Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F08803
RUSHING, P.J.
Defendant Jerry Michael Bitney appeals a judgment resulting from his conviction after trial of torture (Pen. Code, § 206), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), robbery (§ 211), assault my means of force likely to cause great bodily injury (§ 245, subd. (a)(1)), false imprisonment (§ 236), kidnapping (§ 207, subd. (a)); assault with a firearm (§ 245, subd. (a)(2)); and unlawful possession of a firearm by a felon (§ 12021.1, subd. (a)). Defendant committed the crimes with his co-defendant, Kristina Dawn Lopez, who was also convicted during their joint trial, and filed a separate appeal in this court.
All further statutory references are to the Penal Code.
People v. Lopez, H030113.
On appeal, defendant asserts the trial court erred in giving CALCRIM No. 1045. Subsequent to filing his opening brief, defendant requested permission to join in the arguments Lopez raised in her appeal. The additional arguments raised by Lopez are that the defendant was denied his due process rights due to prosecutorial misconduct; the trial court erred in denying his motion for a mistrial, and the trial court committed sentencing error pursuant to section 654.
Statement of the Facts and Case
On January 9, 2004, J.P. was out of prison on parole, and was staying at the Ocean Pacific Lodge in Santa Cruz with his girlfriend, Anabel Bouck. At the time, P. was using a false name because he was wanted on parole violation warrants. While at the Ocean Pacific Lodge, P. was selling drugs from the room, and spent most of his time over the two days prior buying and selling drugs. P. was using methamphetamine every day.
Late in the evening on January 9, 2004, P. and Bouck. got into a fight, leaving B. with a black eye. At about that time, defendant and Lopez who had come by earlier that night, returned to the hotel room. Defendant and Lopez told P. he could come and stay with them at their room at the Econo Lodge.
When the three arrived at the Econo Lodge, P. rested on one of the beds, when he heard a click sound. P. looked up and saw that defendant was pointing a .22 caliber steel revolver in his face. Defendant told P. they were going to rob him for everything he had. Defendant led P. at gunpoint onto the balcony of the room and told him to empty his pockets. P. put $750 and some marijuana on the floor. Defendant told P. not to move and closed the sliding glass door. Defendant and Lopez stood on the other side of the door talking for a few minutes. When defendant opened the sliding glass door, he told Lopez to reach into P.’s pants and when she did, she found some methamphetamine hidden there.
At that point, defendant ordered P. to crawl into the room on his hands and knees and as P. did that, one of them kicked P. in the head. Defendant and Lopez tied P.’s hands behind his hack with duct tape and zip ties. Defendant and Lopez hit and kicked P. repeatedly all over his body. They called him a “Jew” and a “rat,” because he had given information to the police about a person named Timothy Kaesemeyer in 2001, and that Kaesemeyer was in prison because of P. They drew a Star of David on the back of P.’s head in pink marker.
The assault continued for three hours, and P. passed out and regained consciousness a few times during the night. P. was bleeding from his nose and mouth, and defendant and Lopez wrapped his head in a sheet.
Later that night, Lopez left the motel room to get a vehicle. She told defendant not to have too much fun without her before she got back. Lopez was gone for approximately one hour.
While Lopez was gone, defendant called P. his “punk,” and said he was going to “fuck [P.] in the ass” and that P. would probably like it. P. was lying between the two beds. Defendant pulled P.’s pants down, got on top of him, and put something into P.’s anus. P. did not know what defendant put inside of him. P. did not think Lopez was in the room during the sexual assault. Defendant stopped abruptly, and P. became aware that Lopez had returned to the room. Defendant let P. smoke a cigarette, but when he finished, defendant put the cigarette out on P.’s arm.
Defendant pulled P.’s pants up and walked him out of the room to a truck, where he ordered P. to get in, face down on the floor. P.’s face was near the pedals and his legs were on the passenger side. Lopez drove, and defendant sat in the passenger’s seat. At one point, Lopez stopped and truck and defendant got out. Lopez held the gun to P.’s head and told him not to resist or she would shoot him.
When defendant came back to the truck, they drove for approximately one hour into the Santa Cruz Mountains. During the drive, defendant told P. he was not going to kill him, but he was going to make P. wish he was dead. Lopez pulled over to the side of the road. It was pitch black outside, and defendant pulled P,. out of the truck to his feet, causing P. to hit the back of his head on the pavement.
