Opinion
B315412
11-21-2022
THE PEOPLE, Plaintiff and Respondent, v. BILLY DAVID, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA099739, Lauren Weis Birnstein, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
WILLHITE, J.
In June 2021, defendant and appellant David Billy was convicted of one count of assault with the intent to commit rape and/or sexual penetration during the commission of first degree burglary (Pen. Code, § 220, subd. (b));two counts of sexual penetration by a foreign object accomplished by force, violence, duress, or fear (§ 289, subd. (a)(1)(A)); two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); and one count of first degree burglary (§ 459). Defendant was sentenced to an overall term of life imprisonment plus 19 years, and was ordered to submit to HIV/AIDS testing.
Undesignated statutory references are to the Penal Code.
On appeal from the judgment of conviction, defendant does not challenge the sufficiency of the evidence to support his convictions. Instead, he raises several issues regarding his sentence. He first contends that imposition of an indeterminate life sentence for assault with intent to commit rape and/or sexual penetration during residential burglary (count 1) and fully consecutive determinate terms for both counts of forcible sexual penetration by foreign object (counts 2-3) violated section 654's prohibition of multiple punishments for the same criminal act. He also contends that the HIV/AIDS testing order was supported by insufficient evidence; his conviction for first degree residential burglary (count 6) must be dismissed as a lesser included offense of assault with intent to commit rape and/or sexual penetration during the commission of first degree burglary (count 1); and the sentences he received for committing forcible sexual penetration by foreign object (counts 2-3) are subject to the ameliorative sentencing provisions in current section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124.
The Attorney General agrees, as do we, that defendant is entitled to the ameliorative sentencing provisions in current section 1170 for the sentences imposed for both counts of forcible sexual penetration by foreign object on counts 2 and 3, and that his conviction for first degree residential burglary on count 6 must be dismissed. We also conclude that while the trial court erred by ordering defendant to submit to HIV/AIDS testing, the court committed no error by imposing consecutive sentences on counts 1 through 3. We reverse the conviction on count 6, strike the HIV/AIDS testing order and sentences imposed on counts 2 and 3, and remand for resentencing on those counts consistent with section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution Evidence
As of March 2017, C.W. lived in a multi-story home in Marina Del Rey. C.W. testified that sometime before 11:00 p.m. on March 2, 2017, she had closed the door to her third-floor bedroom and turned off the lights. Around 11:00 p.m., C.W. was alone lying naked under a blanket in her bed trying to sleep.
At some point, C.W. felt the movement of someone sitting on the other side of her bed. C.W. then felt someone touching the area between her left shoulder and breast. C.W. asked the person, "Who are you?" She then looked up and saw a man wearing a mask. The man responded, "I am your boyfriend," to which C.W. stated, "No, you're not." When C.W. tried to move away, the man grabbed her arm and used both of his hands to press down on C.W.'s shoulders. Fully exposed and unable to move, C.W. was terrified.
C.W.'s boyfriend had left earlier in the evening to fly out of the country.
Keeping his left hand on C.W.'s shoulder, the man used his other hand to "wipe" C.W.'s labia majora and minora and her clitoris. The man told C.W., "You are wet. You are ready." Scared she would be raped, C.W. offered to fellate the man, but he refused, stating, "No. I just want to fuck you."
C.W. pushed the man away, and he fell backwards toward a nearby wardrobe. C.W. got out of the bed and grabbed the man's penis and testicles through his clothing. The man laughed. C.W. attempted to grab a cell phone from her nightstand, but the man took it from her hand and placed it in his back pocket. The man punched C.W.'s nose and face several times. As he struck C.W. with his fists, the man said, "Bitch, do you like that?" C.W. pleaded with the man to leave.
