Opinion
B228630
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. BRIAN DONALD GRAHLMAN, Defendant and Appellant.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA075613)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. Affirmed.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Brian Donald Grahlman of three felonies arising out of his sexual assaults against a woman identified at trial as Jane Doe: (1) assault with intent to commit a felony—rape, sodomy, or oral copulation—in violation of Penal Code section 220, subdivision (a); (2) attempted forcible oral copulation (§§ 664/288a, subd. (c)(2)); and (3) attempted forcible rape by use of drugs (§§ 664/ 261, subd. (a)(3)). The trial court imposed consecutive sentences of the upper term of four years for the attempted oral copulation and forcible rape convictions for a total of eight years. The court imposed and stayed a six-year upper term sentence for the section 220 conviction.
All further statutory citations are to the Penal Code.
In his timely appeal, defendant contends: (1) he was denied his state and federal constitutional rights to a representative and impartial jury because the trial court erroneously overruled the defense motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) to prevent the prosecution from striking two African-American jurors; and (2) section 654's proscription against multiple punishments proscribed the imposition of sentences for both attempted forcible oral copulation and attempted forcible rape.
We affirm.
STATEMENT OF FACTS
In July 2009, Tara Landauer shared a home on 20th Street in Manhattan Beach with Jane Doe. Their next door neighbors were Adam Deritter and Shaun Roy, whose single family residence shared a patio with the home of Landaurer and Doe. There was access to both residences through a side gate that opened onto the patio. At approximately 3:00 p.m., on July 18, Landauer and Doe went to the patio to play ping pong. Both women had two vodka, champagne, and lemon cocktails. Doe was wearing a white sundress and had no visible injuries.
Deritter joined them in the patio. At 8:00 p.m., Deritter drove the two women to a restaurant, where he dropped them off. Both women were "a little tipsy," but Doe was slurring her speech and talking loudly, and seemed more intoxicated than Landauer. The two women shared two large bottles of sake at the restaurant. Doe also had a glass of wine. She slumped over in her chair, had difficulty focusing, was slurring her speech, and was unable or unwilling to talk. She lost her balance and sat back down when she tried to get up from the table. At approximately 10:00 p.m., Landauer decided Doe needed to go home and helped her out of the restaurant. Doe was unable to walk by herself, so Landauer supported the stumbling and weaving Doe with her arm.
Doe fell as they walked through the parking lot to a bar where Landauer was meeting some friends. Landauer walked Doe to a nearby taxi cab, helped her inside, gave the driver $20, and told the driver to take Doe to their address, which was five blocks away. Landauer returned to the bar. Within an hour, she received a text message from Deritter to the effect that Doe was being raped. She thought it was a joke and wrote back that it was not funny.
Deritter testified that he sent Landauer a text message asking who Doe came home with, and she responded, "no one?"
Landauer did not see Doe until the following afternoon. At that time, Doe was upset, her hair was very disheveled, and her arms and leg had big black bruises that were not present the night before. Landauer had never seen defendant, defendant was not the taxi cab driver, and she did not see him at the restaurant.
Deritter had returned home after driving the women to the restaurant. Doe had been wearing a short dress and had no visible injuries. Deritter heard a car door slam. Looking out from his bedroom window, Deritter saw Doe with defendant, who was an older man he had never seen before. Defendant was trying to kiss Doe, who kept turning away and saying, "no." She appeared to be very intoxicated, slurred her speech, and had trouble standing and walking. Defendant told her, "It's okay." When a car passed, defendant pulled Doe down onto his lap and sat on a ledge, where he "started groping her" legs and breasts, while she tried to get away. Doe told defendant, "No, this isn't going to happen."
As Doe struggled to get up, she fell over and supported herself with her arms on the ledge. Defendant went behind her, unzipped his pants, pulled out his erect penis, lifted her dress, and began "thrusting or humping her" for approximately 20 seconds, while she protested. At that point Deritter called the 911 operator. Meanwhile, Doe "was able to squirm away" and sit down on the ledge. Defendant walked toward her while stroking his penis. He faced Doe and pulled her toward it, but she turned her face away, and repeated, "No, this isn't going to happen."
