Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04CF3131 M. Marc Kelly, Judge. Consolidated with a petition for writ of habeas corpus.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Santiago Huerta appeals from a judgment after a jury convicted him of kidnapping, sexual penetration by a foreign object by force, sodomy by force, second degree robbery, assault with a deadly weapon, assault with force likely to cause great bodily injury, and criminal threats, and found true the allegation he personally used a deadly weapon. He argues: (1) insufficient evidence supports the sodomy by force and assault with a deadly weapon convictions; (2) he was improperly convicted of multiple kidnapping and assault with a deadly weapon counts; (3) the trial court erroneously failed to answer the jury’s question regarding the sodomy jury instruction; (4) the court erroneously sentenced him to the upper term and consecutive sentences; and (5) the court illegally sentenced him to consecutive and concurrent sentences for the same conduct. Alternatively, in a petition for writ of habeas corpus, Huerta contends he received ineffective assistance of counsel because his defense counsel acquiesced in the sodomy jury instruction. We ordered consolidation of the petition with the appeal. We agree, as does the Attorney General, with Huerta’s claim his multiple kidnapping convictions were improper, and we reverse three of his convictions. None of his other contentions have merit, and we affirm the judgment in all other respects. We deny the petition.
FACTS
In July 2004, “Catalina” began calling Adrian R. on his cellular telephone. She told him that she wanted to get to know him and be his friend. Approximately two weeks later, he told her that he was not going to take her calls any longer unless she told him who she was. She agreed to meet him “on a street.” When they met, “she hugged [him] and kissed [him],” and told him her name was Maria Portugal.
Following the meeting, Portugal continued to call Adrian. For his birthday, she picked him up in her car, and took him to a nearby motel. They continued to meet each other and at some point, became sexually intimate. She never told him that she was married.
Approximately six weeks later, Adrian saw Portugal with another man. When he asked her who the man was, she told him it was her “significant other.” He told her that he did not want to see her anymore because “[she was] going to cause problems for [him].” And, “she told [him] that she was going to tell her husband[]” and “that [he] was going to be sorry.”
Later that day, Portugal called him and told him to meet her and her husband in a nearby alley because her husband wanted to speak with him. Adrian was afraid, but he went. In the alley, he met Huerta, whom he identified at trial, and Huerta asked him “who did [he] think [he] was, and he wanted to beat [him].” Adrian told Huerta that Adrian did not bother her.
The following evening, Portugal called Adrian and told him that she missed him and that Huerta had left her, and asked him “if [he] wanted to go with her to her country.” He said, “yes,” and agreed to meet her at a nearby Santa Ana restaurant. When she arrived at the restaurant, Adrian got into the car’s passenger seat, and she locked the doors and drove away. She asked him for his cellular telephone, and “if [he] was carrying a weapon.” He said, “Well, why would I be armed?” She pulled the car into an alley and stopped. Huerta and another man walked towards the car; Huerta got into the back seat behind Portugal, and the other man entered the car behind Adrian. Huerta pulled him into the back seat, while the other man grabbed his neck with his right arm. They put him on the floor and put their feet on him to hold him down. Adrian moved to try to get up, but they hit him on the back, mouth, and nose. Portugal drove as Huerta gave her directions.
Huerta asked Adrian why “[he] gone out with [Portugal][,]” and asked him “[i]f [he] knew that she was married.” When he tried to answer Huerta, Huerta would hit him. He also felt a “‘pricking’” on his back and leg. He did not see any weapons because he had his eyes closed. Huerta threatened to kill him.
Portugal stopped the car somewhere in Riverside County. The unidentified man said Huerta should force Adrian to “kiss” his penis, but Huerta was afraid he would “tear[] it off.” The man grabbed Adrian and held him down while Huerta lowered Adrian’s pants and inserted what felt like his finger into his anus and made a circling motion. Huerta turned Adrian towards Portugal and told him to look at her because he was going to feel what she had felt, and he threatened to kill him. Huerta pulled down his pants, and Adrian felt a “more severe” pain as a larger object entered his anus.