To get away, C.W. moved back onto her bed. The man followed C.W. and grabbed her neck, squeezing with both hands. As C.W. felt she was going to lose consciousness, the man let go. C.W. pushed the man again, and both C.W. and the man fell backward onto the floor. The man stood up and kicked and punched C.W. in the head. He then asked C.W., "Do you want me to leave?," to which C.W. replied, "Yes. I would like you to leave. I . . . will not call the police."
The man walked to the bedroom door but stopped; he stated, "Oh. Wait a minute. I'm going to touch your breast." The man walked back to C.W., squatted down over C.W., and squeezed her right breast twice. C.W. was "really afraid" she was going to die. Using his other hand, the man inserted his finger into C.W.'s vagina. After removing his finger, the man asked, "Okay. Are you sure you want me to leave?" C.W. responded, "Please leave. Please leave." The man walked through the bedroom doorway. C.W. rushed to close the door behind him, but the man pushed back on the door. The man retrieved C.W.'s cell phone from his pocket, turned on its light, and raised his mask to reveal his mouth. The man asked, "Would you like to see my face?" C.W. replied, "No. I don't want to. Please leave." The man laughed, placed the phone back into his pocket, and left the doorway.
C.W. closed the bedroom door, locked it, and pushed her bed against the door. C.W. turned on her bedroom light and saw blood "all over." She ran to her bathroom, propped open a window, and yelled for help. Around 11:12 p.m., a neighbor heard C.W.'s screams and called 911.
Around 11:15 p.m., Los Angeles Police Officers Christopher Arzaga and Joseph Sellner responded to C.W.'s home. Officer Sellner testified that the point of entry into the home was a sliding glass door located on a second-floor balcony overlooking the residence's back driveway. The sliding glass door had been opened, and a portion of the balcony railing had fallen to the ground. Officers located two laptops and a trail of blood on the back driveway that led into an alleyway.
C.W. testified that she and her boyfriend owned the laptops that had been recovered outside her home. C.W. had last seen the laptops on a second-floor table inside her home.
C.W. was taken to a hospital where she received treatment for her injuries. According to a nurse examiner, C.W. suffered a broken nose, laceration to her upper lip, scleral hemorrhaging (bruising of the eyes), bruising and lacerations to her face, scratches to her neck, and scratches and bruising to her legs.
Investigating officers were unable to identify a suspect in this case for over one year. Without describing how defendant had been identified as a suspect, an investigating officer in this case testified that he identified defendant as a suspect in September 2018, and arrested defendant at his home in January 2019.
During a discussion with the judge outside the presence of the jury, detective Hess stated that he had identified defendant as a suspect after defendant's DNA had been submitted in an unrelated arrest and matched a DNA profile obtained from the scene. The court excluded this evidence from trial.
After he was arrested, defendant was escorted to the police station where he waived his constitutional rights and agreed to a recorded interview. In his interview, which was played for the jury, defendant admitted he had broken into C.W.'s house to steal various items for money. When defendant realized C.W. was inside her bedroom, he panicked and "kind of touched her because I thought that would scare her." Defendant admitted he had grabbed C.W.'s "leg and her booty and her titties, [but] that's it." When defendant attempted to run away from C.W.'s home, he grabbed a portion of the second-floor balcony and a portion of it came off, causing him to fall and hit his head on the ground near the driveway and back yard.
A criminalist testified that defendant's DNA profile matched the DNA obtained from swabs taken of the trail of blood located outside of C.W.'s home. Another criminalist who analyzed swabs taken of C.W.'s breasts testified that male DNA had been detected on C.W.'s right breast. Given the insufficient volume of detected DNA, the criminalist was unable to test it against any DNA profile.
2. Defense Evidence
Defendant represented himself during trial and testified on his own behalf. The testimony he provided was substantially similar to the statements he provided during his recorded police interview, but with one notable exception: Defendant testified that he had lied to the police and "wasn't even thinking" when he told investigating officers that he had inappropriately touched C.W. Defendant consistently denied touching C.W.'s vagina, buttocks, or breasts.
