Opinion
H024430.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN PEREZ BADILLO, Defendant and Appellant.
Defendant Stephen Perez Badillo appeals from a judgment of conviction of assault with intent to commit rape (Pen. Code, § 220)[] (count 1 involving Sheila Doe), forcible sodomy (& sect; 286, subd. (c)(2)) (count 2 involving Christina Doe), and infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 4 involving Christina Doe). The jury found him not guilty of forcible rape (count three involving Christina Doe). The court sentenced defendant to a prison term of 11 years, consisting of a principal term of six years on the sodomy conviction, a consecutive full term of four years on the assault with intent to commit rape conviction, and a consecutive term of one year on the conviction of infliction of corporal injury on a cohabitant.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant raises multiple contentions. In addition to the appeal, defendant filed a petition for writ of habeas corpus, which we considered with the appeal. We find no merit to defendants claims on appeal except with regard to sentencing. In a separate order filed this day, we deny the petition. (See Cal. Rules of Court, rule 24(b)(4).)
A. Factual Background
Sheila Doe testified she was 39 years of age and had known defendant for a while. After she met him, she would visit him at the room he rented and they would play video games, drink beer, and talk and listen to music. Sheila had told him that she just wanted to be friends.
She recalled being at defendants place on December 30, 1999 and staying until the next day. They drank, played video games, and talked. According to Sheila, sometime on the morning of December 31, 1999, they decided to get a motel room because she was not allowed to smoke cigarettes in the house where defendant lived. On the way to the motel room, they got some liquor. At the hotel room, they drank beer and listened to music and then bought more liquor at a store down the street. They bought a lot of beer, maybe a case, and she thought they might have bought Bacardi. They "started drinking more and more" and they used cocaine too.
At around 5:15 or 5:30 p.m., she began to feel nervous around defendant. Sheila testified that defendant indicated that he wanted to have sex with her. She told him that she did not and she thought they had an agreement that they were just friends. She began emptying her drinks and watering them down in the bathroom. She thought defendant had begun acting weird and his mood had changed. Sheila told defendant that she was going to leave at a certain time.
According to Sheila, they had the cab take them back to the liquor store and, while defendant was in the store, she instructed the cab driver to pick her up at a particular time and took the drivers card. She testified that when the cab arrived, she was in the bathroom and defendant told the cab to leave.
Sheila testified that she tried to discreetly make phone calls because she was scared. She called her friend Eddie, who said he could not come get her. She telephoned her friend Reyna but hung up after talking for about a minute because defendant was angry. She then tried to call her mom but defendant took away the phone. Sheila indicated that she was "talking in code" to her friends because she was scared and wanted to leave but defendant did not want her to leave.
Sheila testified that defendant put a chair in front of the door. He said that "he was going to get it because I was giving it to everybody else so he was going to take it." He tried to take off her clothes. She started fighting him, trying to pull her shirt down and keep her pants up. Defendant was both bigger and stronger than Sheila.
Sheila indicated that, at some point, defendant pushed her down on the bed and laid over her sideways and pinned her. She tried to scream but nothing came out. Everything happened fast and she struggled with him. He sat on her stomach. Her pants and underwear were down to her knees and defendants penis was exposed. She screamed and defendants hands were around her neck.
Sheila testified that when she looked defendant had gotten off her. She ran outside and knocked on doors and windows, asking for help. When she came to an open door, she saw a man and asked him to call police. He offered to let her use the phone. She called the police.
Sheila stated that the police came right away. She recognized photographs as pictures of herself from that night. One showed her wearing torn sweatpants, which had torn during her struggle with defendant. In regard to a photograph focusing on her hands, Sheila stated defendant had grabbed her and held her wrists in a hurtful way and had held both of her hands up over her head with one hand. She testified regarding her response at that time: "I was wriggling my waist down trying to get him off of me the best I could with my knees and legs." They wrestled on the bed for about 20 minutes. In regard to a photograph showing her neck, she indicated that she had some pain in her throat from defendant holding her neck and that defendant had left some prints.
On cross-examination, Sheila admitted that she and defendant got into an argument about money on December 31, 1999 and they both probably raised their voices.
San Jose Police Officer Manual Sarmento testified that, on December 31, 1999 at 6:02, a 911 call was received and he was dispatched to a hotel room concerning a possible attempted rape. He spoke with Sheila, who was crying, sobbing, and distraught. Officer Sarmento noticed some redness around Sheilas throat area and observed that "[h]er sweatpants looked like they had been recently ripped." A photograph taken that evening showed both legs of her pants had been ripped.
Officer Sarmento testified that Sheila had told him that she was over at defendants residence most of December 30, 1999 and they had been drinking beer and playing computer games most of the night. She had told the officer they had left about 6 a.m. and checked into a motel room. She had said that they watched TV and drank beer in the room and then had taken a cab to buy more beer. Sheila had told the officer that she had stayed in cab while defendant bought the beer and had asked the driver for his business card so she could call for a ride home later. Officer Sarmento testified that Sheila told him that they returned to the motel room and used cocaine. She had reported that at about 5:15 or 5:30 that evening she became afraid of defendant and tried to call friends for a ride. She had told him she first called Eddie but "was being vague on the phone because the defendant was real close by." Sheila had told the officer that she then called Reyna but did not finish the conversation because defendant asked her to hang up. Sheila had stated that then she tried to call for a cab but the defendant took the phone away from her.
Officer Sarmento testified that Sheila had said that defendant removed his shirt, sat next to her on the bed, pushed her back onto the bed, straddled her, held her wrists above her head, and pulled down his shorts and underwear. Sheila had told him that defendant had placed his forearm across her neck and began pulling down her sweatpants and she had tried to push him off. Sheila had said that defendant also put his hand around her throat. Sheila had reported that defendant, who was straddling her stomach, began pulling down her panties and she felt his penis on her stomach. Sheila had stated that she warned defendant that she was going to scream if he did not stop and, when he did not stop, she screamed and defendant got off her.