They pushed him out of the car and threw his pants and shirt at him. They kept his jacket, necklace, earrings, and his wallet, which contained $300. After they drove away, Adrian, with a bloody face, stopped a truck driver for help.
Officer Frank Fajardo went to the Moreno Valley Police Department and spoke with Adrian. His lips and cheeks were swollen, and he complained of pain to his butt and mouth. The next morning, Fajardo spoke with Adrian again. Adrian said that as Huerta sexually assaulted him, he held a knife. Adrian stated that when he began to cry, Huerta said that he was going to cut his tongue out if he did not stop. He also said that as the men beat him, he saw something with “two points with a light” placed against his thigh, causing an electrical current to run through his body. Fajardo later found documents with Adrian’s name on them in the car Portugal drove to pick him up.
An information charged Huerta with kidnapping (Pen. Code, § 207, subd. (a)) (count 1), sexual penetration by a foreign object by force (§ 289, subd. (a)(1)) (count 2), sodomy by force (§ 286, subd. (c)(2)) (count 3), second degree robbery (§§ 211, 212.5, subd. (c)) (count 4), two counts of kidnapping to commit a sex offense (§ 209, subd. (b)(1)) (counts 5 & 6), kidnapping to commit robbery (§ 209, subd. (b)(1)) (count 7), two counts of assault with a deadly weapon—a knife and a stun gun (§ 245, subd. (a)(1)) (counts 8 & 9), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)) (count 10), and criminal threats (§ 422) (count 11). As to all the counts, the information alleged Huerta personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged Huerta personally used a deadly weapon, a knife, as to counts 1, 2, 3, 4, 5, 6, and 11 (§ 12022, subd. (b)(1)). Finally, the information alleged he personally used a deadly weapon, a stun gun, as to counts 1, 2, 3, 4, 5, 6, 7, 10, and 11 (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
The district attorney offered the testimony of Adrian. Adrian testified he did not remember seeing any weapons during the incident, and he did not remember telling the police he felt electrical currents going through his body. He did not remember telling the police Huerta held a knife to his throat. But, he also said it had been two years since the incident and his memory of that night was not very good. He did not know Portugal had a husband until he saw her with him that day.
The district attorney offered the testimony of Jane Hare, a forensic nurse, who conducted a sexual assault examination. She testified Adrian told her Huerta held a knife to his throat and threatened to cut his tongue out, and felt something placed to his side, but he did not know what it was. In addition to his multiple head and neck abrasions and bruises, she opined he had suffered multiple lacerations on his external anal area caused by blunt force trauma, and a tear and bleeding three inches inside the external opening of his anus. These injuries were consistent with penetration with a foreign object.
Huerta rested on the state of the evidence. During trial, the trial court granted the district attorney’s motions to dismiss all the allegations, except the allegation he personally used a deadly weapon, a knife, as to counts 2 and 3. The jury convicted Huerta of counts 1 though 4 and 8 through 11. As to counts 5 through 7, the jury convicted him of the lesser included offense of kidnapping. The jury found true he personally used a knife as to counts 2 and 3.
The trial court sentenced Huerta to a total state prison term of 21 years as follows: the upper term of eight years on count 1, two consecutive six-year terms on counts 2 and 3, and a one-year term for the personal use allegation as to count 2. The court sentenced him to concurrent middle terms on counts 4, 8, 9, 10, and 11. The court stayed sentencing on counts 5, 6, and 7 pursuant to section 654, and struck the sentence on the personal use allegation as to count 3.
DISCUSSION
I. Insufficient Evidence
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 (Valdez).)
A. Count 3
Huerta argues there was insufficient evidence he committed sodomy because the evidence demonstrated he inserted “something” into Adrian’s anus, but not that it was his “penis.” We disagree.
Section 286, subdivision (a), states: “Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” Section 286, subdivision (c)(2), provides: “Any person who commits an act of sodomy when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.”
