Opinion
F075538
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN LEON DAVIS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Kathleen A. McKenna and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF163173A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Kathleen A. McKenna and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Stephen Leon Davis was charged with multiple offenses stemming from sexual assaults against three different women, identified herein as Jane Doe 1 (Doe 1), Jane Doe 2 (Doe 2) and Jane Doe 3 (Doe 3), on three separate occasions. Defendant was convicted by jury of all 11 offenses charged, as follows: two counts of rape (Pen. Code, § 261, subd. (a)(2)) (count 1 (Doe 1) and count 10 (Doe 3)); five counts of oral copulation (former § 288a, subd. (c)(2)(A)) (counts 2, 3 & 4 (Doe 1), count 9 (Doe 2) & count 11 (Doe 3)); one count of kidnapping to commit rape (§ 209, subd. (b)(1)) (count 5 (Doe 1)); one count of robbery (§ 212.5, subd. (c)) (count 6 (Doe 1)); one count of assault with intent to commit rape (§ 220, subd. (a)(1)) (count 7 (Doe 2)); and one count of forcible sexual penetration (§ 289, subd. (a)(1)) (count 8 (Doe 2)).
All further statutory references are to the Penal Code unless otherwise stated.
Effective January 1, 2019, former section 288a was renumbered to section 287. (Stats. 2018, ch. 423, § 49.) The information here was filed in April 2016 and charged all counts of oral copulation (counts 2, 3, 4, 9 & 11) pursuant to section "288A(2)(A)." The information as to these counts was subsequently amended in April 2017 to indicate these counts were brought pursuant to section 288a, subdivision (c)(2)(A).
For purposes of the alternative sentencing scheme set forth in section 667.61, known as the "One Strike" law, the jury found the following special allegations true: defendant kidnapped the victim (§ 667.61, subds. (d)(2), (e)(1)) (counts 1 through 4); defendant committed the offense during the commission of burglary (§ 667.61. subds. (d)(4), (e)(2)) (counts 8 & 9); defendant personally used a dangerous or deadly weapon or firearm in the commission of the offense (§ 667.61, subd. (e)(3)) (counts 1 through 4 & 8 through 11); and there were multiple victims (§ 667.61, subd. (e)(4)) (counts 1 through 4 & 8 through 11). As to count 5, the jury found true the enhancement allegation that defendant committed a felony while using a deadly or dangerous weapon (§ 12022, subd. (b)(1)); and in a bifurcated proceeding, the trial court found true that defendant suffered a prior serious felony conviction for attempted robbery within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The trial court sentenced defendant to a total indeterminate term of 300 years to life in prison plus a total determinate term of 45 years in prison, as follows. On counts 1, 4, 8, 9, 10 and 11, the court sentenced defendant to fully consecutive indeterminate terms of 25 years to life, doubled to 50 years to life under the Three Strikes law, plus an additional five years on each count for the prior serious felony conviction enhancement. (§§ 667.61, subds. (a), (i), 667, subds. (a), (e)(1), 667.6, subd. (d).) On counts 2 and 3, defendant was sentenced to indeterminate terms of 25 years to life, doubled to 50 years, plus five years on each count for the prior serious felony conviction enhancement, to be served concurrently with the sentence on count 1. On count 6 (robbery), defendant was sentenced to a consecutive upper term of five years, doubled to 10 years, plus an additional five years for the prior serious felony conviction enhancement. The sentences on counts 5 and 7 were stayed pursuant to section 654.
As to count 5, defendant was convicted of kidnapping under section 209, subdivision (b)(1), which mandates a sentence of life in prison with the possibility of parole. The trial court imposed and stayed an indeterminate term of seven years to life, doubled to 14 years. (§§ 3046 [minimum term of seven years for parole eligibility], 667, subd. (e)(1) [sentence-doubling provision, which applies to § 3046].) As to count 7, assault with intent to commit rape, the trial court imposed and stayed the upper term of six years, doubled to 12 years. (§§ 220, subd. (a)(1), 667, subd. (e)(1).)
On appeal, defendant claims there is no substantial evidence to support the third act of oral copulation as to Doe 1. Further, defendant maintains the trial court erroneously and prejudicially admitted a hearsay statement about that act of copulation. As to Doe 3, defendant asserts the trial court erred in finding counts 10 and 11 occurred on separate occasions under sections 667.61, subdivision (i) and 667.6, subdivision (d); defendant maintains he had no reasonable opportunity to reflect between the two acts and, thus, the sentences for those counts should not be served consecutively. In his supplemental brief, defendant notes that on September 30, 2018, the Governor signed Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393)), which, effective January 1, 2019, allows a trial court to strike a prior serious felony conviction enhancement in its discretion; the amendments to sections 667, subdivision (a), and 1385, subdivision (b), under Senate Bill No. 1393 became effective while this case was pending. As a result, defendant claims Senate Bill No. 1393 applies retroactively and the matter should be remanded to allow the court to exercise its discretion to strike his prior serious felony conviction enhancements.
The People maintain there is substantial evidence to support the act of oral copulation as to Doe 1, and the hearsay admitted relevant to this count was subject to the business records hearsay exception. The People also contend the trial court did not err in finding there was a reasonable opportunity for defendant to reflect between the acts charged in counts 10 and 11 such that they were committed on separate occasions. Finally, the People concede this matter should be remanded for the limited purpose of allowing the trial court an opportunity to exercise its discretion under Senate Bill No. 1393 to strike the five-year prior serious felony conviction enhancements.
We agree with the parties the matter should be remanded to allow the trial court an opportunity to exercise its discretion to strike the prior serious felony conviction enhancements. In all other respects, we affirm the judgment.
FACTUAL SUMMARY
Defendant was prosecuted for his sexual assaults on three women; Doe 1 was assaulted in February 2016; Doe 2 was assaulted in 2008; and Doe 3 was assaulted in January 2016. The prosecution's case involved testimony from Does 1, 2 and 3, as well as testimony from another victim defendant sexually assaulted in August 2015 that was uncharged; testimony from various police officers and detectives who investigated and connected each of the cases; and nurses and medical professionals who either conducted sexual assault examinations or tested various DNA collections. Defendant took the stand in his own defense; he acknowledged sexual encounters with each of the victims, but asserted all acts were consensual.