Officer Sarmento testified that Sheila had told him that she had only known defendant for two months. He could not recall Sheila telling him that defendant had blocked her exit with a chair. She never told him that a taxicab came to the hotel but defendant sent it away.
Christina Doe testified that she met defendant at a dancing club in about January or February, 2001. They went out together for about two months and had a sexual relationship. She would stay over at his studio apartment two or three nights per week. At some point, defendant moved to a motel and Christina moved into his room for about five days.
According to Christina, she "stayed completely intoxicated with alcohol that whole week" at the motel. She indicated she had been drinking vodka, at least a fifth a day, and taking tranquilizers and was "completely out of it . . . ." On cross-examination, she stated that she only took pills the last day she was there.
Christina described an incident during those five days in which defendant beat her when she tried to walk away from the motel. According to Christina, defendant made her get into his truck, grabbed her by her hair, and "started pounding" her face. She testified that they "took a long drive with a series of beatings at each stop sign." She stated that he hit her face, head and back, which left her with a "[b]usted lip, black eye, bruises, forehead, side." She explained that when they returned to the motel, she "started running from him and he caught [her], grabbed [her] by the hair and drug [sic] [her] back."
Christina also testified regarding a subsequent incident in the truck on August 29, 2001. She and defendant were arguing and defendant was beating her. She acknowledged that she had told defendant that she was crying because he had sodomized her. Christina described her injuries as including a "[b]usted lip, black eye, bruised forehead," and an abrasion on her nose. She admitted that she had hit, slapped, scratched, and kicked defendant and pulled his hair. According to Christina, she jumped out when defendant stopped the truck and he chased her. Christina recalled screaming to a lady walking nearby to call the police. The police arrived and Christina spoke with a female police officer. She recalled telling the officer that defendant had sodomized her earlier that day. Officer Marquez took Christina to Valley Medical Center. Her injuries were not examined at the medical center because Christina "got scared" and ran out.
Christina testified that defendant sodomized her during their time at the motel. At one point, she seemed to indicate that defendant sodomized her before the first truck incident. She also indicated that she told Officer Marquez that it occurred more than once. She later testified that defendant did not sodomize her in the motel room "on more than one occasion" and, on cross-examination, she agreed that the only time she had "anal intercourse" was the morning of the day she spoke to Officer Marquez. Subsequently, on cross-examination, Christina was asked whether she had told Officer Marquez that she had been sodomized four times and stated she did not recall but she had told the officer the truth. Christina agreed that defendant never forcibly penetrated her vagina. She also acknowledged that she had never been physically beaten inside the hotel room.
Christina indicated that she did not want to engage in sodomy but defendant made her do it "by not stopping" and it was against her will. When asked if he used physical force, Christina answered: "I dont know. I dont remember." When asked if she had been afraid he might hurt her if she did not do it, she replied, "I dont remember." She testified that she had not consented to the sodomy but, when asked whether it was something defendant forced, Christina stated, "It just happened." She stated: "I wasnt physically attacked during the sodomy. I was drunk and felt that, but I was never held down by my hair or beaten during the time that that happened." When asked how she tried to prevent defendant from sodomizing her in the motel room, Christina stated that she "just asked him not to" but he did not stop. She agreed that one of the reasons she could not remember if she had been forced was that she had been drinking.
Christina indicated that she had told Officer Marquez that earlier in the relationship she and defendant had consensual sex but he had been forcing her against her will during about the previous week. Christina was asked, "Did all of the drinking that you were doing that past week or so of the relationship when it got more abusive, did all of that drinking make it more difficult for you to fight back?" Christina responded, "I still dont know, with my memory of being so intoxicated, whether or not I was forced." She was then asked whether her memory of what happened to her that last week of their relationship was more fresh when she spoke with Officer Marquez. Christina answered, "I was so drunk and out of it that I doubt it."
Officer Marquez, a San Jose police officer, testified that she was dispatched to a 911 call on August 29, 2001. She spoke with a woman named Christina, who appeared extremely upset and frightened and was crying. The officer noticed that Christina had severe swelling over the right eye that was causing her eyelid to droop over the eye and bruising. The officer could smell alcohol on Christina.
Officer Marquez testified that Christina had indicated that defendant had forcibly sodomized her on August 29, 2001. She had initially told Officer Marquez that defendant had sodomized her "too many" times that day and had later stated he had sodomized her four times that day. She told the officer that they had been together the entire day of August 29, 2001. She had also told the officer that defendant had forced her to have vaginal intercourse against her will over the past few weeks. Christina had also indicated that she had not fought back more or tried to get away from defendant when he was forcing sex on her because it was easier on her to comply.
Officer Marquez indicated that Christina had said that, while sodomizing her, defendant had "held her head down by her hair" and threatened to hit the back of her head with a closed fist until she stopped resisting. Christina had indicated that she was afraid defendant would kill her. Officer Marquez testified that Christina had indicated that defendant had used a closed fist to physically force sex. Christina had told the officer that, when they had been driving around in the truck, she had been very upset that defendant had sodomized her. Christina had told the officer that defendant had been very upset with her for complaining and had yelled at her. Christina had told Marquez that defendant drove very aggressively and told her "he had to finish her off." Marquez testified that Christina had stated that defendant would not let her leave and was grabbing her by the throat and hair when she tried to get out of the truck.
Officer Marquez stated that Christina left the medical center without going through a SART exam. Christina, who had already expressed a concern about being charged for the examination before getting to the hospital, became upset about language in the consent form holding her financially liable. The officer tried to explain it did not apply to her. Christina was also upset by part of the paperwork that applied to inmate booking and the officer "tried to explain that everything was basically for her benefit." Christina, who still smelled of alcohol, yelled at Officer Marquez and accused the officer of lying more than once. Christina ran toward the emergency exit doors, still yelling, pounded on the doors, and ran out of the hospital.