Here, there was sufficient circumstantial evidence for the jury to conclude Huerta put his penis into Adrian’s anus. The evidence demonstrated that after Portugal stopped the car in Riverside County, the men grabbed Adrian and held him down, while Huerta lowered Adrian’s pants and inserted what felt like his finger into his anus and made a rotating motion. After Huerta turned Adrian towards Portugal, Huerta told him to look at her, and said he was going to feel what she felt, Huerta pulled down his own pants. Adrian felt a “more severe” pain as what he described as a larger object entered his anus. Hare testified Adrian had suffered multiple lacerations on his external anal area caused by blunt force trauma and a tear and bleeding three inches inside the external opening of his anus. These injuries were consistent with penetration with a foreign object. Based on the evidence Huerta turned Adrian away from him and pulled down his own pants, Adrian felt a larger object enter his anus, and a sexual assault examination revealed a tear and bleeding three inches inside Adrian’s anus, the jury could conclude Huerta put his penis into Adrian’s anus.
To the extent Huerta complains the district attorney’s question he “fe[lt] a larger object enter into [his anus,]” was leading and inadmissible, he cannot now complain because he did not object to that question at trial. And, Hare’s testimony the medical tools she used to examine Adrian might have caused the bleeding is unpersuasive and irrelevant. It does not detract from Adrian’s testimony Huerta pulled his own pants down before he felt a large object enter his anus, and if it did, we may not second-guess the jury. (Valdez, supra, 32 Cal.4th at p. 104.) There was sufficient evidence Huerta sodomized Adrian.
B. Counts 8 and 9
Huerta contends insufficient evidence supports his convictions for assault with a deadly weapon, count 8, a knife, and count 9, the stun gun. We will address each in turn.
Section 245, subdivision (a)(1), provides: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” Assault is defined as “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.)
1. Count 8
Relying on the fact Adrian testified he did not remember seeing a knife because his eyes were closed, or telling Fajardo about a knife, and the fact officers did not recover a knife, Huerta complains insufficient evidence supports his conviction on count 8 because the evidence he had “a knife was weak and insubstantial.” He also complains there was no evidence of “an ineffectual act or attempt to cause a battery[.]” Neither of his contentions have merit.
With respect to his first claim, there was sufficient circumstantial evidence for the jury to conclude Huerta possessed a knife. Fajardo testified that when he interviewed Adrian the day after the incident, Adrian told him that as Huerta sexually assaulted him, Huerta held a knife, and when Adrian began to cry, Huerta said he was going to cut out his tongue if Adrian did not stop. Hare testified Adrian told her Huerta held a knife to his throat and threatened to cut his tongue out. Adrian testified his memory of the incident was worse at trial, approximately 20 months after the incident, than it was immediately after the incident. Fajardo’s and Hare’s testimony that Adrian stated Huerta had a knife was sufficient circumstantial evidence for the jury to conclude he possessed a deadly weapon during the assault. Huerta’s reliance on the other evidence is merely an attempt to have us reweigh the evidence, which as we explain above, we cannot do. (Valdez, supra, 32 Cal.4th at p. 104.)
As to his second claim, there was sufficient circumstantial evidence Huerta committed a present conditional threat. “Ordinarily, ‘[a]n assault occurs whenever “‘[t]he next movement would, at least to all appearance, complete the battery.’” [Citation.]’ [Citations.] But there can also be an assault when the battery is only threatened. [Citation.] ‘“Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he actually struck, or shot, at the other party, and missed him.”’ [Citations.] A conditional future threat will not suffice. [Citation.]” (People v. Page (2004) 123 Cal.App.4th 1466, 1473.)
If Huerta used the knife exclusively to make a conditional future threat, there was no assault. There was evidence that while Huerta sexually assaulted Adrian he held the knife. Based on this evidence, the jury could reasonably find Huerta held the knife as a present conditional threat so he could accomplish the sexual penetration by a foreign object by force, and sodomy by force.
To the extent Huerta claims the trial court should have instructed the jury sua sponte with CALJIC No. 9.00.1, “Assault—Conditional Threat,” he is incorrect. There is no sua sponte duty to instruct with this instruction, and defense counsel did not request it. Additionally, Huerta does not explain how he was prejudiced by the lack of the instruction.