Only the testimony relevant to the parties' arguments is summarized herein.
I. Testimony of Doe 1
A. Direct Examination
While on her bicycle, Doe 1 paused on a sidewalk after work on February 10, 2016, to check something online using free wifi from a nearby business. Just as she was about to ride home, defendant approached her. To be polite, she made small talk with him. He asked her if she wanted to smoke marijuana, and she agreed. He started flirting with her and asked her to hug him. She refused and told him they could smoke the marijuana on the sidewalk; he wanted to go somewhere else so no one would see them, and he suggested they walk down a nearby road, which happened to be in the direction of her home.
As they walked down the road, defendant indicated a driveway to an apartment complex and told her he wanted to go to the back of the complex's parking lot to avoid being seen. Doe 1 left her bicycle in the center of the parking lot area in view of the street and then went to stand near a dumpster with defendant at the back of the lot, where they smoked marijuana.
He continued to flirt and suggested they sit down on the grass. She refused and the next thing she knew he was behind her with his arms around her brandishing a knife. He walked her to a corner at the back of the lot, which was isolated. Once there, he began taking her clothes off and took down his pants. He told her to "bend over and grab [her] ankles," which she told him she could not do. He then told her to get on her hands and knees facing him and to put his penis in her mouth; she complied.
After a few minutes, he instructed her to turn around and position herself on her hands and knees facing away from him; she complied, and he then put his penis in her vagina. During the rape, he was spitting on her for lubrication. She testified it was at this time his mouth touched her rectum, but she could not see him.
In his testimony, defendant specifically denied putting his mouth or tongue on her anus.
Unable to maintain an erection, he directed her to face him again on her hands and knees and put his penis in her mouth. At this time, he was also touching himself. Once erect again, he told her to lie on the ground on her back. She refused because the ground was too cold; he spread his shirt on the ground and told her to lie down on the shirt on her back. She complied, and he proceeded to insert his penis into her vagina.
When he finished, he moved off of her and rose to his feet; they walked to where her clothes and purse had been placed. He went through her purse looking for money and discovered her tablet. After taking $40 from her wallet, he told her to hold the tablet up so he could use the light to retrieve the rest of his things. In the light of the tablet, she saw the knife and stepped on it to push it into the dirt where he could not see it. She suggested getting something to drink in an effort to get him away from the area and to a place where she might escape.
After getting dressed, they walked toward the street and her bicycle, and he resumed his flirtatious behavior. They talked for a few minutes, and then he asked her whether she was on her way home, seeming to indicate he was parting company with her. As soon as he stepped away from her and the bicycle, she rode toward home as fast as she could.
On her way home she met her boyfriend, who was in a car searching for her because she was late coming home from work. She told him what had happened, and they flagged down a police officer passing by them in his patrol car. Doe 1 went to the police station to file a report, and then she was transported for a medical examination.
B. Cross-examination
On cross-examination, Doe 1 was questioned about the oral copulation of her anus; Doe 1 testified she "believe[d] he had touched [her] with his lips— [¶] ... [¶] or tongue or something. Like I said, I wasn't looking at him." She then testified she was "not absolutely sure" whether he had "touched [her] buttocks with his lips." Defense counsel changed the subject to ask her about whether she told anyone on February 11, 2016, she had smoked marijuana with defendant, to which she responded she had not. Defense counsel asked Doe 1 whether she told detective Paulk about smoking marijuana with defendant when Paulk interviewed her the next day. Doe 1 said she did not believe she told Paulk about the marijuana that day but she told the detective about it in March 2016.
C. Redirect Examination
On redirect examination, Doe 1 testified she remembered she had a sexual assault exam in the early hours of February 11, 2016, and that the nurse had asked her if she had done any drugs: "I don't remember what I told her. I think I told her no just because I'm thinking about drugs, like, drugs. And like I said, my head was still scattered. I had been falling asleep in the police station. But I believe I told her no." The prosecutor then asked Doe 1 whether she told the nurse she had smoked marijuana with the defendant. Doe 1 responded, "I don't have a specific memory, but I know I wouldn't have lied."
D. Recross-examination
On recross-examination, Doe 1 confirmed she told Paulk in March 2016 that she had smoked marijuana with defendant on the night of the assault. She also explained she told Paulk the reason she had not told her earlier was that she was embarrassed: "I told her it's an embarrassing reason to be in this situation."
II. Testimony of Doe 3
Doe 3 testified that in January 2016 she was working as a prostitute in Bakersfield after having run away from home. That same month, a week before she was arrested and sent to juvenile hall, she met defendant twice. The first time she met him it was 10:00 or 11:00 p.m., and he approached her on a street; they talked about smoking crystal methamphetamine and agreed to smoke his methamphetamine together in an alleyway. She left when they were done smoking.
The next day she met him again in the same spot and asked him if he wanted to smoke. He told her he thought there were people watching them, and he wanted them to move to a different location where people could not see them. They moved to a different alleyway on another street to smoke. At that time, he told her he would pay her $40 to have sex with him, and she agreed. In a small area in the alley where she could not get away, he pulled a knife out, pointed it at her saying, "'Bitch, I'm not paying you,'" and told her to "'[g]et down on [her] knees,'" which she did.
She still had all her clothes on when she knelt in front of him; he exposed his penis, and she put it in her mouth. After some time had passed, he began pulling her hair and saying things to her such as "'bitch, I'm your daddy,'" and then he told her to take off her pants and bend over. She complied, turning around and onto her knees facing away from him; he then inserted his penis into her vagina. After a few minutes, he instructed her to take off her shoes and pants, as her pants were pushed down her legs and her shoes were still on her feet. She quickly pulled up her pants and ran away. He chased her, but was unable to catch her. A week later while in juvenile hall, Doe 3 reported the assault to a staff member.