A woman testified that on August 29, 2001, when driving home, she saw a truck in front of her house parked at an unusual angle. A man, whom she identified as defendant, was sitting in the drivers seat and a woman was in the passengers seat. The witness recalled that it appeared the woman was struggling and moving toward the door to exit but defendant had his arms around the womans upper body and was preventing her from leaving the truck. The witness parked her car and began walking toward her house. The witness asked the woman, who had gotten out of the truck and looked distraught and upset and had a dark bruise on her left eye, if everything was okay. The upset woman responded that "she had just been assaulted, to call 911." The witness went into her home and called 911. She flagged down another police officer before the dispatched officer arrived.
Hilda Doe testified that defendant had sexually assaulted her in July 1990. She had gone to a quinceanera party with a friend Sandra. She had met and danced with defendant. She remembered drinking beer at the party and estimated that she had about three beers. As the party was ending, defendant asked Hilda and Sandra to join in an after-hours party. Defendant, Hilda, Sandra, and another man, Ruben, went to the party in Rubens car. During the car ride, defendant was trying to kiss Hilda, with whom he was sitting in the back seat, and to touch her breasts. Hilda told him "no" more than once and pushed him away.
Hilda testified that when they arrived, Sandra and Ruben went into the trailer and Hilda and defendant remained outside against the car. Defendant tried to kiss Hilda and she pushed him away. Hilda recalled that the next thing she knew, she was in some bushes. Her shoes, nylons, and underwear were off, defendant was on top of her, and she felt discomfort in her vagina. She screamed and Sandra came outside.
Hilda recalled that they all went into the trailer and Hilda was very upset. She had not wanted to have sex with defendant that night and had tried to tell him "no." Hilda told Sandra to give her a few minutes to talk to defendant. She remembered breaking a glass mirror and dropping a TV because she was angry with defendant. She also slapped defendant several times. Hilda testified that she had never had sexual intercourse before the night of the dance.
Hilda testified that she spent the night at Sandras house and was upset and crying. She called the police. She then went home. At some point, Hilda talked with a sister in North Carolina and a rape crisis counselor. She was subsequently examined at Santa Clara Valley Medical Center but she had already showered. After leaving the trailer and before going to the hospital, Hilda had experienced pain in her vaginal area and in her face, which had bruises. She told a police officer that she could not remember what had happened but she believed she had been raped.
Linda Richards, a SART coordinator and nurse, testified regarding a SART report that was part of the SART examination records in her custody. The report showed Hilda stated the assault occurred on July 15 at 1:00 a.m. and, at the time of the examination, she indicated that she "hurt all over." The reported noted bruises on her right upper lip, bicep of her left arm, left elbow, lower left abdomen, and her front right thigh. Her left hand had "some scratches, abrasions and bruises" and hurt when touched. The examining nurse had noted that the vaginal walls were red and inflamed. Richards testified that red vaginal walls "would be consistent with intercourse without sufficient lubrication . . . ." She testified that the examining nurse had concluded that the exam was consistent with the history given by Hilda.
Hildas friend Sandra testified regarding the 1990 quinceanera dance. She recalled that she was about 20 years old and Hilda was about 21 years old at the time. They had some beers and she observed defendant and Hilda dancing. They were invited to an "after-party" by defendant and his friend Ruben and, during the drive to the "after-party," Sandra observed "defendant over Hilda, kissing her" and Hilda, saying, "No, no." When Hilda got out of the car, she was talking to Sandra and hugging defendant. Sandra saw defendant trying to kiss Hilda and Hilda pushing him away and then she and Ruben went into the trailer. When she heard Hilda screaming and crying, she went outside to investigate. Sandra saw Hildas hair was in disarray and had leaves in it, Hilda was trying to pull her clothes up, and she was "crying frantically." Hilda told Sandra that defendant had raped her.
According to Sandra, Hilda was saying to defendant "over and over again, `Dont you know what no means?" Hilda yelled at the defendant, "`I cant believe that you did this. I said no. "Sandra testified that Hilda slapped defendant and "he turned around and he slapped her." Hilda went into the bathroom and defendant was telling Sandra to take Hilda home. Defendant went into the bathroom and Hilda told Sandra she wanted to talk to defendant for five minutes. Sandra asked if she was okay and Hilda answered "yes" but was crying. She heard glass shatter. When Hilda came out of the bathroom, there was a lot of yelling and screaming. Sandra remembered that Hilda picked up a TV that was on and threw it to the side in an effort "to get him to listen to her."
Sandra testified that she and Hilda went to her house and spent the night. While Hilda was there, she was crying a lot.
B. Courts Response to Jury Question Regarding Prior Sex Offense Convictions
About 20 minutes after the jury had commenced its deliberations, it submitted several questions to the court. The jury inquired, among other things: "`If the defendant had a prior conviction of sexual assault/rape, would we have been allowed to know this fact? " The record indicates that the court and counsel agreed that the jury would be given the following response:" Not necessarily. Whether you would learn of the prior conviction depends on a variety of factors." The judges handwritten note to the jury appears to state: "Not necessarily. Whether you would learn of a prior conviction if one depends on a variety of factors." (Italics added.)
The court had previously instructed the jury: "You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. [¶] You must not independently investigate the facts or the law or consider or discuss facts as to which there is no evidence." The court defined evidence, including both direct and circumstantial evidence. The court also told the jury that it must not be influenced by conjecture. In addition, the court told the jury to "[c]onsider the instructions as a whole and each in light of all the others."
Defendant argues that the courts response to the jurys question "improperly and falsely suggested that [he] had a prior sex crime conviction." He suggests that the court should have told the jurors that he had no "prior sex-related convictions" and cautioned them to decide the case only on the evidence presented. Defendant states: "Where the trial court issues an instruction improperly suggesting the existence of prior convictions kept out of evidence, the error implicates the fundamental trial rights ensured by the Fourteenth Amendments due process clause." He asserts, citing People v. Delgado (1993) 5 Cal.4th 312, that such error is reversible unless harmless beyond a reasonable doubt.
