hungry and Jennifer's purse was locked in R.'s car. She asked if after they were "done" they could pick up Jennifer and get something to eat. Viltz went back to R.'s car and grabbed Jennifer's purse. R. was still on the phone with Jennifer as Viltz set off to go pick her up. Jennifer told R. never mind, as a date had come to get her.
R. directed Viltz to a residential cul-de-sac off Adams Avenue. When they got there, Viltz gave R. the hundred dollars and R. gave Viltz a condom. Viltz was uncomfortable at the location as there were a lot of people around. R. assured him that she takes people to that location all the time and that they would not get caught. After at least 10 minutes, Viltz got comfortable and leaned his seat back. He adjusted the mirror and in doing so saw a car pull into the driveway. That spooked and frustrated Viltz. He said, "F this, we're not going to do it here, " raised his seat back up, and started the car. According to Viltz, R. did not perform any sex acts at the first location.
At the first location, Jennifer had called back saying her date had not worked out and expected Viltz and R. to come to her location. Jennifer seemed to be checking on R. and R. told Jennifer that everything was alright.
Jennifer called approximately 10 to 20 times throughout the night. Once R. started to get frustrated, she told Jennifer that Viltz was having problems getting aroused. After they left the first location, they drove around the neighborhood looking for a place to pull over and have sex. None of the spots in the neighborhood looked good to Viltz, and he suggested they go to a location near his house. They parked, and Viltz tried to get himself aroused by masturbating. He put a condom on and asked R. to give him oral sex, but she was insulted and "grossed out" because he was not fully hard yet. It took Viltz awhile to get aroused because R.'s phone kept ringing and she was impatiently "talking crap" to Viltz, trying to get him to hurry up. R. was getting frustrated with the situation, and Viltz said, "forget the head, just, you know, let me -- let's just have sex." R. wanted to get on top, but because Viltz wasn't hard all the way that was not going to work. R. did not want Viltz to get on top, so she suggested he come around the back.
According to Viltz, they did not have any oral sex or vaginal sex before Viltz got out of the car and walked around to the passenger side. Viltz was wearing a condom. R. slid her jump suit off and bent over on the seat with her rear end facing outside. However, R. was positioned too high up for Viltz to penetrate her vagina. Then, Viltz saw a private security truck flickering its lights down the road. Viltz pulled off the condom and dropped it. Viltz pulled up his pants and got back in the car. The security truck was "just looking at us" and Viltz started the car and drove away. At that point, the "honeymoon had been way over" and R. was back on the phone calling him a "mother fucker."
Viltz told R. he had to drop her off as he was already late getting back from the "AA meeting." His girlfriend suspected him of being "dishonest in our relationship" and in fact Viltz had had sex with other women in his girlfriend's car in the past. On the way back, Viltz asked R. for his money back. She said "fuck no." Viltz threatened to call the police on her if she didn't give him his money back, saying he knew what she was driving and would give the police her license plate number. During a course of phone calls, R. told Viltz he would have to talk to her manager about a refund, but that maybe he could get half his money back. Viltz did not have R.'s phone but was talking in the background. R. told Viltz her manager said they could talk about the refund at Carl's Jr. Viltz said "fuck that." Viltz later understood that R.'s manager was actually her mother-in-law.
Viltz testified he never answered R.'s phone. R. told her to drop her off at her car and swore on her kids' lives she would follow him to Carl's Jr. to meet up with her manager and discuss the refund. During this time, Viltz pulled over and tried to kick R. out of the car several times but she would not get out. She demanded Viltz drop her off at her car. Finally, Viltz decided to just go home. He made a U-turn in order to pull over and drop R. off when he saw the police behind him. Viltz said, "Oh, shit" and both he and R. started to panic. R. told Viltz her real name and said she had kids and could not go to jail. Then Viltz took off from the police. R. took out her roll of condoms, opened the passenger door and threw it out to get rid of the evidence of prostitution. She wanted to jump out of the car and flee on foot. Viltz drove around trying to find a place to let her jump out and run. As the police were still chasing them, Viltz went down an alley. R. grabbed her stuff and jumped out of the car. Viltz "wouldn't push anybody out of a car, period." Once R. jumped out, Viltz panicked even more, continued fleeing the police and eventually lost control of the car and crashed.