III. Mercer's Testimony
Mercer testified she is a registered nurse who works for Kern Medical Center (KMC) in the labor and delivery department, and she also works for Forensic Nursing Specialists of Central California (FNSCC) through which Kern County conducts its sexual assault examination cases. She works for KMC as her "day job," and with FNSCC she works on an on-call basis with eight other nurses so whenever a case comes in, someone is assigned to be on-call for that time frame. To work as a forensic nurse, Mercer had to undergo training on the "Cal OES" (Official Emergency Services) form and hands-on training to collect swabs for evidence. The Cal OES form contains a section where the patient consents to the examination, a section where the examiner reports all physical findings, a set of interview questions the examiner is to ask the patient, and a section for the examiner's findings and conclusions.
The Cal OES form is statutorily mandated under section 13823.5, subdivision (c).
On February 11, 2016, FNSCC called Mercer to perform Doe 1's sexual assault examination. As part of the examination, Mercer asked Doe 1 questions from the Cal OES form, which included Doe 1's medical history and alcohol and drug use; Doe 1 told Mercer she had smoked marijuana with her assailant. The form also posed specific questions about the nature of the assault, which included whether there had been oral copulation of the victim's anus. In recording Doe 1's answer to this question, Mercer marked "'no'" initially, but then checked "'yes.'" Mercer could not recall if the "no" answer was changed to "yes" because Doe 1 had changed her mind during questioning or because Mercer had accidentally marked "'no'" when recording Doe 1's answer.
IV. Prosecutor's Closing Argument
In closing argument, the prosecutor summarized the testimony regarding defendant's oral copulation of Doe 1's anus as follows:
"Count 4 is based on the evidence that she described where she said that he spat and he touched her mouth—his mouth to her buttocks or her anus. And that would constitute the third count of oral copulation. The evidence on that count is—the word is—I'm looking for is—is not as direct as to Counts 1, 2, and 3. What I mean by that is this. She did testify on direct—she said, 'I believe that he touched his mouth to my rectum [or] anus.' That's what she said. And then she said it a second time. On cross-examination by [defense counsel], when he specifically questioned her about that, she testified that she wasn't sure.
"So the evidence that I would direct you to, which I'd suggest proves beyond a reasonable doubt that he, in fact, did—the defendant did touch his mouth to her buttocks briefly—and it doesn't matter, the law doesn't require how long, it's just that the mouth would have touched the outside of the anus or the rectum—was Berkley Mercer testified that 'I was going down that checklist of the crimes that [Doe 1] was answering that had occurred to her.' And she specifically described that he had—that [defendant] had put his mouth on her rectum, I think it was. That was the case where [Mercer] testified she had originally checked the box 'no' and then checked the box 'yes.'
"But I would suggest to you that that morning, the morning of February 11th, 2016, [Doe 1] was very sure when she told the nurse that that particular offense had [occurred]—had been committed and that that constitutes Count 4. And she also—[Doe 1] also testified, I think on cross-examination, I don't know if you remember this, but I was going through my notes and I found that she had said—she goes, 'I wouldn't have lied to the nurse,' is what she said."
DISCUSSION
I. Doe 1: Oral Copulation (Count 3)
Though the parties refer to this act of oral copulation as count 4, we refer to this act as count 3, consistent with the trial court. Not relevant to the issues on appeal, we note in closing argument that the prosecutor matched the three acts of oral copulation to counts 2, 3 and 4, out of chronological order of their occurrence and referred to the oral copulation of Doe 1's anus as count 4. At sentencing, the trial court referred to the acts of oral copulation as to Doe 1 in chronological order and referred to the oral copulation of Doe 1's anus as count 3. The evidence at trial established three discrete acts of oral copulation by force in the following chronological sequence: oral copulation of defendant by Doe 1, oral copulation of Doe 1's anus by defendant, and oral copulation of defendant by Doe 1 again. Although the rape occurred between the first and second acts of oral copulation and then resumed after the third act of oral copulation, the rape was charged as count 1. The acts of oral copulation were charged as counts 2, 3, and 4, but neither the information nor the verdict form made a distinction among the three acts. The jury was provided the same instructions for all acts of oral copulation and counts 3 and 4 were identical on the verdict form, with identical one-strike allegations. The jury returned a guilty verdict on all counts and true findings on every one-strike allegation.
A. Background
When Mercer was asked on direct examination what Doe 1 told her with respect to defendant's oral copulation of Doe 1's anus, defense counsel objected to the admission of the statement as hearsay. The prosecutor asserted it was a prior inconsistent statement, and defense counsel pointed out Doe 1 was no longer available to explain or deny the statement as required under Evidence Code 770, subdivision (a). The prosecutor argued Doe 1 had testified about the underlying event and, thus, it did not matter whether she had been excused as a witness for purposes of Evidence Code 770. The trial court admitted the hearsay as a prior inconsistent statement of Doe 1.
Defendant argues what Doe 1 told Mercer with respect to oral copulation of Doe 1's anus should not have been admitted into evidence as a prior inconsistent statement: the statement was not inconsistent with Doe 1's testimony, and Doe 1 was no longer available as a witness when Mercer testified. Not only did the admission of this hearsay violate state law, defendant suggests this presented "a confrontation problem" and cites People v. Vargas (2009) 178 Cal.App.4th 657, 653-654, 660-662 for the proposition that statements to a sexual assault examination nurse are testimonial and thus inadmissible under the Sixth Amendment's confrontation clause. Further, with or without Mercer's testimony, defendant maintains there was no substantial evidence to support the verdict on this count of oral copulation.
The People concede Doe 1's trial testimony was not actually inconsistent with her out-of-court statement to Mercer and was not properly admitted under Evidence Code section 770. The People contend, however, the statement as Mercer recorded it on the examination form was admissible as a business record. The People also argue defendant's conviction for oral copulation of Doe 1's anus was supported by substantial evidence.
In reply, defendant argues the sexual assault examination form Mercer completed was not subject to the business records hearsay exception because it was calculated for use in court, not for use in business. Moreover, even as a business record, Doe 1's statement recorded on the examination form is testimonial and barred by the confrontation clause because defendant was not given an opportunity to cross-examine Doe 1 about that out-of-court statement.