In People v. Delgado, supra, 5 Cal.4th 312, the Supreme Court considered whether the courts ex parte communication with the jury was prejudicial and stated: " Although such communications violate a defendants right to be present, and represented by counsel, at all critical stages of his trial, and thus constitute federal constitutional error, reversal is not required where the error can be demonstrated harmless beyond a reasonable doubt. [Citation.]" (Id. at p. 330.) In this case, there is no ex parte judicial conversation at issue.
The People contend that defendant waived any claimed trial error by concurring in the courts response. They further contend that the courts response did not constitute error and, even if error, it was harmless.
Assuming arguendo that defendants contentions were not waived, we conclude the courts response was not federal constitutional error. Defendant asserts that the courts response was legally inaccurate because "it invite[d] the jury to consider prior convictions kept out of evidence, while also failing to remind them to consider only the evidence presented at trial." We disagree. There was no misstatement of law in the courts response to the jurys hypothetical question. The courts answer did not insinuate that defendant had previously been convicted of any sexual offense; to the contrary, the written response indicated the existence of such prior convictions was not a known fact. While we agree that the court optimally would have reiterated its previous instructions to consider only evidence received in the trial and not to be influenced by conjecture, the jury did receive such instructions as part of the courts charge the day before.
Ordinarily, instructions affecting the substantial rights of a defendant require no objection for appellate review. (§ 1259.) However, error may be invited error "if counsel made a conscious tactical choice." (People v. Cooper (1991) 53 Cal.3d 771, 831.) "A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel." (Ibid.) "The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction. [Citations.] [The Supreme Courts] cases do not [explicitly] address, however, whether a defendants approval of a courts instruction . . . is equivalent to a request." (People v. Lucero (2000) 23 Cal.4th 692, 723-724.) However, they seem to suggest that defense counsel waives any objection by affirmatively consenting to a courts instruction. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1134; see also People v. Delgado, supra, 5 Cal.4th at p. 331.)
However, "[i]t is error for a court to give an `abstract instruction, i.e., `one which is correct in law but irrelevant[.] [Citation.]" (People v. Rowland (1992) 4 Cal.4th 238, 282.)" [I]n most cases the giving of an abstract instruction is only a technical error which does not constitute ground for reversal. [Citation.]" (Ibid.)
Even if the courts response constituted error, it was not of federal constitutional dimension. Nothing in the record provides any indication that the jury understood the courts response as indicating that defendant had previously been convicted of a sex offense or that the jury failed to follow the courts instruction requiring it to decide all questions of fact from only the evidence received at trial. "[T]he general rule is that on appeal we must assume the jury followed the courts instructions and admonitions. [Citations.]" (People v. Frank (1990) 51 Cal.3d 718, 728; see People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Any error was harmless under the Watson standard given the instructions and record as a whole. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Breverman (1998) 19 Cal.4th 142, 173-176.)
Defendant further argues that his defense counsel provided ineffective assistance by failing to object to the courts response to the jurys question and by failing to ask for further admonition. "Defendant has the burden of proving ineffective assistance of counsel. (People v. Malone (1988) 47 Cal.3d 1, 33 [252 Cal.Rptr. 525, 762 P.2d 1249].) To prevail on a claim of ineffective assistance of counsel, a defendant `"must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." (People v. Hart, supra, 20 Cal.4th at p. 623.) . . . [P]rejudice must be affirmatively proved; the record must demonstrate `a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694 .)" (People v. Maury (2003) 30 Cal.4th 342, 389.) Our careful review of the appellate record does not reveal such prejudice.
C. Failure to Define "Force" in Regard to Sodomy
The court instructed the jury in regard to the alleged sodomy offense: "Every person who participates in an act of sodomy when the act is accomplished against the victims will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the alleged victim, or by threatening to retaliate in the future against the alleged victim and there is a reasonable possibility that the perpetrator will execute the threat, is guilty of the crime of unlawful sodomy in violation of Section 286, subdivision (c)(2) of the Penal Code."
The court instructed the jury that battery was a lesser crime to that of assault with the intent to commit rape charged in count one and infliction of corporal injury on a cohabitant charged in count four. The court defined the crime of battery and stated the requisite elements, including the use of force or violence upon another person. The court defined "force" and "violence": "As used in the foregoing instruction, the words `force and `violence are synonymous and mean any unlawful application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark, even though only the feelings of such person are injured by the act. The slightest unlawful touching, if done in an insolent, rude, or an angry manner, is sufficient." (Italics added.)
Defendant argues that the term "force" as used to define the crime of sodomy has a technical meaning not commonly understood and, therefore, the trial court had a sua sponte duty to explain that term. He cites People v. Cicero (1984) 157 Cal.App.3d 465, in which defendant contended there was insufficient evidence to support the trial courts finding that he committed the charged lewd acts by force and the court construed the term "force" as used in section 288, subdivision (b) (forcible lewd and lascivious act upon a child under the age of 14). (People v. Cicero, supra, 157 Cal.App.3d at pp. 469, 471.) In Cicero, the court concluded that the "force" meant "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself. [Citation.]" (People v. Cicero, supra, 157 Cal.App.3d at p. 474.)
Defendant further contends that, under the circumstances of this particular case, the court had a duty to define "force" in regard to sodomy to prevent the jury from erroneously relying on the broader definition of force provided by the court in regard to the lesser included offense of battery. He asserts that, in the absence of a proper definition of "force" with regard to the crime of sodomy, "the jury was able to convict [him] of a serious sex offense based on a finding of only the slightest unlawful touching."