An audiotape of Deritter's 911 call was played to the jury, in which Deritter said that defendant "might be trying to rape" his neighbor. She was telling defendant to stop, and he was masturbating in her face. Deritter described Doe as being "hammered."
Deritter initially thought defendant's actions were "more or less harmless" attempts to kiss and grope, but soon he realized Doe was too intoxicated to "take care of herself." He thought it best to call the police, rather than call out for defendant to stop, because he thought defendant might get away.
Roy returned from work between 10:15 and 10:30 that night. Between 11: 00 and 11:30 p.m., he heard a car door slam and Doe's distinctive voice, speaking to a cab driver. She was very loud and her slurred speech sounded intoxicated. Three to four minutes later, Deritter called to him from his bedroom. Roy looked out the bedroom window, and from a distance of 20 to 30 feet, Roy saw Doe talking to defendant. She said, "What are you doing? I can't believe you're doing this." Doe was standing up, but swaying. Defendant's manner of approaching Doe was furtive and suspicious. It "creeped [him] out."
When a car passed, defendant hid behind Doe. She dropped something and bent over to pick it up. Defendant lifted her dress from behind to look underneath. At that time, Doe was wearing her underwear. Defendant sat on a ledge and pulled Doe onto his lap. Doe pulled herself away, but he pulled her back down. All the time, she objected to defendant's actions, saying: "Why are you doing this?" "I can't believe you're doing this." "Put that away." Doe fell onto the ledge as she struggled to get away. Roy noticed that Doe's underwear had been removed and was on the ground.
Defendant groped himself in the groin area over his pants. He unbuttoned the fly of his pants and appeared to be masturbating with his hand as Doe sat in front of him. At one point, she laughed and appeared embarrassed, saying "I can't believe you're doing this." Doe tried to walk away, but defendant "kept pulling her closer." She told him to stop and repeated, "I can't believe you're doing this" and "Get that out of my face." Defendant hid his face behind Doe as cars passed by. After Doe's underwear had been removed, defendant positioned Doe against the ledge on her hands and knees. While holding his penis, defendant lifted Doe's dress and began thrusting his groin against her, as if trying to penetrate her for 15 to 20 seconds. Doe groaned painfully and cried, "I can't believe you're doing this. Ow." "[S]he was objecting the whole time." She never reciprocated his advances.
Manhattan Beach Police Officer Michael Allard responded to the scene in his patrol car at 11:36 p.m. The officer shined his light on defendant and Doe. Defendant had his back to the officer; Doe was sitting on a three-foot ledge. Officer Allard directed defendant to move away from Doe and sit down, while the officer waited for backup support. Doe was so intoxicated that she could not speak and was unable to stand up without falling. Officer Nicholas Braasch arrived a few minutes after Officer Allard. Defendant was sitting down with his pants fly partially unzipped.
When Officer Claudia Heydinger responded to the scene, Doe's hair was messy, her clothes were disheveled, she was barefoot, and smelled of alcohol. She was very loud and argumentative. Doe sat on a concrete ledge, but "was kind of falling over as she was sitting there." Doe responded, "Fuck you," when the officer asked if she was okay. When Officer Heydinger asked for Doe's name, her response was so slurred that the officer could not understand her words. The officer caught Doe twice to prevent her from falling to the ground. Doe punched an officer five or six times in the chest. The officers decided to take her into custody because Doe's keys did not unlock the gate and she was "so wasted that she couldn't take care of herself." Doe tried to kick out the window of the patrol car. She was restrained with her seatbelt and did not injure herself. Doe was placed in the "drunk tank" at the police station.
The following morning at 7:35, Detective Brian Brown interviewed Doe in jail. She was disheveled and smelled of alcohol. The officer asked if she would cooperate in an investigation of whether she had been a crime victim. Doe told him that her bikini bottoms were missing. Officers recovered them from a trash can at the scene of the incident.
Doe testified that she vaguely remembered leaving the restaurant but not getting into the taxicab, and her next memory was of waking up in the police station the following morning. She did not know defendant, he was not her friend, and she never consented to his touching her body in any manner. When she awoke in the police station, she noticed a lot of bruises on her body. She realized her underwear was missing and began to cry when Detective Brown spoke to her in the jail cell. She agreed to have a sexual assault examination at a nearby hospital. The examiner photographed her body and genitalia. The bruises on her body as depicted in the photographs were not present when she left home on the night of the incident.