After the crash, he heard R.'s cell phone ringing, so he grabbed the phone and his BB gun and climbed out of the car's window. Viltz lost his shoe. Realizing that the cops were pulling up, he dropped the gun and took off running. According to Viltz, his evening could be summed up as follows: "I picked up a prostitute. I ran. She jumped out of the car. I just crashed. I really don't want to get caught because I'm on probation, driving on a suspended license, and it's Jessica's car."
After he got out of the car, Viltz ran across the freeway, ran up a hill, and ducked down by a tree. He ended up in a neighborhood and kicked off his other shoe. He called Jessica and made up a crazy story about how he was involved in a marijuana deal gone bad, had fled from the police, and had totaled her car. During the multiple calls, she told Viltz the police were on the other line. Viltz told her to lie about where he was and to tell the police that he was not driving the car. Viltz told her to tell the police that the car had been stolen. Viltz hopped on a bus and took the bus to the trolley stop. Viltz then called his friend Walker to have him pick him up. Walker picked Viltz up and they went back to Walker's house. While there, Jessica called Walker's phone saying that the police were over at the house. Viltz got on the phone with one of the officers and told him that he was at Walker's the whole time and gave his description. He asked the officer if he needed to come home and then he did go home. The next day, the S.W.A.T. team came to Viltz's house and arrested him.
Viltz lied to the police, telling them he was not involved in the assault on R. Viltz explained the injury to his hand as a skateboarding accident. He also explained the injuries to his arm as being caused by catching a football near bushes. Viltz told the officers he was wearing K-Swiss shoes instead of Reeboks that night. He also stated he had been with Walker the entire day. Viltz told the police his girlfriend's son must have dropped the Honda's keys and that an unknown person must have picked them up and stolen the car. Viltz agreed to DNA testing.
DISCUSSION
I
In his first argument on appeal, Viltz argues the trial court erred in declining to instruct the jury on the crime of attempted rape as a lesser included offense of the forcible rape alleged in count 5 of the information. Although we agree an attempted rape instruction was required, the error was not prejudicial.
A. Procedural Background
Although R. testified Viltz fully penetrated her vagina while standing behind her with the passenger door open, Viltz testified that he did not penetrate R. Viltz testified that although his penis was erect and he intended to have intercourse with R. and he was able to place his penis on the inside of her buttocks, because of the height of the seat of the car "I didn't get to the cavity." Notwithstanding Viltz's testimony about his inability to penetrate R.'s vagina, when his counsel requested the jury be given an attempted rape instruction with respect to count 5, the trial court declined the request. The trial court reasoned that the only disputed issue was whether R. consented and that in light of that circumstance, an attempted rape instruction was not appropriate.
B. Analysis
As the People concede, an instruction on a lesser included offense is required where the evidence is susceptible to an interpretation which, if accepted by the trier of fact, "would render the defendant guilty of the lesser included offense, rather than the specifically charged offense." (People v. Chambers (1982) 136 Cal.App.3d 444, 456.) This rule is required by the interests of justice so that "when the evidence suggests the defendant may not be guilty of the charged offense, but only of some lesser included offense, the jury must be allowed to 'consider the full range of possible verdicts..., so as to 'ensure that the verdict is no harsher or more lenient than the evidence merits.' " (People v. Breverman (1998) 19 Cal.4th 142, 160.)
"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Importantly, in noncapital cases errors in failing to instruct "on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman, supra, 19 Cal.4th at p. 178, fn. omitted.) Under Watson¸ our "review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Id. at p. 177.)