Defendant also contends that the instructional error permitted the jury to convict him on an erroneous legal theory and, therefore, reversal is required since the record does not establish that the verdict was based on a valid theory. He also argues the error is also reversible because it was not harmless beyond a reasonable doubt as required when a trial court erroneously instructs on an element of the offense.
The People argue that the trial court was not required to define "force" with respect to sodomy because it has no specialized meaning, the court properly limited the definition of "force" for purposes of battery to that lesser offense, and any error was harmless.
"A court has no sua sponte duty to define terms that are commonly understood by those familiar with the English language, but it does have a duty to define terms that have a technical meaning peculiar to the law. (Ibid.; People v. Mayfield (1997) 14 Cal.4th 668, 773 [60 Cal.Rptr.2d 1, 928 P.2d 485].) `[T]erms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance. (People v. Estrada, supra, 11 Cal.4th at pp. 574-575, citing People v. Richie (1994) 28 Cal.App.4th 1347, 1360 .)" (People v. Bland (2002) 28 Cal.4th 313, 334.)
Consistent with the above principles, the trial court provided a definition of force specifically in regard to battery. We do not think there is a reasonable likelihood that the jury misapplied batterys definition of "force" to the crime of sodomy. (See People v. Clair (1992) 2 Cal.4th 629, 663.) Batterys "force and violence" definition was given following an instruction regarding the elements of the crime of battery and made applicable to the "foregoing instruction." In addition, that definition was given after sodomy and the other charged offenses already had been separately defined for the jury. The prosecutor never suggested that mere insolent, rude, or angry touching was sufficient to find defendant guilty of forcible sodomy. Without any specific instruction, a reasonable juror would have understood "force" as used in the context of sodomy to have its commonly understood meaning.
We, therefore, turn to defendants other contention that "force" has acquired a technical meaning different from the commonly understood meaning. In People v. Pitmon (1985) 170 Cal.App.3d 38, 47, the court determined that "force, as used in section 288, subdivision (b), offenses does have a specialized meaning not readily known to the average lay juror" and held that the trial court erred by failing to instruct sua sponte on the Cicero definition of force. Defendant argues, that, while he "has found no published case which decides whether Ciceros definition of force applies to sodomy cases, there is no logical reason that it should not" since "[l]ike other sex acts, the act of sodomy also requires an inherent degree of force."
The issue whether "force" has a technical meaning for the purpose of rape "by means of force" (§ 261, subd. (a)(2)), which gives rise to a sua sponte duty to define the term for a jury, is presently pending before the California Supreme Court in People v. Griffin (2002) 100 Cal.App.4th 917, review granted Oct. 23, 2002, S109734. Presumably, the high courts resolution of this issue will be equally applicable to the crime of forcible sodomy.
At this juncture we are unwilling to conclude that "force" has a technical meaning for purposes of sodomy even if such an instruction may be necessary in the context of a forcible lewd or lascivious act. Any touching may be a sufficient act to constitute a crime under section 288, subdivision (b). (People v. Martinez (1995) 11 Cal.4th 434, 438, 442, 452.) Therefore, it may be difficult to distinguish between a lewd or lascivious act and any act of force by which a lewd or lascivious act is accomplished. This difficulty may provide an explanation for why further instruction regarding "force" is necessary in that context.
In contrast, the crime of sodomy is statutorily defined as "sexual conduct consisting of contact between the penis of one person and the anus of another person" and "[a]ny sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).) The statutory definition of forcible sodomy requires that sodomy be "accomplished against the victims will" by one of specified unlawful means, which include "force." (§ 286, subd. (c)(2).) The statutory definition of forcible sodomy makes clear that "force" refers to the means used to accomplish the sodomy and impliedly does not merely refer to the physical act of sodomy itself. Dictionary definitions of the word "accomplish" include "[t]o succeed in doing; bring to pass" (The American Heritage College Dictionary (3d ed. 1997) p. 9) and "to bring about (a result) by effort" (Merriam-Websters Collegiate Dictionary (10th ed. 2001) p. 7). Thus, the statutory definition of forcible sodomy already makes clear that "force" refers to something additional to the act of sodomy as statutorily defined.
Furthermore, force is commonly understood to mean "strength or energy exerted or brought to bear" or "violence, compulsion, or constraint exerted upon or against a person or thing." (Merriam-Websters Collegiate Dict., supra, p. 455.) A reasonable juror would understand physical compulsion beyond the sexual act itself is necessary to prove forcible sodomy.
We cannot reasonably conclude that the term "force" has acquired any technical meaning in the context of sodomy. Our conclusion is consistent with People v. Anderson (1966) 64 Cal.2d 633. In that case, the California Supreme Court rejected an argument that the trial court erred by failing to instruct regarding the term "force" as used in section 211 which defines robbery. (Id. at pp. 639-640.) The court concluded that the term "force" has no peculiar technical meaning and is presumed to be within the understanding of jurors. (Id . at p. 640.) We conclude the same with respect to forcible sodomy.
The crime of robbery also requires a particular physical act, a taking. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "The taking element of robbery itself has two necessary elements, gaining possession of the victims property and asporting or carrying away the loot. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 1158, 1165.) "In order to support a robbery conviction, the taking, either the gaining possession or the carrying away, must be accomplished by force or fear. (See § 211.)" (People v. Cooper, supra, 53 Cal.3d 1158, 1165, fn. 8.)
D. Failure to Identify Drug or Alcohol Use As Factors in Determining Credibility
Defendant asserts that the trial court committed reversible error by failing to inform the jury that it could consider drug or alcohol use near the time of the alleged offenses in determining the believability of any witness.
The court instructed in accordance with CALJIC 2.20 regarding the believability of a witness. The court stated in part: "In determining the believability of a witness, you must consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following . . . ." Among the factors then listed by the court was "[t]he extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified" and "[t]he ability of the witness to remember or to communicate any matter about which the witness testified."