2. Count 9
Huerta argues insufficient evidence supports his conviction on count 9 because there was no evidence he used a stun gun and there was no evidence a stun gun was capable of and likely to produce great bodily injury. Not so.
Although Adrian testified he did not see any weapons because he had his eyes closed, and officers did not recover a stun gun, there was circumstantial evidence from which the jury could infer Huerta assaulted Adrian with a stun gun. Adrian testified that on his ribs and legs he felt “pricking . . . but they didn’t let [him] see what it was[,]” “pricking, [which] felt like a needle[,]” and “a little stabbing[.]” At trial, the district attorney moved to admit into evidence photographs of Adrian that showed injuries to his leg in the area where he felt the “pricking.” Fajardo testified Adrian stated he saw something with “two points with a light” placed against his thigh, causing an electrical current to run through his body. On rebuttal, he also testified a stun gun was a portable, battery operated device with “metal tips on either side” that is used to administer an electrical current. Based on this testimony, and the photographic evidence, the jury could conclude Huerta used a portable device with two points to shock Adrian on his ribs and back, or in other words, a stun gun. Additionally, based on the same evidence, the jury could also conclude the stun gun was a deadly weapon capable of and likely to produce great bodily injury as properly defined in CALJIC No. 9.02.
II. Multiple Convictions
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” (§ 954 . . . .)’ [Citation.] Section 954 generally permits multiple conviction. ¶ A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ Citation. ‘If a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ Citation.” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) In deciding whether an offense is necessarily included in another offense, the court should consider only the statutory elements test. (Id. at p. 1229.)
A. Counts 8, 9, and 10
Relying primarily on People v. Oppenheimer (1909) 156 Cal. 733 (Oppenheimer), Huerta contends the jury erroneously convicted him of count 8, assault with a deadly weapon—a knife, count 9, assault with a deadly weapon—a stun gun, and count 10, assault with force likely to cause great bodily injury because the incident “was just one continuing assault” based on a “single intent and plan[.]” As we explain below more fully, we conclude the evidence demonstrated Huerta committed three separate assaults.
In Oppenheimer, supra, 156 Cal. at pages 736-737, defendant was a prisoner who escaped solitary confinement and attacked another prisoner with a weight, and immediately thereafter, with a knife. After he was convicted of a single count of assault, defendant argued the prosecutor had erred because he never elected the weapon upon which he was relying to prove the crime. (Id. at pp. 739-740.) The Supreme Court explained: “We think it is manifest that there was but a single assault shown by this evidence, even though two weapons were used. The mere fact that two weapons are used does not necessarily show two assaults. If one unlawfully assails another with his two hands, first striking at him with one hand and immediately thereafter with the other, no one would say that there were two offenses. The offense would be the one unlawful attempt, coupled with a present ability, to commit a violent injury upon the other’s person, and each effort made in what constituted only the same attempt to accomplish this result would constitute only a single element of that attempt. The same thing may be true where the assailant uses two or more weapons instead of only his two hands. . . . The evidence offered and received in this case tended to show one continuous transaction, one assault in which two weapons were used. It was not, therefore, a case where the evidence offered showed two or more distinct offenses for each of which the defendant might be prosecuted and suffer a conviction . . . .” (Id. at p. 740, italics added.)
Here, unlike Oppenheimer where the attacks were closely related in time, we conclude the evidence demonstrated there were three distinct offenses separated by a significant, albeit unspecified, amount of time for which Huerta could be convicted. We will discuss the offenses chronologically.
With respect to count 10, assault with force likely to cause great bodily injury, after Huerta and the other man got into the car, they pulled Adrian into the back seat, put him on the floor, put their feet on him to hold him down, and when he tried to get up, they hit him on the back, mouth, and nose. “[T]he use of hands or fists alone may support a conviction of assault ‘by means of force likely to produce great bodily injury’ is well established [citations] . . . .” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
As to count 9, as they drove to Riverside County, Huerta asked Adrian why he had dated Portugal and if he knew she was married. When Adrian tried to answer him, he felt a “‘prickling’” on his back and leg. As we explain above more fully, there was sufficient circumstantial evidence for the jury to conclude Huerta committed an assault with a deadly weapon, a stun gun.