3. Information, Verdict, and Sentencing
An information charged defendant of one count of assault with the intent to commit rape and/or sexual penetration during the commission of first degree burglary (§ 220, subd. (b); count 1); two counts of sexual penetration by a foreign object accomplished by force, violence, duress, or fear (§ 289, subd. (a)(1)(A); counts 2, 3); two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4, 5); and first degree burglary (§ 459; count 6). The information also alleged that defendant personally inflicted great bodily injury during the commission of each sex offense (§ 12022.8) as alleged in counts 1 through 3. Following trial, a jury convicted defendant as charged, found the great bodily injury enhancements to be true, and found that C.W. had been present inside the residence during the commission of first degree burglary as alleged in count 6 (§ 667.5, subd. (c)).
The trial court sentenced defendant to an overall term of life imprisonment plus 19 years, calculated as follows: count 1, life imprisonment (§ 220, subd. (b)); count 2, a consecutive, upper term of eight years (§ 289, subd. (a)(1)(A)), plus five years for the infliction of great bodily injury (§ 12022.8); count 3, a consecutive, middle term of six years (§ 289, subd. (a)(1)(A)). The court stayed the five-year term for the great bodily injury enhancement on count 3, and pronounced various stayed sentences on counts 4 through 6. The court stated it was imposing consecutive sentences on counts 1 through 3 because "[t]he crimes involved great violence and a high degree of callousness; [¶] [t]he crimes involved separate acts of violence; [¶] [and t]he manner in which the crimes were carried out indicated planning, sophistication, or professionalism." The court then ordered defendant to submit to HIV/AIDS testing.
DISCUSSION
1. Fully Consecutive Sentences on Counts 1 Through 3
Defendant contends that when the trial court imposed fully consecutive sentences on counts 1 through 3, it violated section 654's prohibition of multiple punishments for the same criminal act. We disagree.
Section 654 provides that any "act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654's prohibition has been judicially extended "to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
The Legislature, "by enacting section 667.6, [subdivision] (c), . . . created an exception to section 654's prohibition against multiple punishment for separate acts committed during an indivisible course of conduct." (People v. Hicks (1993) 6 Cal.4th 784, 791 (Hicks); accord, People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) Subdivision (c) of section 667.6 provides that a "full, separate, and consecutive term may be imposed for each violation of [an enumerated sex offense] if the crimes involve the same victim on the same occasion." "Such increased penalties are appropriate, because a defendant who commits 'a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.'" (Hicks, supra, at p. 796, quoting People v. Perez (1979) 23 Cal.3d 545, 553.)
A trial court's express or implied determination that two crimes were separately committed must be upheld on appeal if supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618; see ibid. [reviewing courts will consider § 654 challenges on appeal even if the defendant failed to make the argument in the trial court].)
Here, the trial court imposed a fully consecutive sentence on count 1 for assault with intent to commit rape and/or sexual penetration during the commission of first degree robbery (§ 220, subd. (b)), and two fully consecutive sentences on counts 2 and 3 for sexual penetration committed by force, duress, or fear (§ 289, subd. (a)(1)(A)). These offenses are enumerated sex offenses in section 667.6 (see § 667.6, subd. (e)), and therefore qualify for consecutive sentencing so long as defendant committed each offense by separate criminal act. (Hicks, supra, 6 Cal.4th at p. 791.) When imposing sentence on these counts, the court stated that each offense "involved separate acts of violence." The record amply supports this finding.
Section 220, subdivision (b) provides that "[a]ny person who, in the commission of a burglary of the first degree . . . assaults another with intent to commit rape, . . . or any violation of Section . . . 289 shall be punished by imprisonment in the state prison for life with the possibility of parole." Section 289, subdivision (a)(1)(A) 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."