Defendant lead P. to the back of the truck and accused him again of being a rat and of being responsible for Kaesemeyer’s imprisonment. Defendant said that P. should suffer the same pain Kaesemeyer felt. Defendant fired two shots at P. from behind, one of which struck P. in the leg. Defendant and Lopez drove off, leaving P. on the side of the road
P. hobbled down the road and yelled for help. When a woman stopped and offered to call the police, P. declined because he was afraid he would be arrested on outstanding warrants. A newspaper delivery man stopped and drove him to the bottom of the mountain and left him at a store. From the store, P. hobbled to the nearby house of Mr. Vanderpool.
P. knocked on Mr. Vanderpool’s door and asked for help. P. was very distraught, and his hands were bound behind his back and he had no shoes on. P. told Mr. Vanderpool that he had been beaten and robbed, and left in the mountains. Mr. Vanderpool brought P. into the house, and cut through the layers of duct tape and cord around P.’s hands. P. told Mr. Vanderpool that he did not want to go to the hospital because he had warrants and was afraid of being arrested. P. was also afraid that if he were sent to jail, he would be hurt by other inmates because he had been a “rat.” When Mr. Vanderpool insisted on taking him to the emergency room, P. gave a false name to the hospital staff, and was uncooperative with them.
When sheriff’s detectives came to the hospital to talk to P., he was extremely uncooperative, refusing to identify himself or his attackers. After the interview was over, and P. was being taken to jail, he told a sheriff that he would be in danger if he was housed in the general population, and identified defendant and Lopez as his attackers. The sheriff agreed to speak with P.’s parole officer about housing P. in protective custody.
On January 10, 2004, Detective Gidding went to room 103 of the Econo Lodge Motel and confirmed that defendant and Lopez had rented a room there the night before. Gidding took a sample from a stain on the carpet between the two beds. The stain tested positive for blood that was later confirmed to match P.’s DNA.
Outside room 103, Gidding found a garbage can that had a pink Sharpie felt tip pen, plastic zip ties, a wad of duct tape, and a white baseball cap that belonged to P., with the logo “WS Santa Cruz” crossed out with pink ink.
At the crime lab, Gidding examined P.’s clothing, and did not see a bullet hole in P.’s pants where he claimed to have been shot. Gidding noted this finding in a report. Gidding found a large stain on the back of P.’s underwear, and DNA testing confirmed that P.’s blood was on the underwear. There was no sperm or fecal matter detected.
Based on his inspection of P.’s clothes, Detective Gidding believed P. was sodomized. He called Deputy Dimick and told Dimick his conclusion. In response, Dimick assigned Detective Henry Montes to interview P. to see if he had been sexually assaulted.
The interview with Montes was videotaped, and was played for the jury during trial.
During the interview, P. recounted the story of what happened to him the night of January 9. Montes suggested to P. that probably something more had happened to him, a “situation[] that [was] hard to talk about . . . .” P. said he did not know what happened, and that he was passed out and had been given drugs with a syringe. P. told Montes that when he came to, defendant was saying that P. was his “punk.” Montes then saud, “Let’s just go over this real quick okay now were your pants down at this time? Did something go into your butt?” At this point, P. admitted to Montes that he had been anally assaulted.
Following the interview with Montes, P. underwent a sexual assault examination (SART). The SART nurse examined P.’s anus on the outside, but did not examine him internally. P.’s anus was tender, red and sore, which the SART nurse testified was consistent with having been sexually assaulted. The SART nurse did not see any rectal bleeding, tearing or cuts to the skin.
On the night of January 10, 2004, police found defendant and Lopez at the Seaside Lodge in Santa Cruz. Defendant initially evaded police, but was eventually found in the bushes near the motel. Lopez was arrested in the parking lot of the motel while driving a pickup truck. Lopez had $690 cash in her possession. Detective Gidding found a roll of duct tape and a bed sheet in the bed of the truck and a zip tie in the cab. He found no evidence of blood in or on the truck.
Inside defendant and Lopez’s motel room at the Seaside Lodge, Detective Gidding found a loaded .22 caliber gun, and a box of .22 ammunition. At trial, P. said the gun found in the room looked like the one defendant and Lopez used during the assault.