Finally, with respect to count 8, after they arrived in Riverside County, the other man held Adrian while Huerta pulled his pants down and inserted what felt like his finger into Adrian’s anus and made a circling motion. As we also explain above more completely, there was sufficient circumstantial evidence Huerta inserted his penis into Adrian’s anus. There was sufficient evidence for the jury to conclude that while Huerta sexually assaulted Adrian, he held a knife. Therefore, based on the evidence presented at trial, it was reasonable for the jury to conclude Huerta committed count 10 upon entering the car, count 9 as they drove to their destination, and count 8 after arriving at their destination. In re Mosely (1970) 1 Cal.3d 913, 919, footnote 5, where the court stated assault by means of force likely to produce great bodily injury in violation of section 245 is not a lesser offense of assault with a deadly weapon in violation of the same section, and People v. Djekich (1991) 229 Cal.App.3d 1213, 1221, which involved a zoning ordinance that provided for separate punishment for each offense, do not persuade us otherwise.
B. Count 1 same as Counts 5, 6, and 7
Huerta complains the jury erroneously convicted him of the lesser included offense of kidnapping on counts 5, 6, and 7 because it also convicted him of kidnapping on count 1. He asserts his convictions on counts 1, 5, 6, and 7 were based on a single incident and a single victim, and he could not have committed the lesser included offense of kidnapping in counts 5, 6, and 7, without also committing kidnapping in count 1 because the elements are the same. The Attorney General concedes the error. We reverse the judgment on counts 5, 6, and 7.
III. Jury Question Concerning Count 3
Huerta claims the trial court abused its discretion when it erroneously answered the jury’s question concerning whether a “threat” to commit sodomy meets the statutory definition of sodomy. The Attorney General counters that Huerta forfeited his claims, and alternatively, the court’s answer was proper. By way of petition for writ of habeas corpus, Huerta asserts he received ineffective assistance of counsel. As we explain below, Huerta forfeited this claim, and we conclude defense counsel’s performance was objectively reasonable.
A. Forfeiture
The Attorney General argues Huerta should be precluded from raising this claim because he invited the error, and he failed to object to the trial court’s response. Huerta counters that he did initially object, it is the jury’s right to have the question answered, and his substantial rights were affected. We conclude Huerta forfeited appellate review of this claim because he agreed to the trial court’s response. A defendant may forfeit an objection to the trial court’s response to a jury inquiry through defense counsel’s consent, or invitation or tacit approval of, that response, even where the court responds to an inquiry with a correct and germane statement of the law, and counsel proposes no further clarification. (People v. Ross (2007) 155 Cal.App.4th 1033, 1049 [disapproving of contrary holding People v. Litteral (1978) 79 Cal.App.3d 790, 796, as dicta].) However, that does not end our inquiry. Because Huerta raises a claim of ineffective assistance of counsel by way of petition for writ of habeas corpus, we will now address the substance of his claim.
B. Ineffective Assistance of Counsel
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212 (Scott).)
1. Defense Counsel’s Representation
The trial court instructed the jury with CALJIC No. 10.20, “Unlawful Sodomy By Force Or Threats,” in relevant part, as follows: “‘Sodomy’ is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. Proof of ejaculation is not required. ‘Against the will’ means without the consent of the alleged victim.” After jury deliberations began, the jury sent the trial court a note asking, “Regarding count 3 — If we find (no contact) the Is the threat of sodomy sufficient to find him guilty of count 3?” After the parties agreed the answer to that question was, “‘no,’” the court indicated it would answer the jury by stating, “‘No. Please refer to CALJIC No. 10.20, definition of “sodomy.”’” The district attorney objected to answering “no” because the jury could answer its own question by referring to the definition. The court stated it would delete the answer, “no.” When the court asked defense counsel whether that was agreeable, he responded, “Certainly, your honor.” The trial court answered the jury: “Please refer to CALJIC [No.] 10.20, specifically the definition of ‘sodomy.’”