Defendant's first sexual penetration of C.W., as alleged in count 2 and argued by the prosecutor, occurred when defendant, wearing a mask and attempting to impersonate C.W.'s boyfriend, held C.W. down as he digitally penetrated her vagina. Defendant accomplished this act through both force and fear. (See People v. McCann (2019) 41 Cal.App.5th 149, 156 (McCann) ["the force required for forcible sexual penetration in violation of section 289(a)(1)(A), is 'sufficient force to overcome [the victim's] will'"].)
Although the record does not show which assault jurors relied on in convicting defendant in count 1, the record supports the trial court's implied conclusion that defendant's conviction on that count was based on his violent beating of C.W. Moments before he brutally attacked C.W., defendant declined C.W.'s invitation to be fellated and told C.W. "I just want to fuck you." This clear expression of intent supports the inference that defendant beat C.W. so as to coerce her into submitting to additional sex acts. The assault thus had a separate and distinct objective from defendant's prior act of digitally penetrating C.W.'s vagina.
The forcible conduct used to beat a victim into submission is legally distinct from the type of force required for forcible rape or sexual penetration. "As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker." (People v. Griffin (2004) 33 Cal.4th 1015, 1027; see McCann, supra, 41 Cal.App.5th at p. 156 [applying the reasoning in Griffin to forcible sexual penetration under section 289, sub. (a)(1)(A)].)
As to count 3, defendant concedes that his action of digitally penetrating C.W.'s vagina a second time constituted a separately punishable offense, and rightly so. (See Harrison, supra, 48 Cal.3d at p. 329.) "[I]nstead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior." (Id. at p. 338.) After starting to walk away as C.W. requested, defendant turned around, told C.W. that he wanted to "touch [her] breast," and walked back to where C.W. was sitting on the floor. Defendant squatted over C.W.'s body, held her breast, and used his other hand to insert a finger into C.W.'s vagina. These divisible acts constituted a separate offense from the prior sexual penetration of C.W., and from his brutal assault of C.W.
In sum, we conclude that the record amply supports the trial court's finding that defendant engaged in separate criminal acts in counts 1 through 3. We discern no error in the court's decision to impose consecutive sentences on those counts.
The cases on which defendant has relied are inapposite. (See People v. Siko (1988) 45 Cal.3d 820, 823 [defendant "committed [only] two criminal acts, but was convicted of three violations"]; People v. Jackson (1995) 32 Cal.App.4th 411, 414, 417-419 [finding error in trial court's order imposing punishment on a substantive offense and staying a mandatory sentence enhancement based on the same act.)
2. HIV/AIDS Testing
Defendant contends the HIV/AIDS testing order is based on insufficient evidence and must be stricken. We agree.
Section 1202.1 requires the trial court to order designated persons "to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immunodeficiency syndrome (AIDS) within 180 days of the date of conviction." (§ 1201.1, subd. (a).) Among those designated are persons convicted of sexual penetration in violation of section 289 "if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (§ 1202.1, subd. (e)(5)(A); former § 1202.1, subd. (e)(6)(A).)
"Probable cause is an objective legal standard-in this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim." (People v. Butler (2003) 31 Cal.4th 1119, 1127 (Butler).) Where, as here, a trial court orders HIV/AIDS testing without an express finding of probable cause, we imply that finding and examine the record for substantial evidence to support it. (Ibid.)
Section 1202.1 requires the court to note its probable cause finding "on the court docket and minute order if one is prepared." (§ 1202.1, subd. (e)(5)(B); former § 1202.1, subd. (e)(6)(B).) The reporter's transcript reflects no discussion regarding probable cause, and the corresponding minute orders do not reflect an express finding of probable cause. We consider this contention despite defendant's failure to object to the court's order below. (See Butler, supra, 31 Cal.4th at pp. 1123, 1127-1129.)