While trial was in progress, Dr. Richard Mason examined the pants P. was wearing during the incident, and found a small bullet hole corresponding to the area where P. said he had been shot in the leg. Dr. Mason conducted tests on fabric similar to the pants, firing shots into them with various types of weapons. Dr. Mason formed the opinion that the hole in P.’s pants was consistent with either a .22 or .25 caliber bullet.
Defendant was charged by information with torture (Pen. Code, § 206; count 1), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1); count 2), robbery (§ 211; count 3), assault my means of force likely to cause great bodily injury (§ 245, subd. (a)(1); count 4), false imprisonment (§ 236; count 5), kidnapping (§ 207, subd. (a); count 6); assault with a firearm (§ 245, subd. (a)(2); count 7); and unlawful possession of a firearm by a felon (§ 12021.1, subd. (a); count 8). The information also alleged that defendant personally used a firearm during the commission of counts 1 through 7 (§§ 12022.5, subds. (a) & (d), 12022.53, subd. (b)), and that he personally discharged a firearm causing great bodily injury during the commission of counts 1, 2, 3, and 6 (§ 12022.53, subd. (b)). The information alleged that count 2 fell within the sentencing provisions of section 667.61, subdivisions (a), (b), and (e), and that defendant had suffered a prior prison term within the meaning of section 667.5, subdivision (b).
Following a trial, a jury convicted defendant of all counts, and found the firearm enhancements to be true. The trial court found the prior prison term enhancement to be true.
The trial court denied probation, and sentenced defendant to term of life with the possibility of parole on count 1 (torture), a consecutive term of 25 years to life on count 2 (penetration with a foreign object), and consecutive terms of five years on count 6 (kidnapping), one year on count 3 (robbery), eight months on count 8 (felon in possession of a firearm), and one year for the prior prison term enhancement for a total of 7 years 8 months in addition to two life terms. The court stayed the sentence on the remaining counts and enhancements pursuant to section 654.
Discussion
Defendant asserts four claims on appeal: instructional error in the giving of CALCRIM No. 1045, violation of his due process right to a fair trial because of prosecutorial misconduct, trial court abuse of discretion in denying defendant’s motion for a mistrial, and sentencing error pursuant to section 654.
Instructional Error–CALCRIM No. 1045
Defendant contends that he was deprived of his constitutional due process rights and right to a fair trial by the trial court instructing the jury with CALCRIM No. 1045. He argues the instruction is constitutionally defective, because it does not set forth the required element of sexual intent contained in section 289, subdivision (k).
Defendant was charged with a violation of section 289, subdivision (a)(1), which provides, “Any person who commits an act of sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.” Section 289, subdivision (k)(1) defines “ ‘[s]exual penetration’ ” as “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” (Italics added.)
Here, the court instructed with CALCRIM No. 1045 as follows: “The defendant is charged in Count 2 with sexual penetration by force. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant committed an act of sexual penetration with another person; [¶] (2) The penetration was accomplished by using an unknown object; [¶] (3) The other person did not consent to the act; and [¶] (4) The defendant accomplished the act: by force, violence, or fear of immediate and unlawful bodily injury to anyone. [¶] . . . [¶] Sexual penetration means penetration however slight of the anal opening of the other for the purpose of sexual abuse, arousal or gratification. [¶] An unknown object includes any foreign object, substance, instrument, or device, or any part of the body, including the penis, if it is not known what object penetrated the opening. [¶] Penetration for sexual abuse means penetration for the purpose of causing pain, injury or discomfort. [¶] An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. [¶] An act is accomplished by fear if the other person is actually and reasonably afraid or he is actually but unreasonably afraid and the defendant knows of his fear and takes advantage of it.”
Defendant asserts the portion of the instruction defining “sexual abuse” as “penetration for the purpose of causing pain, injury, or discomfort” does not adequately state that the act must be done with the intent to inflict abuse on the victim, as opposed to physical abuse of the victim.
Defendant contends that because the act in this case was anal penetration, and the anus is not inherently a sexual organ, there must be proof of sexual intent in committing the act in order to qualify as a violation of section 289, subdivision (a)(1). He further argues the instruction as given does not require a finding of sexual intent, because it defines “sexual abuse” as “penetration for the purpose of causing pain, injury, or discomfort.”