The courts instruction made clear that the jury could consider a witnesss ability to perceive or remember in determining the believability of a witness and the specified factors were not exclusive. In closing argument, defense counsel pointed out a witnesss ability to perceive and recollect events is relevant. Although defense counsels basic argument was that the victims were lying, she did mention the possibility that cocaine or drugs may have affected Sheilas perceptions. Defense counsel also asserted that Christina was drinking and delusional on the day she made her statement to police and Christina had credibility issues because she had been drinking and taking prescription pills at the same time. Defense counsel argued: "Im not saying shes bad, but your common sense has to tell you that when you drink a fifth of vodka a day and you take pills on top of it, you dont always remember things the way that they happened." Defendants assertion that the jury never had the opportunity to consider whether the victims drug and alcohol use caused them to have faulty memories of the incidents is clearly incorrect.
"Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citations.]" (People v. Andrews (1989) 49 Cal.3d 200, 218.) While a criminal defendant may be entitled, upon request, to instructions that pinpoint the theory of the defense case (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142-1143), defendant Badillo made no such request for instruction in this case. Pinpoint instructions are not required to be given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) We discern no error in failing to instruct the jury that alcohol and drug use are factors that may be considered in determining credibility.
E. Admission of Defendants Statement Regarding "Mission In Life"
Prior to trial, the prosecutor indicated to the court that the People would like to call Christy Wang, a therapist at the jail, to testify that, on the night defendant was booked for attempted rape, defendant said, "`My main mission in life is to kill Sheila (redacted)." At trial, outside the jurys presence, the court heard Wangs proffered testimony. Wang indicated that defendant had told her, in response to a question whether he was suicidal or homicidal, that his one mission in life was to kill Sheila and he also wanted to kill himself.
At one point, defense counsel objected to the proffered evidence on grounds the statement was privileged under Welfare and Institutions Code section 5328 because it was part of the main jails confidential intake procedure. Defense counsel also objected to the evidence on the ground that the threat did not rise "to the level of a Tarasoff disclosure, because the threat was not imminent." Defense counsel additionally argued defendant had received insufficient disclosure in discovery. Defense counsel also contended that Wang was acting as an agent of the Department of Corrections and defendant had refused to waive his Miranda rights. The trial court ruled that there was no Miranda problem and the threat fell within the exception of Evidence Code section 1024.
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 445-447, held that psychotherapists employed by the government are not immune from liability under Government Code section 820.2 for the failure to warn a third person of a risk of harm posed by a patient. Evidence Code section 1024 provides: "There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger." It has been held that "when the factual predicate of the exception [under Evidence Code section 1024] exists, an excepted communication may be used in any further proceeding, even though the threat identified by the psychotherapist no longer exists. [Citations.]" (San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092.)
Christy Wang then proceeded to testify before the jury that she was a psychotherapist and, on December 31, 1999, she was working in the main jail where she assessed incoming inmates. She testified, without objection, that during her assessment of defendant that night, defendant stated, "`My mission in life is to kill Sheila (redacted)." On cross-examination, defense counsel elicited Wangs testimony that defendant had actually stated, "`My mission in life is to kill Sheila (redacted) and myself."
On appeal, defendant now contends that his statement to Wang was irrelevant (Evid. Code, §§ 210, 350) and constituted inadmissible character evidence (Evid. Code, § 1101, subd. (a)). The short answer is that those evidentiary claims were waived because defendant failed to specifically object on those grounds below. (Evid. Code, § 353; see People v. Morris (1991) 53 Cal.3d 152, 187-190.)
Defendant further contends that his trial counsel provided ineffective assistance by failing to interpose those objections. He argues that the alleged victims gave inconsistent testimony but his statement to Wang permitted "the jury to improperly infer that, since [he] is a violent person, there must be a ring of truth to the victims accounts." Defendant also points out that the prosecutor relied on his statement to Wang to advocate for conviction on all counts. The prosecutor suggested defendants statement was indicative of his pattern of abusive behavior: "A few hours after the defendant is arrested and hes in preprocessing that night, he says to Ms. Christy Wang, `My main mission in life is to kill Sheila (redacted). Is that the only time he has threatened in this case? No. [¶] In the car with Christina, `Ive got to finish you off now. Ive got to finish you off. And Christina is afraid of him and Sheila is afraid of him. So we have threats. This isnt just a coincidence, you know. Oh, what an unlucky coincidence. No. This is a pattern of conduct that has been repeated over and over by this man."
The People now argue that defendants statement to Wang was evidence of consciousness of guilt. A defendants actions at the time of his arrest may be relevant to show his consciousness of guilt (see People v. Miranda (1987) 44 Cal.3d 57, 84 [attempt to deny identity and flee]) so long as the inference drawn from the evidence is not speculative (see People v. Babbitt (1988) 45 Cal.3d 660, 681-682). We think there is a good argument that any inference regarding defendants consciousness of guilt based on his statement to Wang is speculative.
Even if we assume that defense counsel was remiss in failing to object, the record does not establish the prejudice necessary for a meritorious claim of ineffective assistance of counsel. (See People v. Maury, supra, 30 Cal.4th at p. 399; Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674] ["[A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"].) There was other evidence aside from defendants statement and the victims accounts indicating that defendant was capable of acting violently. When he responded to the 911 call, Officer Sarmento observed redness around Sheilas throat and rips, which looked recent, in both legs of her sweatpants. When Officer Marquez responded to the 911 call, the officer observed bruising on Christinas face and severe swelling over her right eye. The record does not demonstrate a reasonable probability that, but for counsels alleged ineffective assistance, the result of the proceeding would have been different.
Defendant argues that any prejudice to him was heightened by the courts failure to instruct in accordance with CALJIC No. 2.06 (efforts to suppress evidence as circumstance tending to show consciousness of guilt) and such instruction might have partially mitigated prejudice resulting from admission of his statement to Wang. It appears that defendants statement was in response to a question regarding his mental state and not an effort directed at intimidating a witness.