Here, had the jury accepted Viltz's description of the difficulty he had penetrating R., it is conceivable the jury could have concluded that although Viltz's encounter with R. was involuntary, he was not physically capable of raping her from outside the car door and thus was only guilty of attempted rape. Thus the trial court erred in failing to provide the jury with attempted rape as an alternative verdict on count 5.
However, as the People point out, this error was plainly harmless under the applicable Watson standard. We note that in addition to finding Viltz raped Ranishsa, the jury convicted Viltz on a host of other substantive counts: kidnapping, forcible oral copulation, attempted forcible rape and making a criminal threat. The jury also made true findings he had substantially increased the risk of harm to R. by kidnapping her and tying and binding her. Given all these findings, it is clear the jury did not accept Viltz's version of events in which he was simply the frustrated patron of a prostitute who had no sexual contact with her, but instead largely accepted R.'s account of being kidnapped, bound and sexually assaulted against her will.
The jury's guilty verdict on the count of forcible oral copulation is of particular significance. The oral copulation which was the subject of that count occurred at the second stop and immediately before R. testified Viltz raped her. As we have noted, Viltz denied being either orally copulated at that point or being able to penetrate R. Thus, not only did the jury in general reject Viltz's portrayal of the evening as being entirely consensual, but it plainly rejected his testimony that he did not have any unlawful sexual contact with Vanisha at the second stop.
As the People note, the record fully supports the jury's rejection of Viltz's testimony and its acceptance of R.'s account: her account was corroborated in a powerful way by the phone calls she made and received during the course of her encounter with Viltz. In particular, the 911 call R.'s mother-in-law made, and her conversation with Viltz himself entirely undermined Viltz's claim that his encounter with R. was at all times consensual. These calls were of course consistent with Jennifer's testimony about her telephone calls to and from R.
However, R.'s account is also supported by consideration of the motives of the witnesses. Plainly, Viltz had a motive to fabricate and diminish what occurred and exonerate himself. Although it is possible R. invented the kidnapping and sexual assault account, it is difficult to ascribe a motive for such invention. Rather, in evaluating the testimony of R. and Jennifer, as well as R.'s mother-in-law, the jury very likely concluded it was not in the interest of the two prostitutes to fabricate a situation in which one of them needed to be rescued by police.
Finally, with respect to the relative credibility of Viltz and R., the jury was no doubt also influenced by the implausibilities in Viltz's version of events. The jury could have easily rejected both Viltz's weak explanation of why he took a gun with him that evening and his account of Jennifer's repeated telephone calls which, according to him, were no more than an annoyance to him. We also note the incredible risks he took with his own life in fleeing from police were far more consistent with the violent sexual attack R. described than with his explanation that, although he never completed any sex act with her, he was nonetheless afraid of being found with a prostitute while on probation.
We recognize that in some respects the jury rejected the prosecution's theories of Viltz's criminal culpability. For instance, the jury found that at the first stop Viltz was not guilty of forcible oral copulation. However, in light of statements R. made to police after being rescued, to the effect she was not afraid of Viltz at the first stop, this verdict cannot be interpreted so much as a reflection on R.'s credibility, but rather doubt on the part of the jury as to whether, even accepting R. as a credible witness, a crime occurred. The same is true with respect to the not guilty verdicts the jury returned on the robbery and assault counts. At the time Viltz allegedly took money from Jennifer's wallet, by her own admission R.'s head was still partially covered and she did not know how much money Viltz took. Again, even accepting R. as a credible witness, the jury could still have reasonable doubt that a robbery occurred. Much the same is true with respect to the assault acquittal. Although R. may well have believed Viltz pushed her out of the car, the jury may have accepted Officer Rosza's conclusion that it was the force of the turn the car was making, with the door already open, which propelled R. out of the car rather than Viltz. Again, however, that conclusion does not reflect on R.'s overall credibility as a witness, which the guilty verdicts on the multiple remaining counts and true findings demonstrate the jury accepted.