Doe was taken to the Redondo Beach Women's Wellness Center for the examination. Doe told the nurse she had a preexisting bruise on her right calf, and she had not had intercourse within the past five days. She had been drinking alcohol the previous night and used marijuana. Doe said she had suffered memory loss and had no information about suffering an assault. She was unsure whether she had been vaginally or anally penetrated or had been orally copulated.
The examining nurse noted multiple bruises and abrasions on Doe's arms, legs, and shoulders, along with red spots and swelling on Doe's head. Swabs were collected from Doe's breasts, mouth, and neck. The nurse took potential semen samples from Doe's vagina, as well as swabs from her vaginal and anal areas. Blood and urine samples were taken from Doe for toxicology analyses and a blood sample for DNA analysis. Although the nurse found no injuries to Doe's vaginal area, the other injuries she suffered were consistent with a sexual assault. The absence of injury to the vagina did not exclude the possibility of forcible penetration.
Senior criminalist Kristen Fraser examined the items in the sexual assault kit, along with Doe's bikini bottoms and dress. She detected no semen but found amylase, which is found in saliva and other bodily fluids, on the swabs taken from Doe's neck, right breast, and vulva. Criminalist Fraser sent those samples to another laboratory for DNA analysis. The dress and bikini bottom tested negative for sperm. Criminalist Daniel Gregonis examined the DNA samples. Defendant's DNA profile matched the neck and breast samples; defendant was also a possible contributor to the DNA found in the vulva sample.
Testing of Doe's blood sample showed a blood-alcohol level of .10 percent at 11:15 a.m., when the blood was drawn. The level could have been as high as .33 percent at 11:36 p.m. the previous night. At that level, a person of Doe's size could experience an inability to maintain balance, difficulty in speaking, memory lapses, or "blackouts." It would also be possible that the person would exercise poor judgment.
The prosecution presented evidence of three prior sexual offenses by defendant. In April 1986, defendant appeared to be masturbating after calling to a woman from his van and asking, "Do you want to see my dick?" In June 1987, defendant exposed himself to a woman while he was masturbating in a van. In October 2000, defendant was observed seated in a parked van, exposed, and masturbating.
DISCUSSION
Batson/Wheeler
Defendant contends he was denied his state and federal constitutional rights to a representative and impartial jury because the trial court erroneously overruled the defense motion under the Batson/Wheeler line of cases to prevent the prosecution from striking two African-American jurors. We disagree.
Wheeler held that a prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group membership violates a criminal defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) Batson held, among other things, that such a practice violates a defendant's right to equal protection of the law under the United States Constitution's Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 96.) The Batson/Wheeler principles apply to peremptory challenges excusing jurors improperly on the basis of race, gender, or ethnic grounds. (United States v. Martinez-Salazar (2000) 528 U.S. 304, 315; People v. Willis (2002) 27 Cal.4th 811, 813-814.)
The standard for reviewing a Batson/Wheeler motion is well established. As set forth in People v. Lenix (2008) 44 Cal.4th 602 (Lenix), state and federal constitutional authority imposes a three-step inquiry: "First, the trial court must determine whether the [moving party] has made a prima facie showing that the [opposing party] exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the [opposing party] to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the [moving party] has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. [Citations.]" (Lenix, supra, at pp. 612-613.)
Our review of a trial court's ruling on a Batson/Wheeler motion is deferential, meaning that we examine "only whether substantial evidence supports its conclusions." (See Lenix, supra, 44 Cal.4th at p. 613, citing People v. Bonilla (2007) 41 Cal.4th 313, 341-342.) We therefore exercise great restraint in reviewing a lower court's determination of the sufficiency of the moving party's reasons for making peremptory challenges. (Lenix, supra, at pp. 613-614.) "'So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]'" (Id. at p. 614, citing People
v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).)In assessing the lower court's findings on the question of purposeful discrimination, "we must 'rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 908.) As the Supreme Court stated in Batson: "'[T]he trial judge's findings in the context under consideration here largely will turn on evaluation of credibility,' and for that reason 'a reviewing court ordinarily should give those findings great deference.'" (Ibid., quoting Batson, supra, 476 U.S. at p. 98, fn. 21.)