F. Alleged Prosecutorial Misconduct in Eliciting Evidence
On direct examination of Officer Marquez, the prosecutor asked, "While Christina testified at the preliminary hearing, what did the defendant do while she was testifying?" No objection was interposed. The officer responded that defendant was crying. Defendant argues that by eliciting such testimony, the prosecutor violated his Fifth Amendment privilege not to testify at the preliminary hearing. He relies upon Doyle v. Ohio (1976) 426 U.S. 610, 611 and People v. Heishman (1988) 45 Cal.3d 147, 197.
In Doyle, the Supreme Court held that a prosecutor may not seek "to impeach a defendants exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest" because "use of the defendants post-arrest silence in this manner violates due process . . . ." (Doyle v. Ohio, supra, 426 U.S. at p. 611, fn. omitted.) The court made clear that Miranda warnings contain an implicit assurance that silence will carry no penalty. (Id. at p. 618.) The California Supreme Court has since observed: "Ordinarily, evidence that a suspect has invoked the right to remain silent creates the danger that the jury will draw an impermissible inference of guilt from the testimony. (See generally U.S. v. Newman (9th Cir. 1991) 943 F.2d 1155, 1157.)" (People v. Lucero (2000) 23 Cal.4th 692, 714.)
In Heishman, the California Supreme Court stated: "In criminal trials of guilt, prosecutorial references to a nontestifying defendants demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendants right not to testify. (3) Consideration of the defendants behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character." (People v. Heishman, supra, 45 Cal.3d at p. 197.) Thus, "comment during the guilt phase of a capital trial on a defendants courtroom demeanor is improper (People v. Heishman (1988) 45 Cal.3d 147, 197 . . . ) unless such comment is simply that the jury should ignore a defendants demeanor (People v. Stansbury, supra, 4 Cal.4th at p. 1058)." (People v. Boyette (2002) 29 Cal.4th 381, 434.)
The People explain that the evidence was elicited to explain Christinas inconsistent preliminary hearing testimony and the prosecutor did not refer to defendants failure to testify. The People assert that any claim of prosecutorial misconduct was waived because defendant failed to object below. The People are correct that defendant failed to preserve his claim for review. (See People v. Sapp (2003) 31 Cal.4th 240, 310 [by failing to object below, defendant waived claim of prosecutorial misconduct involving prosecutors elicitation of testimony, which defendant characterized as propensity evidence]; People v. Coddington (2000) 23 Cal.4th 529, 612 [by failing to object below, defendant waived claim that prosecutors questioning of a witness, to establish defendants "ebullience" during conversations with that witness out of the jurys presence, infringed upon his Fifth Amendment right not to testify], overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Hughes (2002) 27 Cal.4th 287, 332 [by failing to object to prosecutors allegedly improper comments during closing argument, defendant waived claim of Griffin error].)
Defendant argues that the prosecutor committed "plain error" which is cognizable on appeal without objection. (See Fed. Rules of Crim. Proc., rule 52(b) ["A plain error that affects substantial rights may be considered even though it was not brought to the courts attention"].) The "plain error" rule has no applicability in this court. (See Fed. Rules of Crim. Proc., rule 1(a)(1) ["These rules govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States"].) We also note parenthetically that any claim of erroneous admission of the evidence was also waived since he did not specifically object. (Evid. Code, § 353.)
"It is, of course, misconduct for a prosecutor to `intentionally elicit inadmissible testimony. [Citations.] [Citation.]" (People v. Cox (2003) 30 Cal.4th 916, 952.) "A claim of prosecutorial misconduct [consisting of an improper question to a witness] is generally reviewable on appeal only if the defense makes a timely objection at trial and asks the trial court to admonish the jury to disregard the prosecutors question. [Citations.] `"[O]therwise, the point is reviewable only if an admonition would not have cured the harm." [Citation.]" (People v. Sapp, supra, 31 Cal.4th at p. 279.) Assuming that the question regarding defendants courtroom conduct was improper, a prompt judicial admonition would have cured any harm posed by the question.
G. Evidence of Prior Uncharged Rape and Constitutionality of Section 1108
Defendant maintains that the trial court abused its discretion by admitting evidence of defendants alleged uncharged 1990 rape of Hilda Doe. Defendant argues that the evidence had little probative value given the passage of time, the uncertainty of its commission, and the governments failure to prosecute. He also contends that People v. Falsetta (1999) 21 Cal.4th 903, 908, 922, in which the California Supreme Court rejected a due process challenge to the admission of evidence of uncharged crimes pursuant to section 1108, was wrongly decided because "the Fourteenth Amendments due process clause prohibits the use of propensity evidence against a defendant in a criminal case."
In an in limine motion, defendant asked the court to exclude evidence of the 1990 incident on the ground that admission of such evidence would violate his right to due process and argued that section 1108 violates due process. At the hearing on the motion, defense counsel agreed with the court that her motion involved the "352 factors." The court indicated that the evidence was more probative than prejudicial, not unduly prejudicial, and not too remote in time and involved a single offense. It ruled that the evidence was admissible based upon its analysis under Evidence Code section 352.
In People v. Falsetta, supra, 21 Cal.4th 903, the Supreme Court concluded that "the trial courts discretion to exclude propensity evidence under section 352 saves section 1108 from defendants due process challenge." (Id. at p. 917.) The court stated: "By reason of section 1108, trial courts may no longer deem `propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.) As defendant impliedly recognizes, this court is bound by the high courts decision in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
On review, we apply the deferential abuse of discretion standard to the courts ruling under Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) "Prejudicial" within the meaning of that section "is not synonymous with `damaging, but refers instead to evidence that `"uniquely tends to evoke an emotional bias against defendant" without regard to its relevance on material issues. [Citations.]" (Ibid.) As the evidence was probative and not inflammatory or particularly remote in time, we conclude that the trial court properly exercised its broad discretion in admitting the evidence.