Rather than suggesting that the jury had any doubt that Viltz penetrated R., the care with which the jury plainly considered each count and rejected the prosecution's theory as to some of them, suggests the jury conscientiously considered the conflict in testimony on the penetration issue and very consciously adopted R.'s version. Under that version, Viltz was guilty of rape, not attempted rape. In sum, the record shows that, given the large quantum of evidence and circumstances which support R.'s account of events and the careful consideration the jury gave each count, it is not likely that even if the jury had been given an attempted rape alternative, the availability of the alternative would have caused the jury to accept Viltz's testimony that he was unable to penetrate R. Rather, just as the jury rejected Viltz's testimony that R. did not orally copulate him at the second stop, even with an attempted rape instruction, it is clear the jury would have rejected his contention that he was unable to penetrate her after being orally copulated.
II
Next, Viltz raises related contentions with respect to credibility instructions the jury was provided as well as trial counsel's efforts to impeach R. and Jennifer.
A. Procedural Background
The trial court instructed the jury with CALCRIM No. 226, which in pertinent part states that among the factors to be considered in evaluating a witness's credibility are: "Has the witness been convicted of a felony? [¶] Has the witness engaged in any other conduct that reflects on his or her believability?" The trial court also gave the jury a version of CALCRIM No. 316, Alternative A, which stated: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact of the conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."
Another version of CALCRIM No. 316, Alternative B, states: ["If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable."] (Italics added.) Defense counsel did not request that this version of CALCRIM No. 316 be given to the jury and the trial court did not give it to the jury.
In cross-examination and argument, defense counsel noted R. and Jennifer were prostitutes and that R. had lied to police about being a prostitute. However, counsel did not directly assert their roles as prostitutes diminished their credibility. Instead, counsel emphasized the number of lies R. admittedly told police and suggested she was continuing to lie at trial. More particularly, counsel argued police would not have treated her differently because she was a prostitute and that she had no valid reason to lie to them.
B. Analysis
1. Effectiveness of Counsel
On appeal Viltz contends that in failing to request the jury be given CALCRIM No. 316, Alternative B, his trial counsel was ineffective. Viltz argues the broader version of CALCRIM No. 316 would have given counsel an important opportunity to use their role as prostitutes to attack their credibility. More generally, Viltz contends that trial counsel's failure to directly attack R.'s and Jennifer's credibility because they were prostitutes was ineffective representation. We find no defect in counsel's performance.
a. Legal Principles
"An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]...
"To establish prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.] In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality, " not simply speculation as to the effect of the errors or omissions of counsel.' [Citation.]
"In determining whether counsel's performance was deficient, we exercise deferential scrutiny. [Citations.] The appellant must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citation.]
"Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" ' [Citation.]
" 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.]' [Citation.]
"Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. [Citations.] " (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1148.)
b. Counsel's Performance Was Adequate
First where, as here, the trial court gave CALCRIM No. 226, we do not accept the premise that also giving either version of CALCRIM No. 316 will damage the credibility of a felon or other criminal. Both versions of CALCRIM No. 316 caution the jury that a felony or other crime does not necessarily destroy or impair a witness's credibility and the cases have viewed them as limiting instructions. (See People v. Hawkins (1995) 10 Cal.4th 920, 942, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) CALCRIM No. 226, which plainly covers prostitution and was provided to the jury, contains no such caution. Thus on their face, both versions of CALCRIM No. 316 are more favorable to witnesses who are felons or criminals than CALCRIM No. 226 alone, and it is conceivable trial counsel did not want to give R.'s and Jennifer's prostitution the more cautionary treatment provided by Alternative B of CALCRIM No. 316.