As we explain, the trial court's ruling was reasonable and entitled to deference, as it derived from a credibility determination that was supported by substantial evidence in the record. Defendant's Batson/Wheeler motion pertained to the prosecution's peremptory challenge of prospective Juror No. 3. She was divorced, had an adult son, and was employed by Los Angeles County as an eligibility investigator for persons applying for various forms of public assistance. During voir dire, she said her son "has been arrested three times for racial profiling." When asked to expand upon her response, Juror No. 3 reiterated that her son had been arrested three times "for racial profiling" by the sheriff's department. The court asked what she meant by "racial profiling." The prospective juror explained, "That's what the attorney said it was." When her son was 16-years-old, "he was arrested for hanging out with the kids at the bus stop . . . on his way to school." The police mistakenly believed he was involved in a robbery. When her son was 17-years-old, he was also arrested for a robbery in a case of mistaken identity and released approximately two weeks later. In a third case of mistaken identity, her son was arrested for robbery and served 90 days in juvenile detention before being released. Juror No. 3 no longer harbored any ill will against the sheriff's department.
When asked how the law enforcement personnel treated her son, Juror No. 3 responded that the arresting officer "had a history of assaulting . . . teenage kids" and was terminated from the sheriffs department. Her son was not abused but her nephew, who was arrested at the same time, was abused. In the second two instances, her son said it was "fine." Those instances would not cause her to be biased in deciding defendant's case since they were "totally different circumstances." The prospective juror had many friends in law enforcement and had dated a person who became a deputy sheriff. She said that she did not believe peace officers should be treated differently from other witnesses.
The prosecutor exercised his next peremptory strike against Juror No. 3. In a hearing conducted outside the jury's presence, defense counsel brought a Wheeler motion on the ground that the prosecutor had "excused the only two African-American jurors that were in the box." Counsel perceived the challenge to Juror No. 3 was racially motivated because the prospective juror's responses "were pretty much along the lines of everybody else[']s." Although the "racial profiling" response "was somewhat controversial," the prospective juror "basically said that really doesn't affect her" and she had "a lot of friends in law enforcement."
Based on the use of the challenges against African-Americans, the trial court found a prima facie case of discrimination under Batson/Wheeler and ordered the prosecutor to explain his actions. As to the first African-American prospective Juror No. 12, the prosecutor stated that he was a student, "appeared young," and his demeanor indicated "he was not happy to be here."
As to Juror No. 3, the prosecutor was concerned about the juror's belief that her son had been harassed by the police, as indicated by her statement that his arrests were the product of "racial profiling." The prosecutor perceived Juror No. 3 harbored an anti-law enforcement bias, despite the juror's representation that in evaluating the officers in defendant's case, she would not consider the acts by the sheriff's department against her son. Additionally, the prosecutor anticipated defendant would testify that his arrest resulted from police harassment based on his being a registered sex offender, and that he had been wrongfully arrested in the past. "I just feel like given the facts of the case, I can't tell whether or not there will be something about this particular juror's experience with her son that would have her be unfairly aligned to the defense."
Trial counsel responded that the juror's past experience was irrelevant because there would be no issue of racial profiling. He also argued the inference of anti-police animus was diminished by Juror No. 3's statement that it was her son's lawyer who characterized the arrest as racial profiling. The trial court disagreed, explaining that its perception of the prospective juror's antipathy was based on her tone of voice and attitude: "I have a real question as to whether she really does have no ill feelings towards law enforcement. I have a real question about that."
In ruling on defendant's motion, the trial court accepted the prosecutor's race-neutral basis for challenging prospective Juror No. 12. Regarding Juror No. 3, the court found the reference to her son's being "arrested for racial profiling" supported a reasonable inference of an animus against law enforcement personnel. The court was dubious of the juror's representation to the contrary. "I think her true feelings were expressed" when she said her son's arrests were due to "racial profiling." The court denied the Batson/Wheeler motion, finding the prosecutor's race-neutral explanation, based on bias against the police, was credible.