A similar argument was made and rejected in People v. White (1986) 179 Cal.App.3d 193 (White). In White, the defendant was convicted of violating section 289 based on his act of digitally penetrating a 17-month old’s anus. In his motion for a new trial, the defendant argued that because of the court’s instructions, the prosecutor’s argument and the form of verdict given to the jury, “ ‘the jury was misled into believing that section 289 could be violated without proof that the defendant entertained a sexual intent when committing the proscribed acts.’ ” (White, supra, 179 Cal.App.3d at p. 203.)
The White court rejected the defendant’s argument, finding that abuse or mistreatment in the manner described in section 289, subdivision (a) is, by definition, sexual abuse simply because of the body parts affected. The court further opined that sexual penetration is a violation of section 289, subdivision (a), “ ‘where the intent is in fact to “abuse,” i.e., to hurt, cause pain to or injure . . . when a penetration is accomplished for the purpose of causing pain, injury or discomfort, it becomes sexual abuse, even though the perpetrator may not necessarily achieve any sexual arousal or gratification whatsoever.’ (Fn. omitted.)” (White, supra, 179 Cal.App.3d at p. 205 .)
The CALCRIM No. 1045 instruction given in this case was based on the analysis in White, and is constitutionally sound. The fact that the anus is not an inherently sexual organ does not impact the case, nor does it require an additional showing of sexual intent or arousal by defendant when committing the acts. Section 289 clearly defines the proscribed act as “causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant’s or another person’s genital or anal opening for the purpose of sexual arousal, gratification, or abuse . . . .” (§289, subd. (k)(1), emphasis added.) And the in structionreiterates this definition by stating: “penetration means penetration however slight of the . . . anal opening of the other person . . . for the purpose of sexual abuse, arousal or gratification. [¶] Penetration for sexual abuse means penetration for the purpose of causing pain, injury or discomfort.” (CALCRIM No. 1045.)
Here, like White, there is no question the anal penetration defendant inflicted upon P. was perpetrated with the intent to abuse. This is clearly evident from the fact that he told P. he was defendant’s “punk.” “ ‘[W]hen a penetration is accomplished for the purpose of causing pain, injury or discomfort, it becomes sexual abuse, even though the perpetrator may not necessarily achieve any sexual arousal or gratification whatsoever.’ (Fn. omitted.)” (White, supra, 179 Cal.App.3d at p. 205.)
CALCRIM No. 1045 clearly states the requirements for a conviction for under section 289, and does not omit any necessary elements of the crime.
Prosecutorial Misconduct
Defendant asserts on appeal that the prosecutor committed misconduct that had the effect of undermining the defense’s credibility with the jury and denied his constitutional right to a fair trial.
Factual and Procedural Background
The basis for the misconduct claim is the prosecutor’s actions regarding physical evidence. Prior to trial, the prosecutor provided the defense a report that stated that there was no hole in the pants P. was wearing in the area where P. claims he was shot in the leg. The detective who examined the pants and made the report, also testified that there was no hole in the pants at the preliminary hearing.
Approximately two weeks before trial, the prosecutor inspected the pants and noticed there was a hole in the leg area. The prosecutor provided the pants to defense counsel for inspection, but did not inform counsel about discovering the hole. During his opening statement, counsel for Lopez stated that the lack of a bullet hole in the pants significantly undermined P.’s credibility.
Two days after the start of trial, the prosecutor disclosed a report from Dr. Richard Mason documenting the existence of a bullet hole in P.’s pants and the results of tests performed in which Dr. Mason fired different weapons into similar fabric. Defense counsel objected on the ground that the prosecutor improperly failed to timely disclose the existence of the hole in the pants. The prosecutor admitted making a conscious decision not to disclose the existence of the hole in the pants, and argued she only had a duty to provide the physical evidence to the defense for its own inspection, which she did. The court continued the matter for further hearing and briefing by the parties.
At the subsequent hearing, the prosecutor stated that she was “in error” in failing to disclose the existence of the bullet hole before trial. Counsel moved for a mistrial based on a violation of due process. The trial court found that the prosecutor had committed misconduct by failing to disclose evidence that would impeach an investigating officer. However, the court found the misconduct did not prejudice the defense, but did entitle the defense to a remedy in the form of additional time to investigate the hole, and a curative instruction.