B. Substantial Evidence
1. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.) "[W]hen reviewing the sufficiency of evidence ..., the reviewing court must consider all of the evidence presented at trial, including evidence that should not have been admitted." (People v. Story (2009) 45 Cal.4th 1282, 1296.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) The testimony of a single witness is sufficient to support a conviction unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
2. Analysis
There is substantial evidence to support defendant's conviction as to oral copulation of Doe 1's anus. On direct examination, the prosecutor asked Doe 1 a single question about whether defendant's "mouth touch[ed] either your rectum or your vagina?" to which Doe 1 responded, "I believe that his mouth had touched my rectum, but I just wasn't trying to even think about the situation when I was in it." In a follow-up question about when this occurred, Doe 1 explained defendant touched her rectum with his mouth when he was "spitting on [her] when [she] was on [her] hands and knees facing forward" and "away from him."
On cross-examination, the following exchange occurred between Doe 1 and defense counsel regarding this particular act of oral copulation:
"[DEFENSE COUNSEL:] Okay. There was one thing you said this morning, and I don't know if you were unsure of or—did you ever feel his lips on your buttocks?
"[DOE 1:] He had—like I said, he was kissing me on my face, on my neck, and I do believe that I felt him—whenever we were in that particular situation, I believe he had touched me with his lips—
"[DEFENSE COUNSEL:] Okay.
"[DOE 1:] —or tongue or something. Like I said, I wasn't looking at him.
"[DEFENSE COUNSEL:] Okay. So, again, just for clarification, either you know, you don't know, not sure, just tell me. I don't want to put words in your mouth. [¶] Do you know for sure whether he touched your buttocks with his lips or do you just—not sure?
"[DOE 1:] I don't know for sure.
"[DEFENSE COUNSEL:] Okay. Do you know if he touched you with his tongue or you're not sure? And I'm talking about your buttocks.
"[DOE 1:] I'm not absolutely sure."
Mercer testified she went through the Cal OES form during her examination of Doe 1, which elicited information from the victim about what sexual acts occurred during the assault, among other things. With respect to what Doe 1 told Mercer about oral copulation of Doe 1's anus, Mercer testified to what she recorded on the form. The prosecutor asked the following questions about what the form reflected Doe 1 told Mercer:
"[PROSECUTOR:] All right. And so specifically under the area of 'Oral copulation of anus,' which is Number 4 on the form.
"[MERCER:] Yes.
"[PROSECUTOR:] Do you see that? There's a place for '[o]f patient by assailant' and originally the 'no' box was checked and then you checked 'yes.'
"[MERCER:] Yes.
"[PROSECUTOR:] All right. And can you explain that, please.
"[MERCER:] I don't recall if she had changed her mind or if I had accident[al]ly marked 'no' the first time.
"[PROSECUTOR:] All right. So with the box 'yes' being checked, she indicated that she—that her anus had been orally copulated by [defendant]?
"[DEFENSE COUNSEL]: Objection. Hearsay.
"[PROSECUTOR]: That's being offered as truth for a prior inconsistent statement.
"[DEFENSE COUNSEL]: [Evidence Code sections] 770; 791.
"THE COURT: Okay. Under prior inconsistent statement, I'll allow it.
"[DEFENSE COUNSEL]: She's unavailable as a witness at this point. She's been excused.
"THE COURT: [Prosecutor?]
"[PROSECUTOR]: She was directly asked about this—it doesn't matter that she was excused. She was directly asked about it when she was on the witness stand.
"THE COURT: The witness may answer.
"[MERCER]: I did mark 'yes.'
"[PROSECUTOR:] To the question that there was oral copulation of her anus by [defendant]?
"[MERCER:] Correct."
Doe 1 testified she "believe[d]" defendant had touched her anus with his tongue or lips, although she was trying not to think about it at that time. Based on the guilty findings for counts 1 through 6 and the strike allegations found true as to each count, the jury credited Doe 1's testimony in every respect; the testimony of a single witness is sufficient to support a conviction and we find nothing physically impossible or inherently improbable in Doe 1's testimony that would preclude it from being credited. (People v. Young, supra, 34 Cal.4th at p. 1181.) This remains true regardless that Doe 1 testified on cross-examination that she could not be "absolutely sure" defendant touched her "buttocks" with his lips or tongue. That Doe 1 was not "absolutely sure" went to the weight and credibility of her testimony, which was an issue for the jury to consider. Certainty or a lack thereof as to the touching did not render her testimony insufficient to support the conviction for oral copulation if the jury found it credible and gave it weight, which they did. (See People v. Huston (1943) 21 Cal.2d 690, 693 [it is the exclusive province of the factfinder to determine the credibility of a witness and the facts upon which that determination depends], overruled on other grounds in People v. Burton (1961) 55 Cal.2d 328, 351-352.) Standing alone, Doe 1's testimony is sufficient to support the conviction for this act of oral copulation.
Whether defendant's mouth or tongue touched Doe 1's "buttocks" is irrelevant to oral copulation of the anus. Nevertheless, the jury was instructed on the proper elements of oral copulation, and it is presumed they followed this instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
While Mercer's testimony confirmed Doe 1 reported anal oral copulation at her examination, there was a question whether Doe 1 was equivocal in making this report. Mercer testified the form was first marked "'no'" and then marked "'yes,'" but she could not recall why it was changed. In effect, Mercer's testimony was limited to confirming that, at the time of the examination, Doe 1 reported oral copulation of her anus, but Mercer's testimony provided no basis for the jury to infer whether, at the time of examination, Doe 1 was more certain the oral copulation occurred than she was at trial.
Notwithstanding the limited inferential value of Mercer's testimony, the jury still had substantial evidence on which to base its verdict. It was for the jury to credit or discredit Doe 1's testimony that while she believed this act of copulation occurred, she was not "absolutely sure." Her uncertainty did not render her testimony improbable or impossible. Based on the verdict, the jury credited Doe 1's testimony, and Doe 1's testimony is sufficient to support the conviction for this offense. (People v. Young, supra, 34 Cal.4th at p. 1181 [uncorroborated testimony of a single witness is sufficient to support a conviction].)