In any event, the record shows obvious tactical reasons trial counsel did not want to directly rely upon prostitution as a means of impeaching R. and Jennifer, either by requesting Alternative B of CALCRIM No. 316 or by directly connecting their credibility and their prostitution during trial. There was substantial evidence R. was the victim of a violent assault which would on its own engender sympathy for her. More importantly, in addition to suffering the assault, R. testified she lied to police in part because felt that as a prostitute the police did not take the assault seriously. As we have noted, defense counsel attempted to attack this aspect of R.'s testimony as unfounded and argued that R. had no real reason to lie to police about the fact she was a prostitute. Any direct or forceful use of prostitution as a means of impeaching the women was inconsistent with this line of attack and ran the clear risk of reinforcing R.'s claim she was treated unfairly.
Given there was no dispute R. and Jennifer were prostitutes and were engaged in prostitution at the time of the alleged crimes, in electing to only use R. and Jennifer's role as prostitutes indirectly, counsel made a clear tactical choice to remind the jury about their occupation without running an undue risk of engendering sympathy for R. Where, as here, the record shows counsel was confronted with a difficult and nuanced tactical decisions, the law is clear we may not second guess counsel's choice. (People v. Montoya, supra, 149 Cal.App.4th at pp. 1147-1148.) Thus in declining to request Alternative B of CALCRIM No. 316 and in only indirectly referring to their prostitution during trial, counsel was effective.
Even if we were inclined to criticize counsel's performance, which we are not, his tactical choice in no manner prejudiced Viltz. The jury was repeatedly reminded by virtually all the witnesses in the case that R. and Jennifer were prostitutes and R. conceded she lied to police about being a prostitute and about being forced to get in Viltz's car. Given those circumstances, neither the use of Alternative B of CALCRIM No. 316 nor any more direct reference to R.'s and Jennifer's prostitution activities would have materially altered the jury's view of their credibility.
2. No Sua Sponte Duty to Instruct on Alternative B of CALCRIM No. 316
In addition to arguing his trial counsel was ineffective in failing to request Alternative B of CALCRIM No. 316, Viltz argues the trial court had a sua sponte to give the instruction. We find no error.
Once again, Viltz misapprehends the role of CALCRIM No. 316, where, as here, the jury has been given CALCRIM No. 226. CALCRIM No. 226 advised the jury it could use R.'s and Jennifer's criminal conduct in evaluating their credibility. Alternative B of CALCRIM No. 316 would only have added a caution that such conduct might not entirely undermine their credibility. Where, as here, there has been no request for such a cautionary instruction, there is no sua sponte duty to give one. (See People v. Hawkins, supra, 10 Cal.4th at p. 942; People v. Collie (1980) 30 Cal.3d 43, 64; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1051, 1052; People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278.) Contrary to Viltz's argument, the fact that, by way of Alternative A of CALCRIM No. 316, a cautionary instruction was given with respect to Viltz's status as a felon, did not warrant that such a cautionary instruction be given sua sponte with respect to R. and Jennifer's testimony.
III
As we have noted, in addition to finding Viltz guilty of forcible oral copulation and rape, the jury found that in committing those offenses Viltz had, in three respects, acted in a manner which made him subject to the one strike law, section 667.61, to wit: aggravated kidnapping for the purpose of rape (§ 667.61, subds. (a), (c), (d)(2)), tying and binding (section 667.61, subdivisions (a), (c) and (e)(6), and use of a deadly weapon (§ 667.61, subds. (a), (c), (e)(4).) Viltz contends the People did not present sufficient evidence with respect to these one strike findings. We disagree.
In reviewing a sufficiency of the evidence claim, the court must consider the whole record and determine whether the record contains substantial evidence of each of the essential elements of the offense or true finding. (People v. Johnson (1980) 26 Cal.3d 557, 577.) Substantial evidence to support a verdict is "evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Id. at p. 578.) For a judgment to be set aside for insufficiency of the evidence, it must clearly appear that upon no hypothesis is there sufficient substantial evidence to support a conviction or finding. (People v. Redmond (1969) 71 Cal.2d 745, 755.) As we explain, under this standard of review there is ample evidence in the record to support each of the one strike findings.