At the conclusion of the evidence, the trial court provided its own instruction regarding the misconduct that read as follows: “Both the people and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] The People provided the defense with reports from a crime scene investigator that there was no bullet hole in [J.P.’s] pants. The People later presented sworn testimony to that same effect. [¶] When the prosecution discovered a hole in [J.P.’s] pants before the commencement of the case on January 25, 2006, they withheld the information from the defense. [¶] Later, Dr. Richard Mason, on or about February 2, 2006, discovered and confirmed a bullet hole in [J. P.’s] pants and this information was provided to the defense on February 2, 2006. Thus the defense did not know that there was a bullet hole in [J.P.’s] pants until after opening statements were made.”
Following the verdicts, defense counsel for Lopez moved for a new trial on the basis of prosecutorial misconduct. The trial court denied the motion.
Analysis
Prosecutors must disclose evidence to a criminal defendant when it is “ ‘both favorable to the defendant and material on either guilt or punishment.’ [Citations.] Evidence is ‘favorable’ if it hurts the prosecution or helps the defense. [Citation.] ‘Evidence is “material” “only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . . would have been different.” ’ ” (People v. Earp (1999) 20 Cal.4th 826, 866; see also Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) “There are three components of a true Brady violation: The evidence at issue must be favorably to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently, and prejudice must have ensued.” (Stickler v. Greene (1999) 527 U.S. 263, 281-282.)
The defendant asserts the evidence of the existence of the bullet hole in P.’s pants was exculpatory because it tended to impeach the thoroughness of the crime scene investigator. As a result, the prosecutor had an obligation under Brady to disclose the evidence when she learned of it.
Here, there is no question the information about the hole in the pants was favorable to defendant, because it provided evidence to impeach the crime scene investigator and to argue the overall investigation of the crime was sloppy. However, the fact that the prosecutor did not tell defense counsel when she learned about the hole does not necessarily amount to suppression of the evidence under Brady.
Although the prosecutor did not tell defense counsel when she learned about the hole in the pants, she provided the pants to counsel for their own inspection. The prosecutor had no constitutional duty to conduct defendant’s investigation for him. Consequently, “when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.” (United States v. Brown (5th Cir.1980) 628 F.2d 471, 473; see also U.S. v. Stuart (8th Cir.1998) 150 F.3d 935, 937 [“Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence”].)
The record demonstrates defendant had access to the pants prior to trial and in fact did inspect the pants. However, counsel’s inspection did not reveal the hole. Counsel’s failure to find the hole, or to conduct an adequate inspection of the evidence does not amount to the prosecutor committing misconduct through the suppression of exculpatory evidence under Brady, supra, 373 U.S. 83.
However, even if the prosecutor should have disclosed her discovery of the hole in the pants to the defense, her act did not rise to the level of Brady error because the information was disclosed during trial. Defense counsel learned about the hole two days into trial, when the prosecutor turned over an investigative report she received the day prior. Once defense counsel learned of the hole, they were given additional time to conduct their own independent investigation, and were able to cross-examine the crime scene investigator about his failure to find the hole during the original investigation. Although the disclosure was after trial began, it was not no so late that defense counsel could not effectively address it. “No denial of due process occurs if Brady material is disclosed in time for its effective use at trial.” (United States v. Higgs (3d Cir. 1983) 713 F.2d 39, 44.)
In addition to defendant’s Brady argument, he also asserts the prosecutor committed prejudicial misconduct that infected the trial with such unfairness that it denied his right to a fair trial under the Fourteenth Amendment. “Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Although prosecutors are given “ ‘ “ ‘wide latitude’ ” ’ ” in presenting their cases, they nevertheless “are held to an elevated standard of conduct.” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) The imposition of this higher standard is justified by their “ ‘unique function . . . in representing the interests, and in exercising the sovereign power, of the state.’ ” (Id. at p. 820.)