C. Admission of Doe 1's Out-of-court Statement to Mercer
1. Standard of Review and Hearsay Rules
A trial court's ruling on the admissibility of evidence, including one that turns on the hearsay nature of the evidence, is reviewed under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible unless it falls under an exception. (Id., subd. (b).) Pursuant to Evidence Code section 1271, certain business records can be excepted from the hearsay rule. Admissible business records are those "writings made in the regular course of business, at or near the time of the event, and created through sources of information and a method of preparation reflecting its trustworthiness." (People v. Sanchez (2016) 63 Cal.4th 665, 695, fn. 21 (Sanchez).) However, when a business record "is not made to facilitate business operations but, instead, is primarily created for later use at trial, it does not qualify as a business record." (Ibid., citing People v. Lopez (2012) 55 Cal.4th 569, 587-590 (conc. opn. of Corrigan, J.); see Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 321 [certain documents kept in regular course of business—like police reports generated by law enforcement officials—are not subject to business or official records hearsay exceptions because "the regularly conducted business activity is the production of evidence for use at trial"].)
As explained in Sanchez, documents like the sexual examination report at issue here are often prepared by a person outside the courtroom and "are usually offered to prove the truth of the information they contain." (Sanchez, supra, 63 Cal.4th at p. 674.) Documents may also contain several layers of hearsay. "An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level." (Id. at p. 675.)
2. Analysis
There is no dispute the statement Doe 1 made to Mercer during her examination, which Mercer in turn recorded on the sexual assault examination form was an out-of-court statement offered at trial for the truth—i.e., hearsay. The parties do not agree, however, whether the statement was admissible under the business records hearsay exception.
Application of the business records hearsay exception here is problematic. First, the record on appeal does not indicate the examination report itself was ever offered or admitted into evidence. Rather, it appears Mercer had a copy of the examination report with her on the stand, and she referred to it during her testimony.
As to Doe 1's statement about the oral copulation, Mercer testified only to what was contained in the report, not her independent recollection of what Doe 1 said.
Second, even assuming the report itself was offered and admitted into evidence, it is not clear an adequate foundation was laid under Evidence Code section 1271. While Mercer testified about the nature of the Cal OES form and that she completed it for every examination, she was not asked expressly to identify the form pertaining to Doe 1 as the one she completed, nor did she state when she completed it. Moreover, Mercer's testimony suggests the Cal OES form was generated primarily for law enforcement purposes and use as evidence in a court, which may disqualify it as a business record. (People v. Lopez, supra, 55 Cal.4th at pp. 587-590 (conc. opn. of Corrigan, J.); Sanchez, supra, 63 Cal.4th at p. 695, fn. 21; see People v. McVey (2018) 24 Cal.App.5th 405, 415.)
Finally, and most importantly, Mercer's own observations and findings recorded on the Cal OES form constituted only one layer of hearsay, but the "yes" statement Doe 1 made to Mercer, which Mercer in turn recorded on the form was a second, distinct layer of hearsay for which an independent hearsay exception is required. (Sanchez, supra, 63 Cal.4th at p. 675.) When Mercer testified, she did not express any independent recollection of what Doe 1 said to her during the examination; she instead testified to what she recorded on the form. Because the People offer no grounds to admit Doe 1's statement to Mercer recorded on the examination report, we assume without deciding that Doe 1's statement to Mercer constituted inadmissible hearsay. Nevertheless, for the reasons discussed post, any error in admitting this statement was harmless. We turn now to the confrontation clause.
D. Doe 1's Hearsay Statement and the Federal Right to Confrontation
1. Confrontation Clause Legal Framework
As we presume Doe 1's hearsay statement to Mercer constituted inadmissible hearsay, we turn next to the confrontation clause. Even where hearsay is properly admitted pursuant to an exception for purposes of state law, it may nonetheless violate the federal Constitution in criminal cases. The Sixth Amendment's confrontation clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." (U.S. Const., 6th Amend.) Pursuant to Crawford v. Washington (2004) 541 U.S. 36, 59, 62 (Crawford), admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment's confrontation clause unless (1) the declarant is unavailable to testify, and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. As noted in People v. Cage, the "confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial." (People v. Cage (2007) 40 Cal.4th 965, 984.) In general, hearsay statements are testimonial when they occur under circumstances that "impart[], to some degree, the formality and solemnity characteristic of testimony." (Ibid.) Further, "the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial." (Ibid.) However, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements," and "[t]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Crawford, supra, at p. 59, fn. 9.)
Within defendant's argument in his opening brief that Doe 1 was unavailable for purposes of Evidence Code section 770, he notes "a confrontation problem" and cites People v. Vargas, supra, 178 Cal.App.4th at pages 653-654, 660-662 for the proposition that statements to a sexual assault examiner are testimonial and inadmissible under the Sixth Amendment's confrontation clause. A confrontation clause argument was then more fully addressed in defendant's reply brief. To the extent this notation in the opening brief can be construed as raising a Sixth Amendment confrontation clause argument, it is without merit.
Since Crawford, the United States Supreme Court has continued to refine the meaning of testimonial hearsay, which was discussed at length in the California Supreme Court's decision in Sanchez, supra, 63 Cal.4th at pages 686-694.
To analyze hearsay statements under both state law and the federal Constitution, a reviewing court engages in a two-step analysis. (Sanchez, supra, 63 Cal.4th at p. 680.) "The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines the term." (Sanchez, supra, at p 680.) Our confrontation clause analysis stops short of the second step because defendant did not properly preserve an objection on this basis, and, even if he did, defendant had an opportunity for effective cross-examination of Doe 1 at trial.