Defendant does not dispute that negative experiences with law enforcement and anti-police bias are legitimate race-neutral bases for exercising peremptory strikes. (See e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.) However, he asserts the record belies the finding that the prosecutor relied on that explanation in good faith. Under these facts, we find Juror No. 3's disclaimer of bias and representation the she would be fair did not invalidate the trial court's credibility determination. The Gutierrez opinion is instructive, as the circumstances are strikingly similar to those below: "[The prospective juror's] claim that she could remain impartial could be discounted in light of her fixation on the incident, which she related in great detail. She also related she had received an unfair parking ticket, which she successfully fought. A prospective juror's negative experiences with law enforcement can serve as a valid basis for peremptory challenge." (Ibid.; see also Wheeler, supra, 22 Cal.3d at p. 275 [explaining that a prosecutor may legitimately "fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment"].)
Nor do we agree with defendant's assertion that the prosecutor's failure to engage Juror No. 3 in more extensive questioning supports a finding of discriminatory intent. (Cf. People v. Turner (1986) 42 Cal.3d 711, 727 ["prosecutor's failure to engage Black prospective jurors 'in more than desultory voir dire, or indeed to ask them any questions at all,' before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias"].) Here, as described ante, the trial court engaged in extensive voir dire on the relevant subject and the prosecutor offered the reasonable explanation that additional questioning on law enforcement animus might have improperly disclosed a potential defense. Moreover, contrary to the findings in Turner, the trial court in defendant's case did not accept the prosecutor's explanation "at face value." (Ibid.) Rather, the court made its own independent credibility assessment, based on the juror's demeanor and tone of voice.
The fact that defendant's trial would present no issue of racial profiling does not serve to expose the prosecutor's explanation as a sham. As the trial court pointed out, Juror No. 3's reference to racial profiling supported a reasonable inference of bias against peace officers—and, more specifically, that she distrusted the manner in which police officers conducted arrests. While it is true that Juror No. 3 gave other answers (such as her representation that she had friends in law enforcement) that could support an inference that she would not be biased against law enforcement witnesses, those answers merely amounted to additional factors for the trial court to consider in making its credibility assessment.
Additionally, in order to show the prosecutor's proffered race-neutral explanation was pretextual, defendant urges us to undertake a comparative analysis of the characteristics of the unchallenged prospective jurors who gave similar responses to those of Juror No. 3, but who did share her African-American racial background. Trial counsel, however, did not attempt such a comparative analysis. In Lenix, supra, 44 Cal.4th 602, the court explained the manner in which we should undertake a comparative juror analysis. "When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers." (Id. at p. 623.) "Defendants who wait until appeal to argue comparative juror analysis must be mindful that such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent. (See Hernandez v. New York [(1991)] 500 U.S. [352,] 365.) Additionally, appellate review is necessarily circumscribed. The reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment. Further, the trial court's finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made." (Lenix, supra, at p. 624.)
Our review of the record demonstrates that a comparative review adds nothing of substance to defendant's Batson/Wheeler argument. Defendant identifies six prospective jurors who reported "problems with law enforcement" in terms of their own criminal history or that of their relatives or spouses. As the Attorney General points out, however, none of those prospective jurors gave answers that supported a strong inference of anti-police bias—certainly none complained of police harassment. For instance, although Juror No. 5572 stated that his wife was convicted of giving false information to the Department of Motor Vehicles, the juror said he did not believe she was treated unfairly. Similarly, although Juror No. 2113 had been convicted of four misdemeanors and had "also been arrested and released for things [he] didn't do," the prospective juror did not voice or imply any sense of injustice: "The times I got convicted I was guilty, and the times I got released I wasn't guilty."
Defendant also argues that a comparative analysis of prospective Juror No. 12 helps bolster his argument. However, defendant acknowledges that the proffered explanation for the challenge found credible by the trial court was race-neutral and contends it only appears suspicious in light of the comparative analysis as to Juror No.3. Because both challenges were race-neutral, the comparative analysis argument is without merit.
In sum, our independent review of the record demonstrates that the trial court made "'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered'" and its conclusions are therefore "'entitled to deference on appeal.'" (Lenix, supra, 44 Cal.4th at p. 614, quoting Burgener, supra, 29 Cal.4th at p. 864.)