In his petition for writ of habeas corpus, Huerta included a declaration from defense counsel. Defense counsel stated, “I had no tactical reason for not objecting. It would have been beneficial to the defendant and proper to have the jury be told ‘no’ in response to their question.” As we explain below, we conclude defense counsel’s representation did not fall below an objective standard of reasonableness.
“After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.) “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] The trial court was understandably reluctant to strike out on its own. But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here, the plain language of CALJIC No. 10.20 states that if there is no “contact” between a penis and an anus, there is no sodomy. Accordingly, the threat of sodomy is insufficient to sustain a conviction for sodomy, and a plain reading of that language inescapably leads to that conclusion. No further response to the jury’s questions was necessary or justified. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [trial court fulfilled its duty under section 1138 by rereading instruction].) Therefore, defense counsel’s failure to object to the trial court’s proposed response was not objectively unreasonable as the definition was full and complete, and the jury could properly rely on the definition of sodomy to reach its conclusion. Had the jury believed Huerta only threatened Adrian with sodomy, and did not believe Adrian’s version of the events, CALJIC No. 10.20’s definition of sodomy did not prevent it from making such a finding. We have already rejected Huerta’s sufficiency of the evidence claims, and need not address them again.
Finally, Huerta’s reliance on U.S. v. Southwell (9th Cir. 2005) 432 F.3d 1050, is misplaced. In Southwell, the trial court erroneously instructed the jury on the unanimity requirement, which concerned the burden of proof, and was constitutional error. (Id. at p. 1053.) Here, as we explain above, CALJIC No. 10.20’s definition was clear and correct.
2. Prejudice
Additionally, there is not a reasonable probability Huerta would have received a more favorable result had the trial court included the word “no” in its response to the jury. The trial court’s decision to not answer the jury’s question with a “no” did not render the result of the trial unreliable or fundamentally unfair. The evidence demonstrated that Huerta penetrated Adrian’s anus twice, the first time with what he believed was Huerta’s finger, and the second time with something larger. The only issue is whether the second object was Huerta’s penis. As we explain above more fully, there was sufficient circumstantial evidence for the jury to conclude Huerta inserted his penis into Adrian’s anus. Huerta pulled down his own pants and inserted something “larger” into Adrian’s anus. The word “no” concerning whether a threat of sodomy was sufficient to convict of sodomy would not had aided the jury in determining whether it was his penis Huerta inserted into Adrian’s anus. Therefore, Huerta did not receive ineffective assistance of counsel.
IV. Blakely
Relying on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and its progeny, Huerta argues the trial court erroneously sentenced him to the upper term of eight years on count 1, and consecutive six-year terms on counts 2 and 3. Neither of his contentions have merit.
A. Upper Term-Count 1
In Cunningham v. California (2007) 549 U.S. ___, [127 S.Ct. 856, 860], the United States Supreme Court held California’s determinate sentencing scheme violates the Sixth Amendment, applying the rule it articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and its progeny that “the [f]ederal Constitution’s jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]”
In People v. Black (2007) 41 Cal.4th 799, 805 (Black II), the California Supreme Court responded to how Cunningham applies when an upper term is based on multiple factors and only some of them violate Cunningham. It explained that under our determinate sentencing system, the existence of a single aggravating circumstance is sufficient to make a defendant eligible for the upper term. “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Furthermore, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Ibid.)
Here, the trial court imposed the upper term of eight years on count 1 based on the following: “[Adrian] was particularly vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)); the court could have imposed “consecutive sentences” on counts 1 and 11 (rule 4.421(a)(7)); Huerta carried out the offenses with “planning, sophistication, and professionalism” (rule 4.421(a)(8)); and “[Huerta] has engaged in violent conduct that indicates a serious danger to society” (rule 4.421(b)(1)).