2. Analysis
a. Failure to Preserve Objection for Appeal
Defendant did not raise an objection during trial based on the confrontation clause, and we conclude he has forfeited this claim. (People v. Redd (2010) 48 Cal.4th 691, 730-731; People v. Raley (1992) 2 Cal.4th 879, 892, [hearsay objection did not preserve confrontation clause argument for appeal], superseded by statute on other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8.) While defendant made a hearsay objection to Mercer's testimony regarding Doe 1's statement, the objection was based on the prerequisites to Evidence Code sections 770 and 791 not being satisfied in part because Doe 1 had already been excused as a witness. There is no special incantation required by counsel to preserve a confrontation clause objection, but the circumstances and context must make clear to the court and opposing counsel that this is the basis of the objection. (People v. Holmes (2012) 212 Cal.App.4th 431, 435-436 ["where ... the context makes clear that the court and opposing counsel were aware that the confrontation clause was the basis of the hearsay objection, the constitutional objection is preserved"].) In this case, defense counsel objected to Doe 1's statement to Mercer as hearsay, and the prosecutor asserted it was admissible as a prior inconsistent statement under Evidence Code section 770. Defense counsel responded that Doe 1 had been excused. While Doe 1's prior excusal as a witness is the fundamental crux of the confrontation clause issue here, counsel's hearsay objection based on Doe 1's absence was clearly meant and understood to refer to the inability to question Doe 1 about that statement as required under Evidence Code section 770, subdivision (a), not as an objection on federal constitutional grounds. The confrontation clause was raised solely by the trial court, on a subsequent day of trial, in disallowing a detective's proposed testimony that Doe 1 told him about the anal oral copulation.
Section 770, subdivision (a), provides that "extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) [t]he witness was so examined while testifying as to give him an opportunity to explain or to deny the statement ...."
b. Opportunity for Effective Cross-examination of Doe 1
Even assuming defendant did not forfeit the confrontation clause argument, under the facts of this case we nevertheless conclude there is no constitutional violation because defendant had an opportunity to cross-examine Doe 1 about her statement to Mercer. Although Doe 1 testified before Mercer, this did not deprive defendant of an opportunity to cross-examine Doe 1 as to the out-of-court statement. (See United States v. Owens (1988) 484 U.S. 554, 559 [it is the "'"opportunity for effective cross-examination"'" that is guaranteed by the confrontation clause]; People v. Cowan (2010) 50 Cal.4th 401, 463 [sufficient opportunity to cross-examine declarant dismissed as a witness subject to recall before hearsay testimony offered].) In Cowan, a witness (Foreman) against the defendant had reported to police that the defendant had admitted to Foreman he had beaten to death an old couple he found in a bedroom in a house in Bakersfield. (Cowan, supra, at p. 421.) At trial, Foreman was questioned whether the defendant ever told her about murdering anyone; Foreman denied the defendant had said anything like that to her specifically and instead testified she had overheard a conversation where the defendant repeatedly threatened to kill Foreman's daughter. (Id. at p. 461.) Subsequently, an officer testified Foreman had told him the defendant admitted to Foreman that he had beaten to death an old couple in Bakersfield. (Id. at p. 462.) In rejecting the defendant's confrontation clause argument on appeal, the court held that, although Foreman had testified before the officer and Foreman was not asked about her statements to him on direct or cross-examination, she was released subject to recall, and the defendant had been free to recall her as a witness and cross-examine her about the discrepancy between her trial testimony and her prior statement to the officer. (Id. at p. 463.) The court concluded no Sixth Amendment violation occurred. (Ibid.)
Here, although defense counsel did not expressly reserve the right to recall Doe 1 when she was excused as a witness, we do not find that dispositive of his opportunity to cross-examine her about her statement to Mercer. The prior statement to Mercer could have been raised during the initial cross-examination of Doe 1. The issue of whether defendant orally copulated Doe 1's anus was addressed on direct examination, and what Doe 1 told Mercer about that oral copulation was within that scope for purposes of cross-examination. (See People v. Barthel (1965) 231 Cal.App.2d 827, 834 [wide latitude afforded on cross-examination to determine the facts and truth of testimony given on direct].)
Defendant knew Mercer was on the prosecutor's witness list and would subsequently testify, and he would have known there was a discrepancy on the sexual assault examination form with regard to this act of oral copulation in that it was first marked "no" to indicate it had not occurred, and then was marked "yes." We do not suggest defendant was obligated to question Doe 1 about her statement to Mercer but given Doe 1's equivocation on cross-examination as to this act of oral copulation, how certain Doe 1 was when she reported this act to Mercer took on a new dimension of relevance. Since this issue became especially salient during cross-examination of Doe 1, defendant's decision not to ask Doe 1 about this prior statement strikes us as a strategy decision, perhaps a wise one, and not a lack of opportunity to effectively cross-examine.
Moreover, after Mercer testified, the trial court had discretion to recall Doe 1 (see Evid. Code, § 778), and even indicated its willingness to do so later in the proceedings, yet defendant never once asked to recall Doe 1. In light of the opportunity defendant had to address the prior statement during Doe 1's cross-examination and defendant's opportunities to seek Doe 1's recall during and after Mercer's testimony, we cannot conclude defendant was deprived of an opportunity to cross-examine Doe 1 about her prior statement to Mercer. As such, there is no confrontation clause violation.
Based on the record, it appears defense counsel's failure to seek recall of Doe 1 was likely a deliberate trial strategy decision. Recalling Doe 1 to the stand would have cured the basis of defendant's hearsay objection as to the inconsistent statement exception (assuming the statement to Mercer was truly inconsistent) and would have potentially provided the prosecution a second opportunity to ask Doe 1 about other prior statements she made about this act of oral copulation—specifically, a prior statement to an investigating detective.
E. Harmless Error Analysis Under People v. Watson
As we conclude no federal constitutional right was violated by the admission of Doe 1's out-of-court statement to Mercer, any error in admitting that statement at trial is an issue of state law only and is subject to the harmless-error analysis under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Leach (1975) 15 Cal.3d 419, 445.) Under this error analysis, a conviction cannot be reversed unless "it is reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error." (People v. Watson, supra, at p. 836.) Any error here in admitting Doe 1's hearsay statement was harmless.
Even if Mercer's testimony had not been admitted, it is not reasonably probable a result more favorable to defendant would have been reached. (People v. Watson, supra, 46 Cal.2d at p. 836.) Mercer offered nothing new the jury had not already heard from the victim herself: that she believed defendant had orally copulated her anus during the assault. To the extent Mercer's testimony suggested it was possible Doe 1 may have been uncertain about what had occurred, Doe 1 had already testified that while she "believe[d]" it had happened, she was not "absolutely sure." Mercer had no independent recollection why the Cal OES form was initially marked "'no,'" but was then marked "'yes.'" Had Mercer testified Doe 1 was unequivocal at the time of the examination, any uncertainty in Doe 1's testimony would have been bolstered. But that was not Mercer's testimony; thus, there was no way for the jury to make any inferences about the form's markings that would have truly bolstered Doe 1's uncertainty on the issue. Mercer's testimony did nothing more than confirm Doe 1 had reported the oral copulation at the time of the examination, mirroring what Doe 1 herself testified on the stand.