A. Aggravated Kidnapping
1. Legal Principles
Kidnapping for the purpose of robbery or sex offenses is aggravated kidnapping. (People v. Martinez (1999) 20 Cal.4th 225, 232.) In People v. Rayford (1994) 9 Cal.4th 1, 12, the California Supreme Court adopted a two-prong test (Rayford/Daniels test) for determining when the movement of the victim is sufficient to establish aggravated kidnapping: (1) the movement of the victim must not be merely incidental to the underlying crime, and (2) the movement must substantially increase the risk of harm to the victim above and beyond that inherent in the underlying crime. (Id. at pp. 12-14, citing People v. Daniels (1969) 71 Cal.2d 1119.)
A number of cases have applied the Rayford/Daniels test. In People v. Diaz (2000) 78 Cal.App.4th 243, 248-249 (Diaz), the defendant pushed the victim to a grassy area immediately next to a sidewalk, in full view of a major street. He then moved the victim up a stairway, around the back of a building, to a dark area at 150 feet away. The court held that although the first movement was merely incidental to the rape, the second movement amounted to kidnapping: "We note the present case provides a good illustration of the distinction between incidental and nonincidental movements. Before the interruption by the passerby, defendant had attacked the prone victim on a grassy strip immediately adjacent to the sidewalk, in full view of a major urban street. The movement from the sidewalk to the grassy strip could easily be characterized as incidental, in that it effected no substantial change in the surroundings, and may have been a short distance from where the defendant first made contact with the victim. However, the forcible movement of the victim into the darkened park and behind a large building was properly found by the jury to have been more than incidental to the sexual assault." (Diaz, supra, 78 Cal.App.4th at p. 248.)
The holding and rationale in Diaz is consistent with other cases which have found that although defendants moved victims of sexual assaults relatively short distances, they were nonetheless guilty of aggravated kidnappings. In particular, in People v. Shadden (2001) 93 Cal.App.4th 164, 169 (Shadden), defendant moved the victim nine feet from the front of a video store to a small backroom where he closed the door and attempted to rape her. In rejecting the defendant's contention the movement was only incidental to the attempted rape and insubstantial, the court stated: "But 'a rape... does not necessarily require movement to complete the crime.' [Citation.] Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape. [Citations.] Shadden pulled off Christa M.'s panties and pulled down his zipper after he dragged her to the back room and shut the door. The jury could reasonably infer that the movement was not incidental to the attempted rape because Shadden only began the sexual attack after he moved her. [Citations.]
"The court instructed with CALJIC No. 9.54 which defines substantial distance for aggravated kidnapping as being 'more than slight, brief or trivial.' Where movement changes the victim's environment, it does not have to be great in distance to be substantial. [Citation.] Shadden slugged and dragged Christa M., nine feet from an open area to a closed room. From these facts the jury could reasonably infer that the distance was substantial for Christa M. and it changed her environment. [Citation.]"
In determining whether there was a substantial increase in the risk of harm, the trial court should consider " 'such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes....' " (People v. Martinez, supra, 20 Cal.4th at p. 233; People v. Rayford, supra, 9 Cal.4th at pp. 13-14.)