As a matter of federal constitutional law, a prosecutor’s behavior constitutes prejudicial misconduct when it is “ ‘ “ ‘ “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (Hill, supra, 17 Cal.4th at p. 819.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct “threatened defendant’s right to a fair trial.” (Id. at p. 838.) By contrast, there would be “no error of constitutional dimension” where, for example, “inaccuracies in the [prosecution] witness’s testimony were not material errors ‘in the sense that [their] suppression undermines confidence in the outcome of the trial.’ ” (People v. Padilla (1995) 11 Cal.4th 891, 929, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
The claimed error in this case relates not to the suppression of favorable evidence; rather it is the timing of the prosecutor’s disclosure of the evidence that is at issue. As stated above, the evidence was disclosed two days into the trial, and defense counsel had an opportunity to address it, both through investigation and cross-examination. Such error does not rise to the level of federal prejudicial misconduct that infects the trial with such unfairness as to make the conviction a denial of due process. Therefore, we consider the conduct under the state constitution’s Watson standard to determine if there is a reasonable probability of a different result. (See People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson (1956) 46 Cal.2d 818, 835.) Under that standard, “a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict.” (People v. Wagner (1975) 13 Cal.3d 612, 621.)
Here, we do not find the prosecutor’s failure to disclose the hole in the pants until two days into trial to have contributed materially to the verdict of guilt. Although counsel for Lopez did include in the opening a statement that P. lacked credibility because there was no hole in the pants he claimed he was wearing when he was shot in the leg, counsel for Bitney did not so state, and included no reference to the pants in his opening statement. Moreover, the lack of a hole in the pants was only one of many angles the defense used to attack P.’s credibility, including his methamphetamine addiction, drug dealing, criminal convictions, unwillingness to cooperate with the police investigation, and his inconsistent statements. The evidence of the hole in the pants was a very small part of the defense case.
In addition, any advantage the prosecutor may have gained by allowing counsel for Lopez to represent that there was no hole in the pants, was cured by the court’s instruction that the crime scene investigator had prepared an erroneous report, and that the prosecutor had withheld that fact form defense counsel until after opening statements. Given this admonishment, as well as the other evidence presented at trial, we do not find a reasonable probability that the jury would have reached a different verdict had the prosecutor disclosed the lack of a hole in the pants prior to trial.
Defendant’s Motion for a Mistrial
Defendant asserts the trial court abused its discretion when it denied the defense motion for a mistrial based on the prosecutor’s delayed disclosure of the existence of a hole in P.’s pants.
The standard for review of the denial of a motion for mistrial is well established: “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.]” (People v. Bolden (2002) 29 Cal.4th 515, 555.) “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 565.)
In finding no irreparable prejudice by the prosecutor’s delayed disclosure in this case, the trial court specifically noted that the defense was entitled to a remedy, including the opportunity to conduct its own investigation, and a curative instruction. Defense counsel did in fact cross-examine the crime scene investigator about his failure to find the hole in the pants, and the court instructed the jury that the prosecutor had withheld information about the hole from the defense until after opening statements were given. As such, any prejudice that may have initially occurred as a result of the prosecutor’s actions was cured, and there was no irreparable prejudice to defendant. We find the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.
Sentencing Error Under Section 654
Defendant asserts the trial court erred when it did not stay sentence on the kidnapping charge pursuant to section 654, because the kidnapping was part of a continuous course of conduct and incidental to the crime of torture.
Section 654 states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “The statute ‘literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the “same act or omission.” [Citation.] However, . . . its protection has been extended to cases in which there are several offenses committed during “a course of conduct deemed to be indivisible in time.” ’ ” (People v. Hicks (1993) 6 Cal.4th 784, 789, internal quotations and citations omitted.)
Defendant’s intent and objective, rather than the temporal proximity of his offenses determines whether the transaction is indivisible. (People v. Hicks, supra, 6 Cal.4th at p. 789.) This determination is a question of fact for the trial court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) On appeal, this court defers to the trial court’s factual findings where they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
There is ample evidence to support the trial court’s express finding that defendant harbored multiple objectives in committing the crime of torture and kidnapping. It is important to note here that the torture occurred before the kidnapping. Indeed, the evidence shows that defendants falsely imprisoned P. in the motel room for a period of hours, during which they robbed him, sexually assaulted him and beat him as punishment for his cooperation with law enforcement on another case. It was after these crimes that Lopez left the motel room to borrow a truck that was later used to kidnap P. and drive him to the hills, where he was shot in the leg and left. The evidence supports the finding that the kidnapping was separate from the torture, and was committed in order to move P. to a remote location to avoid being caught.
We find the trial court’s finding that the kidnapping was separate from the torture to be supported by the evidence, and therefore, there was no sentencing error under section 654.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.