In her closing argument, the prosecutor highlighted Mercer's testimony that Doe 1 reported the oral copulation at the time of her examination and argued to the jury that meant Doe 1 was "very sure when she told the nurse that that particular offense had ... been committed ...." Mercer never testified Doe 1 was sure the oral copulation had occurred when she reported it to Mercer—Mercer knew only that the form was marked "yes" despite being first marked "no." Any overstatement of Mercer's testimony by the prosecutor was argument only, which the jury had been instructed was not evidence. As Mercer's testimony offered nothing new or additional to Doe 1's testimony, it is not reasonably probable that, had Mercer's testimony on this issue been excluded, the jury would have returned a more favorable verdict to defendant on this count. II. Doe 3: Counts 10 and 11—Separate Occasions
A. Background
The trial court imposed mandatory consecutive sentences of 50 years to life on count 10 (rape) and count 11 (oral copulation) pursuant to section 667.6, subdivision (d), which provides that a full, separate, and consecutive term shall be imposed for such offenses if the crimes involve the same victim on separate occasions. Whether the commission of sex crimes against a single victim occurred on "separate occasions" turns on whether the defendant had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior. (Ibid.)
In concluding the act of oral copulation and the rape of Doe 3 were separate occasions within the meaning of section 667.6, subdivision (d), the trial court ruled as follows:
"[THE COURT:] The Court—while there are some subtleties involved, one of the significances to me, and the Court's finding on this, is that the commission of the forcible oral copulation which was then finished with the rape—forcible rape of [Doe 3], that there was a change in position from the oral copulation, which was not simply a minor change of position but which was a significant change of position with specific directions and with statements made by the defendant, as well as the removal by [Doe 3] or a changing of position, and dislocation, is the term I use, of an article of clothing. [¶] ... [¶]
"Based upon the comments he was making, the detailed directions he was giving to [Doe 3], the movement of [Doe 3] and the dislocation of the clothing, the Court does find that he had ample opportunity or sufficient opportunity to reflect as far as [Doe 3] on the—his actions and so, nonetheless, he resumed his sexual assaultive behavior once he then committed the act of rape as set forth in Count 10 on [Doe 3]."
B. Analysis
Defendant asserts the trial court abused its discretion in finding counts 10 and 11 constituted separate occasions for purposes of section 667.6, subdivision (d), because there is no evidence he had a reasonable opportunity to reflect on his actions. We disagree.
On review, we will reverse the trial court's determination "'only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.'" (People v. King (2010) 183 Cal.App.4th 1281, 1325 (King), quoting People v. Garza (2003) 107 Cal.App.4th 1081, 1092 (Garza).)
Defendant maintains this case is appreciably different from Garza, King, and People v. Magana (1991) 230 Cal.App.3d 1117 (Magana) in that he never struck Doe 3 between the two sex acts, paused, or was interrupted by some other occurrence giving him any chance to reflect. Instead, he contends this case is more similar to People v. Pena (1992) 7 Cal.App.4th 1294, 1316 (Pena), where the appellate court concluded "simply" flipping the victim over to commit another sexual assault did not constitute a separate occurrence. Defendant also argues this case is similar to People v. Corona (1988) 206 Cal.App.3d 13, 14 (Corona), where the court concluded the first set of assaults occurred in an uninterrupted sequence even though it involved different sex acts.
In Corona, the defendant kidnapped the victim from her home and drove off with her. (Corona, supra, 206 Cal.App.3d at p. 15.) Upon stopping the car, he kissed the victim, penetrated her vagina with his finger, applied his mouth to her genitals, and then penetrated her vagina with his penis. (Ibid.) The defendant then exited the car, but came back to the car five minutes later to sexually assault the victim yet again. (Ibid.) The trial court sentenced the defendant to consecutive sentences under section 667.6, subdivision (d), for each of the four sex offenses. (Corona, supra, at p. 16.) In concluding the first three sex crimes were part of a continuous sequence without adequate time for reflection, the appellate court reasoned "there was no cessation of sexually assaultive behavior hence defendant did not 'resume[] sexually assaultive behavior.'" (Id. at p. 18, citing § 667.6, subd. (d).)
In Pena, the defendant raped the victim in her home and then "got off of her, twisted her by the legs violently, and orally copulated her." (Pena, supra, 7 Cal.App.4th at p. 1299.) The trial court imposed consecutive sentences for the two sex crimes, which the appellate court reversed noting "nothing in the record ... indicates any appreciable interval 'between' the rape and oral copulation. After the rape, [the] appellant simply flipped the victim over and orally copulated her. The assault here was ... continuous. [The] [a]ppellant simply did not cease his sexually assaultive behavior, and, therefore, could not have 'resumed' sexually assaultive behavior." (Id. at p. 1316.)
The appellate courts reached a different conclusion in Garza, King, and Magana. In Garza, the victim accepted a ride from the defendant, whom she knew. (Garza, supra, 107 Cal.App.4th p. 1086.) He parked his car by a warehouse and sexually assaulted her. (Id. at pp. 1086-1087.) The Court of Appeal "conclude[d] the trial court here could reasonably have decided that counts 3, 7, and 15 (forcible oral copulation, rape, and forcible digital penetration) occurred on separate occasions. After [the] defendant forced the victim to orally copulate him, he let go of her neck, ordered her to strip, punched her in the eye, put his gun to her head and threatened to shoot her, and stripped along with her. That sequence of events afforded him ample opportunity to reflect on his actions and stop his sexual assault, but he nevertheless resumed it. Thus, [the] defendant's first act of rape was committed on a separate occasion from the forcible oral copulations. [Citation.] [¶] Similarly, [the] defendant had an adequate opportunity to reflect upon his actions between the time he inserted his finger in the victim's vagina and the commission of the first rape. During this interval, [the] defendant (1) began to play with the victim's chest; (2) put his gun on the back seat; (3) pulled the victim's legs around his shoulders and, finally, (4) forced his penis inside her vagina." (Id. at pp. 1092-1093.)