Section 654At sentencing, the prosecution requested imposition of consecutive terms on all three convictions—assault with intent to commit a sex offense, attempted forcible oral copulation; and attempted forcible rape by use of drugs—pursuant to section 667.6, subdivision (c), which provides the sentencing court with discretion to impose enhanced punishment for enumerated sex offenses under specified circumstances. Here, although the trial court agreed that the two attempted sex offenses were separate acts that warranted separate sentences, it found defendant's conduct in committing those two crimes comprised the same conduct and objective in committing the assault offense. Accordingly, it imposed two four-year upper consecutive terms for the attempted oral copulation and rape, but stayed imposition of the six-year upper term for the assault pursuant to section 654.
Section 654 provides in pertinent part as follows: "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."
Relying on People v. Liakos (1982) 133 Cal.App.3d 721 (Liakos), defendant contends section 1170.1's sentencing protocol, combined with section 654's proscription against multiple punishments, mandated the imposition of the six-year upper term for the section 220 assault as the base offense, but required the staying of the two four-year terms for the other sex offenses. The claim fails because the trial court reasonably exercised its sentencing discretion under section 667.6, subdivision (c), which provided an alternative sentencing protocol, based on defendant's present sexual assault conviction. "That statute was intended to allow enhanced punishment of certain sexual offenders who commit multiple offenses. [Citation.] 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.' [Citation]." (People v. Hicks (1993) 6 Cal.4th 784, 796 (Hicks); see also People v. Andrus (1990) 226 Cal.App.3d 73, 78 (Andrus) ["Penal Code section 667.6, subdivision (c) is a legislatively created exception to the rule that section 654 prohibits separate punishment of multiple acts committed during an indivisible course of conduct."].)
Section 667.6, subdivision (c) provides: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Emphasis added.) The assault with intent to commit a sexual offense charged in count 1 is "an offense specified in subdivision (e)" that triggers the application of subdivision (c), allowing the trial court to impose a full, separate, and consecutive term.
The statute was amended in 2006 to authorize imposition of a full, separate, and consecutive term based on a "present violation" of section 220. (Stats. 2006, ch. 337, § 32, pp. 2164-2165, approved by voters as Prop. 83, eff. Nov. 8, 2006.) Defendant's convictions under section 288a, subdivision (c)(2), and section 261, subdivision (a)(3), offenses are not enumerated crimes in section 667.6, subdivision (e).
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Defendant points out that in Liakos, "[t]he People concede[d] the assault was the means by which the oral copulation was attempted. Accordingly, they concede that the sentence in count two, attempted oral copulation, should be stayed pursuant to . . . section 654." (Liakos, supra, 133 Cal.App.3d at p. 725.) Defendant's reliance on the section 654 analysis under Liakos, however, is foreclosed by application of the plain terms of section 667.6, subdivision (c), under the reasoning of Hicks. The Liakos opinion, issued in 1982, had no occasion to consider section 667.6, subdivision (c). In Hicks, however, our Supreme Court analyzed the application of section 654 to enumerated sex offenses in light of the intervening enactment of section 667.6, subdivision (c). There, the defendant contended section 654 barred the imposition of separate punishments for burglary and the two sexual offenses that were incidental to that burglary. The Supreme Court rejected that argument, concluding section 654 did not bar separate punishment for the burglary, even though the burglary was the means of facilitating the sexual assault, and defendant committed the burglary with the intent to subject the victim to a sexual assault. (Hicks, supra, 6 Cal.4th at pp. 796-797.) Hicks held that "the imposition of a sentence for the burglary conviction, in addition to the consecutive full-term sentences imposed for the related enumerated sexual offenses, was authorized by section 667.6[, subd.] (c), notwithstanding section 654's general proscription against multiple punishment for offenses committed during an indivisible course of conduct." (Hicks, supra, at p. 797; see also Andrus, supra, 226 Cal.App.3d at p. 79 ["[W]e conclude . . . section 654 does not prevent punishing appellant for both kidnapping and the sex offenses, even though the kidnapping was for the purpose of committing the sex offenses."].)
The trial court's sentence in this matter amounted to a straightforward application of the Hicks rationale that section 667.6, subdivision (c) was intended to displace section 654's general proscription against multiple punishment for offenses committed during an indivisible course of conduct, when a defendant is convicted of an enumerated offense under section 667.6, subdivision (e).
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.