H. CALJIC No. 2.50.01
In accordance with former CALJIC No. 2.50.01 (1999 Revision) (6th ed. 1996), the court instructed the jury: "If you find the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which hes accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the crime—charged crimes. The weight and significance of the evidence, if any, are for you to decide. Unless you are otherwise instructed, you must not consider this evidence for any other purpose." The court further instructed pursuant to CALJIC No. 2.50.1: "Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed a sexual offense other than those for which hes on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other sexual offense."
The California Supreme Court opined in dicta that CALJIC No. 2.50.01 (1999 rev.) (6th ed. 1996) adequately set forth the controlling principles under section 1108. (People v. Falsetta, supra, 21 Cal.4th at p. 924.)
Defendant claims that these two instructions improperly invited the jury to infer that he committed the charged offenses from a finding that he had a disposition to commit sex offenses. He maintains that courts instruction pursuant to CALJIC No. 2.50.01 (1999 Revision) (6th ed. 1996) was defective because it provided "a short-cut" for determining whether he was guilty of the charged offenses by singling out the "other crimes" evidence rather than "cautioning the jurors to resolve the case based on all the evidence presented." He maintains that the instruction "improperly reduce[d] the governments burden of proof beyond a reasonable doubt on each element of the charged offense."
We begin by noting CALJIC No. 2.50.01 (7th ed 2003) now includes the following: "However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." The new language appears to address defendants concern but was not given in this case.
CALJIC No. 2.50.1 (7th ed. 2003) page 75 now provides the additional bracketed language: "[If you find other crime[s] were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged [or any included crime] in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.]"
However, defendant concedes in his reply brief that People v. Reliford (2003) 29 Cal.4th 1007 forecloses his argument but he, nevertheless, wishes to preserve the issue for federal review. In Reliford, the California Supreme Court rejected the contentions that the 1999 version of CALJIC No. 2.50.01 was likely to mislead the jury regarding the limited purpose for which prior crimes evidence may be considered and regarding the prosecutions burden of proof. (People v. Reliford, supra, 29 Cal.4th at pp. 1012-1016.) The court dismissed the criticism that the instruction failed to "inform jurors that the inference they may draw from prior sexual offenses is simply one item to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." (Id. at p. 1015.) The court found no constitutional error in the 1999 version of the instruction. (Id. at p. 1016.) We are, of course, bound by the courts decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
In this case, as in Reliford, the instructions as a whole properly informed the jury of the Peoples burden of proof.[] Considering the challenged instructions in the context of the instructions as a whole and the trial record, there is no reasonable likelihood that the jury misunderstood or misapplied the challenged instruction as suggested by defendant. (See People v. Clair (1992) 2 Cal.4th 629, 663.)
The court informed the jury of the presumption of innocence and the Peoples burden of proving defendant guilty beyond a reasonable doubt and explained "reasonable doubt." The court instructed: "Each count charges a distinct crime. You must decide each count separately." The challenged instruction made clear that if the jury found, under the preponderance standard, that defendant committed a prior sexual offense, the finding was "not sufficient by itself to prove beyond a reasonable doubt" that defendant committed the charged offenses. That instruction also provided: "The weight and significance of the evidence, if any, are for you to decide." The court also instructed the jury: "Do not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others." The court told the jury: "You should give the testimony of a single witness whatever weight you think it deserves. Testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends." It further admonished: "You should consider all of the evidence bearing upon every issue, regardless of who produced it."
I. Section 667.6, Subdivision (d)
Defendant contends that the trial court erred in sentencing him on the sodomy and assault with attempt to commit rape convictions under the mandatory language of section 667.6, subdivision (d), because assault with attempt to commit rape (§ 220) without any previous conviction for that offense is not an offense specified by that subdivision and, therefore, he was not convicted of multiple offenses specified by section 667, subdivision (d). He also further argues that his sentence cannot be affirmed under the discretionary authority of section 667.6, subdivision (c), because the trial court did not give any statement of reasons. (See Cal. Rules of Court, rule 4.426(b).)
Section 667.6, subdivision (d), provides in pertinent part: "A full, separate, and consecutive term shall be served for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, . . . or of committing sodomy . . . in violation of Section 286 . . . by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions."
Section 667.6, subdivision (c), provides in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, . . . or of committing sodomy . . . in violation of Section 286 . . . by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person whether or not the crimes were committed during a single transaction."
California Rules of Court, rule 4.426(b), provides: "If the defendant has been convicted of multiple crimes, including at least one violent sex crime, as defined in section 667.6, or if there have been multiple violent sex crimes against a single victim on the same occasion and the sentencing court has decided to impose consecutive sentences, the sentencing judge shall then determine whether to impose a full, separate, and consecutive sentence under section 667.6(c) for the violent sex crime or crimes in lieu of including the violent sex crimes in the computation of the principal and subordinate terms under section 1170.1(a). A decision to impose a fully consecutive sentence under section 667.6(c) is an additional sentence choice which requires a statement of reasons separate from those given for consecutive sentences, but which may repeat the same reasons. The sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule 4.408."
The People agree that the trial court could not sentence defendant under section 667.6, subdivision (d), because he was convicted of only one enumerated sex offense, namely forcible sodomy. The consecutive sentencing scheme mandated by section 667.6, subdivision (d), applies only when a defendant is convicted of multiple enumerated sex offenses under the circumstances specified. (People v. Jones (1988) 46 Cal.3d 585, 594-595.) The People also concede that, since the trial court provided no statement of reasons for imposing a full consecutive term, the sentence may not be upheld under the permissive sentencing provisions of subdivision (c) of section 667.6. (See People v. Belmontes (1983) 34 Cal.3d 335, 347-348.) They agree the case must be remanded for a new sentencing hearing.
The judgment is reversed and the matter is remanded for the limited purpose of resentencing.
Wunderlich, J., and Mihara, J., WE CONCUR.