In King, the defendant was an officer with the Los Angeles School Police Department. (King, supra, 183 Cal.App.4th at p. 1286.) He stopped a young woman late at night after she made an illegal U-turn and conducted a full body search of her, which included massaging her breasts inside her bra and digitally penetrating her vagina twice. (Id. at p. 1287.) While the defendant was digitally penetrating her, some lights passed by and he removed his fingers. (Id. at p. 1290.) The victim testified the defendant "'kind of looked around. And he looked uneasy. But after the car passed by, he reinserted his fingers in [her] vagina and resumed searching' with his other hand." (Ibid.) The appellate court affirmed the trial court's imposition of consecutive sentences for the two counts of digital penetration. (Id. at p. 1287.)
And, finally, in Magana, the defendant accosted the victim with a knife as she was walking home from work. (Magana, supra, 230 Cal.App.3d at p. 1119.) He forced her to a park where he tied her to a tree; unable to remove her clothes, he untied her, threw her on the ground, and ordered her to take off her clothes. (Id. at pp. 1119-1120.) He raped her, then turned her over, put her on her knees and inserted his finger into her anus before inserting his penis. (Ibid.) After he turned her back over again, he raped her again. (Ibid.) In affirming the trial court's finding two of the rapes were separate occasions, the appellate court reasoned "there was a break in time between the two rapes. Although [the] appellant was not convicted of the other sexual charges, it is apparent that other activity occurred in the interim and, as the court found, the 'two acts of rape were definitely distinct and independent of each other.'" (Id. at p. 1121.)
While there are distinctions that may be made from the facts here to those in each of the cases discussed above, none compel the conclusion the trial court erred. The "'separate occasions'" standard is broad, and our Supreme Court has recognized the Courts of Appeal "have not required a break of any specific duration or any change in physical location" for sex crimes against the same victim to be considered to have occurred on separate occasions. (People v. Jones (2001) 25 Cal.4th 98, 104.)
Turning to the facts of this case, while fully clothed, Doe 3 was forced to her knees to orally copulate defendant; after oral copulation, he pulled on her hair and started making comments to her. He then demanded she remove her pants, turn around, and bend over on her knees at which time he commenced the rape. While a mere position change can provide a reasonable opportunity for reflection and constitute a separate occurrence, here there was more than a position change unlike in Pena, supra, 7 Cal.App.4th at page 1299. Between the two acts, defendant started speaking to Doe 3, pulling her hair to move her, and directing her to take off her pants, all of which required a pause between sex crimes sufficient for him to reflect on his actions before resuming his sexual assault, similar to Magana, supra, 230 Cal.App.3d at page 1119. Whether a pause commences because of a car passing by (King, supra, 183 Cal.App.4th at p. 1290), because there is other activity occurring (Magana, supra, at pp. 1119-1120), or because the assailant pauses to inflict additional physical force or threats between acts (Garza, supra, 107 Cal.App.4th at p. 1086), such pauses or interruptions between sex crimes can provide a reasonable opportunity for reflection. Here, the talking, undressing, and changing Doe 3's position created a distinct interval between the two sex crimes during which a reasonable trier of fact could conclude there was a reasonable opportunity for defendant to reflect on his actions before he resumed his assaultive behavior. The trial court did not err in concluding these crimes occurred on separate occasions within the meaning of section 667.6, subdivision (d).
III. Remand for Resentencing
In a bifurcated proceeding, the trial court found true defendant had been convicted of a prior serious felony. At sentencing, the trial court imposed a five-year enhancement on each of the counts 1, 4, 6, 8, 9, 10, and 11 (for a total of 35 years) pursuant to section 667, subdivision (a).
Prior to 2019, trial courts had no authority to strike a prior serious felony conviction enhancement under section 667, subdivision (a)(1). Senate Bill No. 1393 removed this prohibition. The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).)
Defendant contends Senate Bill No. 1393 applies to him because the statute is retroactive and applies to all cases, such as this one, not yet final as of its effective date. He requests we remand so the trial court may exercise its new discretion and consider striking the prior serious felony conviction enhancements.
The People agree Senate Bill No. 1393 is retroactive and that it cannot be determined whether the trial court would have sentenced defendant to the additional 35 years it imposed for the section 667, subdivision (a), allegation had there been discretion not to do so.
In the absence of evidence to the contrary, amendments to statutes that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty, such as Senate Bill No. 1393, apply to all defendants whose judgments are not final as of the amendment's effective date. (In re Estrada (1965) 63 Cal.2d 740, 742.) In enacting Senate Bill No. 1393, the Legislature did not indicate the law should have only prospective application. (See People v. Garcia (2018) 28 Cal.App.5th 961, 972.) Thus, Senate Bill No. 1393 applies retroactively to this case. (In re Estrada, supra, at p. 742.)
We are not required to remand to allow the court to exercise its discretion if "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement" even if it had the discretion to do so. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) For purposes of this inquiry, it is not necessary that the trial court specifically stated at sentencing it would not strike the enhancement; instead, the trial court's statements and sentencing decisions are reviewed to infer what its intent would have been. (See People v. McVey, supra, 24 Cal.App.5th at p. 419 [no remand where, "[i]n light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether"].)
There is nothing in the record before us from which we could confidently conclude the trial court would not strike the prior felony conviction enhancements out of leniency toward defendant. As such, remand is appropriate.
DISPOSITION
The judgment is affirmed, and the matter is remanded to allow the trial court to exercise its discretion to strike or dismiss defendant's prior serious felony conviction enhancements under section 667, subdivision (a).
The People request correction of the abstract of judgment to reflect the term of imprisonment imposed on count 7, which was then stayed under section 654. We discern no error in the abstract in this respect as the sentence on count 7 was stayed; the requested correction is unnecessary.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SNAUFFER, J.