In finding the second movement of the victim substantially increased the likelihood of harm to her, the court in Diaz stated: "Clearly, the risk to the victim in the dark and isolated location of the attack increased significantly as compared to the lighted sidewalk near the bus stop where the incident began." (Diaz, supra, 78 Cal.App.4th at p. 249.) In Shadden the court found the nine-foot movement within the confines of the video store nonetheless substantially increased the likelihood of harm: "Shadden contends that the second element was not present because he did not increase Christa M.'s risk of harm by moving her a short distance in the store. But where a defendant moves a victim from a public area to a place out of public view, the risk of harm is increased even if the distance is short." (Shadden, supra, 93 Cal.App.4th at p. 169.) In People v. Salazar (1995) 33 Cal.App.4th 341 (Salazar), we also found increased likelihood of harm, although the victim was moved a very short distance: "Any determination of the increase in the risk of harm involves a comparison of the victim's physical location before and after the asportation. Here, Maria was initially crouched down on the exterior walkway which overlooked the motel parking lot and a city street. On the walkway, Maria was potentially visible to, and within hearing distance of, motel patrons, employees, and even the general public. From this location, Salazar dragged her into the privacy and seclusion of a motel room and shut the door. Once inside the room, the likelihood of anyone detecting Salazar decreased dramatically. Moreover, in the confinement and isolation of the motel room, Salazar had Maria in a vulnerable position from which he had an enhanced opportunity to perpetrate any additional crimes he desired." (Salazar, supra, 33 Cal.App.4th at p. 348, fn. omitted.)
2. R.'s Movement Was Substantial and Increased the Danger to Her
R. testified that before she and Viltz left the first location, Viltz tied and bound her hands and drove several minutes to the second location, where she was first forced to orally copulate him and he then raped her. She described the second location as dark and isolated, a place where it seemed Viltz was going to kill her. R.'s testimony was more than sufficient to show that she was moved a distance that was not needed to rape her and that the movement substantially increased the danger to her. The fact that Viltz testified that she voluntarily got into Viltz's car near El Cajon Boulevard and later told police that she was not afraid at the first location, does not alter the fact that thereafter Viltz's movement of her was involuntary, unneccesary to commit a rape, and dangerous to her. Thus, the record fully supports the jury's finding Viltz committed an aggravated kidnapping within the meaning of section 667.61, subdivisions (a), (c), (d)(2).
B. Tying and Binding
We also reject Viltz's contention there is insufficient evidence that during the oral copulation and rape he tied and bound R. within the meaning of section 667.61, subdivision (a). While it is true Viltz untied R. so that she could orally copulate him and he could rape her, that fact did not prevent the jury from concluding that the tying and binding was used as a means of facilitating the sex crimes. In particular, we note that after the oral copulation and rape, Viltz tied and bound R. again. Given this record, the jury could easily conclude, and no doubt did, that the tying and binding was used to effect Viltz's overall control of R. and hence was used as means of committing the sex crimes. (Compare People v. Masbruch (1996) 13 Cal.4th 1001, 1011, continuing firearm use not needed to prove that firearm used to commit rape, initial display sufficient needed.)
C. Deadly Weapon
We also reject Viltz's contention the pellet gun he used was not a deadly or dangerous weapon within the meaning of section 667.61, subdivision (e)(4), by way of its specific reference to section 12022. As Viltz acknowledges, our courts have consistently found that a pellet gun or unloaded firearm qualifies as a deadly or dangerous weapon within the meaning of section 12022 and other statutes. (See In re Bartholomew D. (2005) 131 Cal.App.4th 317, 327; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 539-541; In re Arturo H. (1996) 42 Cal.App.4th 1694, 1697-1698; People v. Schaefer (1993) 18 Cal.App.4th 950, 951-952; People v. Montalvo (1981) 117 Cal.App.3d 790, 807; People v. Burns (1969) 270 Cal.App.2d 238, 254; People v. Sherman (1967) 251 Cal.App.2d 849, 857.) We see no reason to depart from this persuasive authority. As the court in In re Bartholomew D. stated: "We are convinced that a pellet gun is a dangerous weapon under section 12022, subdivision (b), as a matter of law because it is dangerous to others in the ordinary use for which it was designed. Unlike a toy gun, which is designed for play and is incapable of shooting a projectile, or a starter pistol, which is not designed to release a projectile but to make a loud noise to signal the beginning of a race, a BB gun is not an imitation gun. It is an instrument designed to shoot by expelling a metal projectile at a target, is commonly recognized as such, and thus, as Arturo H. observes, is reasonably perceived as capable of inflicting serious injury. (In re Arturo H., supra, 42 Cal.App.4th at p. 1698.) Indeed, the victim here perceived the instrumentality as 'a semiautomatic handgun.' He testified he was certain it was a handgun; that it was semiautomatic and not a revolver. It was without question a real gun. And, in fact its appearance provoked the desired reaction: submission to appellant's criminal enterprise and demands. In short, the BB gun wielded by appellant was by design a weapon, and its use to expel a projectile supports the section 12022, subdivision (b) enhancement, even in the absence of evidence of its capacity to be used in a dangerous manner." (In re Bartholomew, supra, 131 Cal.App.4th at p. 326, fn. omitted.) As in In re Bartholomew, here the pellet gun was perceived by R. as a weapon which could kill her and it effectively permitted Viltz to control her. Moreover, it was unquestionably a weapon that could discharge projectiles. Thus, as in In re Bartholomew it was a dangerous weapon.