There was no Cunningham error because the trial court could properly rely upon the factor that it could have imposed a consecutive sentence on count 11 and chose not to. Indeed, Huerta recognizes as much when he states this factor, “was on first glance, arguably not in violation of Cunningham . . . .” Relying on the trial court’s statement Huerta made numerous threats, and therefore, it was for the jury to decide whether he made multiple threats misses the mark. The jury convicted Huerta of count 11, and the court could have imposed a consecutive sentence on count 11, which it chose not to do. Thus, the court could properly rely on its decision to not impose a consecutive sentence on count 11 to impose the upper term on count 1. Equally unpersuasive is his claim the court improperly relied on the same threat the jury did to convict him, to impose the upper term. The court did not—it exercised its discretion and decided not to sentence him for the threat and instead imposed the upper term on count 1. Finally, because there was one valid aggravating circumstance, the court could properly rely on the other aggravating circumstances to impose the upper term of eight years on count 1.
B. Consecutive sentences-Counts 2 and 3
Recognizing we are bound by Black, supra, 41 Cal.4th 799, by virtue of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, Huerta goes to great pains to explain how Black II gives judges unbounded discretion to judicially twist facts into reasons to impose consecutive rather than the presumed concurrent sentence. In Black, supra, 41 Cal.4th at page 821, the court ruled: “Cunningham, however, does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights.” We are bound to follow Black II.
V. Section 654
Acknowledging the trial court stayed sentencing on counts 5, 6, and 7 pursuant to section 654, Huerta claims the court should have stayed sentencing on all the counts except count 1 because they all arose from Huerta’s single intent and objective of retaliating against Adrian for his adulterous conduct. Nonsense.
Section 654, subdivision (a), provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 prohibits multiple sentences where a single act violates more than one statute, and where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20 (Neal).) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal. [Citations.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
“Although section 654 literally applies only where multiple statutory violations arise out of a single ‘act or omission,’ it has also long been applied to cases where a ‘course of conduct’ violates several statutes. [Citations.] A ‘course of conduct’ may be considered a single act within the meaning of section 654 and therefore be punishable only once, or it may constitute a ‘divisible transaction’ which may be punished under more than one statute. [Citations.] Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial court’s findings will not be disturbed on appeal if they are supported by substantial evidence. [Citations.]” (People v. Kwok (1998),63 Cal.App.4th 1236, 1252-1253.)
Here, we conclude substantial evidence supports the trial court’s conclusion Huerta’s “course of conduct” was divisible in time, and therefore, consisted of separate offenses that may be separately punished. As to counts 2 and 3, after Portugal, Huerta, and the other man kidnapped Adrian, they drove him approximately one hour away to a desolate area of Riverside County. The evidence at trial demonstrated Huerta sexually penetrated Adrian with a foreign object. After moving Adrian to face Portugal, he told Adrian to look at her because he was going to feel what she had felt. Huerta pulled down his pants and inserted his penis into Adrian’s anus. Huerta’s actions and statements demonstrate he had time to reflect between counts 2 and 3, and they were separate offenses separated in time. With respect to count 4, the evidence demonstrated that after the men threw Adrian from the car, they threw his pants and shirt at him. They kept his wallet, including $300, a jacket, necklace, and earrings. Huerta’s intent and object in kidnapping Adrian was separate and distinct from his intent and objective in robbing him. (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) As to count 11, the evidence demonstrated that after Portugal, Huerta, and the other man kidnapped Adrian, Huerta threatened to kill him. (People v. Solis (2001) 90 Cal.App.4th 1002, 1022.) Again, Huerta had time to reflect between kidnapping Adrian, and threatening to kill him. Finally, as we explain above more fully, counts 8, 9, and 10 were three distinct offenses separated by time which allowed Huerta to reflect on each offense. Therefore, substantial evidence supports the trial court’s sentence of Huerta of 21 years as detailed above.
DISPOSITION
We reverse Huerta’s convictions on counts 5, 6, and 7. We affirm the judgment in all other respects. We deny the petition.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.