Here, there is no evidence in the record demonstrating probable cause to believe defendant's blood or other bodily fluid capable of transmitting HIV had been transferred to C.W. The Attorney General contends that the possibility defendant was bleeding during his assault of C.W. is sufficient to establish probable cause to believe he transferred bodily fluid capable of transmitting HIV to C.W. But the possibility that defendant was bleeding in C.W.'s presence, with no evidence in the record to support such speculation, does not create probable cause to believe he transferred bodily fluid capable of transmitting HIV. The only evidence tending to prove defendant was bleeding was located outside C.W.'s residence and out of C.W.'s presence. There being insufficient evidence to support the HIV/AIDS testing order, the proper remedy is to "remand the matter for further proceedings at the election of the prosecution." (Butler, supra, 31 Cal.4th at p. 1129 ["Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause"].)
3. Reversal of First Degree Burglary (Count 6) as Lesser Included Offense of Count 1
The parties agree, as do we, that defendant's conviction for first degree residential burglary on count 6 must be dismissed as a lesser included offense to assault with intent to commit rape and/or sexual penetration during the commission of residential burglary on count 1. (People v. Dyser (2012) 202 Cal.App.4th 1015, 1020-1021.) It is also undisputed that if a defendant is found guilty of both the greater and lesser included offense arising out of the same act, the greater offense controls and the lesser included offense must be reversed. (People v. Sanders (2012) 55 Cal.4th 731, 736.) Thus, we reverse and dismiss defendant's conviction on that count.
4. Remand for Resentencing on Counts 2 and 3
While this appeal was pending, the Governor signed Senate Bill No. 567 and Assembly Bill No. 124. Both bills, which became effective January 1, 2022, changed the law under which defendant was initially sentenced. Defendant contends, and the Attorney General agrees, that the changes effected by this new legislation apply retroactively to the consecutive sentences imposed on counts 2 and 3 (an upper base term of eight years and a middle term of six years, respectively). (See People v. Garcia (2022) 76 Cal.App.5th 887, 902; People v. Sek (2022) 74 Cal.App.5th 657, 666; People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039.)
As amended, section 1170 now requires that a trial court generally impose the middle term for any offense with a sentencing triad unless "there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) Section 1170 also sets the low term as the presumptive term whenever it finds "contributing factors" to the offense, including, inter alia, the fact that the defendant experienced psychological or childhood trauma, or that the defendant was a youth at the time of the commission of the offense. (§ 1170, subd. (b)(6).) If the low-term presumption applies, the court may impose a higher sentence only if it finds the "aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice." (Ibid.)
According to defendant, two factors warrant application of the low-term presumption on counts 2 and 3: (1) he was a youth at the time of his offenses (§ 1170, subd. (b)(6)(B)); and (2) there is evidence he experienced psychological or childhood trauma (§ 1170, subd. (b)(6)(A)).
Based on the court's imposition of upper- and middle-term sentences on counts 2 and 3, the Attorney General concedes that we must remand the matter for resentencing on those counts. We accept the concession, vacate the sentences on those counts, and remand the matter for resentencing consistent with section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124.
DISPOSITION
With respect to count 6, the judgment is reversed, and the sentence is stricken. The sentences imposed on counts 2 and 3, and the order requiring defendant to submit to HIV/AIDS testing are vacated. The matter is remanded for resentencing on counts 2 and 3 consistent with section 1170, as amended by Senate Bill No. 567 and Assembly Bill No. 124, and for the purpose of conducting further proceedings at the election of the prosecution to determine if sufficient evidence supports an order requiring HIV/AIDS testing pursuant to section 1202.1. The prosecution shall have 30 days from the issuance of remittitur of this opinion to request a further hearing on section 1202.1. If the prosecution fails to request such a hearing, the HIV/AIDS testing order shall remain vacated, and any existing blood or saliva specimen taken pursuant to the prior order shall be destroyed.
Following any section 1202.1 hearing (if timely requested by the prosecution) and the resentencing hearing on counts 2 and 3, the clerk is directed to amend the abstract of judgment to reflect the dismissal of count 6, reflect the amended sentences on counts 2 and 3, and forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed in all other respects.
We concur: MANELLA, P. J. CURREY, J.