Because the record supports each of the one strike circumstances found by the jury, we need not and do not consider Viltz's contention that the trial court improperly used the pellet gun finding for both the one strike sentence on the sex offense counts and in imposing a determinate life sentence on the kidnapping count.
IV
Next, Viltz contends the trial court erred in giving him consecutive sentences for the forced oral copulation and rape counts under sections 667.61, subdivision (i), and section 667.6, subdivision (d). We find no error.
Consecutive sentences for enumerated sex offenses is required by section 667.61, subdivision (i), where the crimes "involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." Section 667.6, subdivision (d), in turn states: "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, Viltz had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither duration of time between the crimes, nor whether or not Viltz lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."
"Our Supreme Court has recently summarized case law construing the 'separate occasions' requirement of section 667.6, subdivision (d) as follows: 'Under the broad standard established by... section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location. Thus, the Court of Appeal herein cited People v. Irvin (199[6]) 43 Cal.App.4th 1063, 1071, for the principle that a finding of "separate occasions" under... section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: "[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter." Similarly, the Court of Appeal in People v. Plaza (1995) 41 Cal.App.4th 377, 385, affirmed the trial court's finding that sexual assaults occurred on "separate occasions" although all of the acts took place in the victim's apartment, with no break in Viltz's control over the victim. [Citations.]' (People v. Jones, supra, 25 Cal.4th 98, 104-105.)" (People v. Garza (2003) 107 Cal.App.4th 1081, 1091-1092.) Here, between the time Viltz was orally copulated while sitting in the car and the time he got out of the car and raped R., he plainly had an ample opportunity time to reflect on his actions and nevertheless resumed his assaultive behavior. (Ibid.) Thus, consecutive sentencing for the oral copulation and rape convictions was lawful.
V
Finally, Viltz argues the three consecutive life sentences he received for the crimes he committed were so disproportionate to the nature of his offenses and his criminal history, that they constitute cruel and unusual punishment under the state and federal constitutions. (Art. I, § 17, Cal. Const., Eighth Amend., U.S. Const.) We find no constitutional defect.
Viltz committed multiple violent sexual assaults on a vulnerable 20-year-old woman and held her for ransom, terrorizing not only her but her friend and her mother-in-law. He has a lengthy history of assault and other criminal conduct. Moreover, the life sentence he received for each of the instant offenses crimes is not disproportionate to the way those crimes are punished in California or in other jurisdictions. Given these circumstances, there is no basis upon which to find that the sentence he received was cruel or unusual under either the state or federal Constitutions. (See People v. Dillon (1983) 34 Cal.3d 441, 477-478; In re Lynch (1972) 8 Cal.3d 410, 423-424; Lockyer v. Andrade (2003) 538 U.S. 63, 66-68 [123 S.Ct. 1166].)
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J.McINTYRE, J.