Opinion
A158743
12-30-2021
THE PEOPLE, Plaintiff and Respondent, v. JAIRON JUAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 18 SF 008962A
STREETER, J.
A jury convicted Jairon Juarez of rape (Pen. Code, § 261, subd. (a)(2); count 1), sodomy (id., § 286, subd. (c)(2)(A); count 2), criminal threat (id., § 422, subd. (a); count 3), assault by force likely to produce great bodily injury (id., § 245, subd. (a)(4); count 4), injury to a spouse or cohabitant (id., § 273.5, subd. (a); counts 5 and 7), and second degree robbery (id., § 212.5, subd. (c); count 6). It also found true enhancement allegations for Juarez's use of a knife in the commission of the sex offenses charged in counts 1 and 2 (id., §§ 667.61, subds. (b), (e) [one-strike law], 12022.3, subd. (a)) and in his commission of the crimes charged in counts 3 and 5 (id., § 12022, subd. (b)(1)).
The court ultimately sentenced Juarez to a determinate term of 10 years and eight months and imposed a consecutive indeterminate term of 15 years to life imprisonment for Juarez's rape conviction with a concurrent indeterminate term of 15 years to life imprisonment for his sodomy conviction.
Juarez appeals, contending: (1) the trial court erred in excluding evidence of third-party DNA from A. Doe's sexual assault kit; (2) the trial court erred in sustaining an objection to what he claims were prior inconsistent statements from Doe; (3) the trial court erred in permitting expert testimony on the effect of intimate partner battering; (4) there was insufficient evidence to convict him of robbery; (5) Penal Code section 654 mandated that the trial court stay his sentences for counts 3 and 4; (6) the trial court erred in imposing full enhancement terms for his use of a knife as to two of his convictions; and (7) the case must be remanded for resentencing in light of recently enacted Senate Bill No. 567. We agree that the trial court was required to reduce the one-year terms for the weapon enhancements to four months, and we will modify the judgment as such. In all other aspects, the judgment is affirmed.
I. BACKGROUND
A. The Prosecution's Case
Doe met Juarez on Facebook in 2013 or 2014. After speaking virtually for around six months, the two went from "being friends to being boyfriend and girlfriend." They lived together for a total of several years in a few different cities, including San Francisco, eventually having a son. To make ends meet, Doe cleaned offices in San Jose and Portola Valley. This was due, in part, to Juarez being on disability, leaving Doe as the couple's sole financial provider.
Their relationship took a turn for the worse in June or July of 2018, when Juarez began accusing Doe of infidelity. Doe had returned home from church to find Juarez lying on their bed looking at his phone. In a calm tone of voice, Juarez told Doe she was not actually at church and then showed her a pornographic video on his phone he believed her to be in. Doe did not respond. In a sudden manner Juarez stood up and punched Doe in the face with a closed fist, causing her nose to bleed.
Doe testified that she did not call the police because she did not want Juarez "to get into trouble." Doe took photos of her injury and showed them to her friend, Reyna Gonzalez, before later deleting them. Her justification for doing so was that she had forgiven Juarez for his actions. Their relationship, however, did not improve. Juarez continued to accuse Doe of infidelity, whereupon Juarez "would get angry." Nonetheless, the two remained living together and continued to engage in sexual relations.
On July 25, 2018, Doe was cleaning the offices at PayPal when she received a text from Juarez offering to help her clean. Doe traveled to San Francisco to pick up Juarez and the two traveled to Portola Valley in Doe's car. Doe had insisted Juarez refrain from his usual accusations and "same old nonsense," but on the drive Juarez proceeded to show Doe another pornographic video which he said Doe was in. Doe testified she was not in the video.
The couple arrived at the offices in Portola Valley around "twilight." Doe pulled her vacuum out of the car and the two went inside the building. Doe had the car keys in her back pocket and her keys to the building on a lanyard around her neck. She had left her wallet, PayPal I.D. card, and cell phone inside the car. There was no one in the building except Juarez and Doe. At some point after arriving, Juarez asked Doe to have sex with him in one of the building bathrooms. Doe later testified that she agreed because if she did not, Juarez would again accuse her of cheating.
Doe was the first to enter the bathroom, with her lanyard still around her neck. Juarez followed, closing the bathroom door and locking it behind him. Juarez proceeded to launch into more accusations, demanding that Doe reveal her partner in infidelity and asking that she give him her phone. According to Doe's testimony, Juarez then pulled a 10-inch folding knife (consisting of a five-inch blade and a five-inch handle) from his pants and "passed" it by Doe's neck under her chin from left to right. Doe felt "scared" and started to cry. She pleaded that the two go to the lobby to talk, that way she could also retrieve her phone for Juarez to examine. Juarez refused.
Juarez then pushed the knife against Doe's shoulders, chest and stomach as she stood in front of the toilet and sink. Juarez suddenly grabbed Doe "by [her] hair" and threw her against the sink. The back of Doe's neck slammed against the corner of the sink and she fell to the ground. Doe's "back side [was] along the floor, with the back of [her] head and neck against the wall." Juarez "got on top of [Doe]" and "sat on top of [her] waist area." Pinning her to the floor, Juarez grabbed the lanyard around Doe's neck and twisted it, causing Doe to feel as if she was "going to choke." Juarez also managed to cut Doe's pinkie finger and forearm with the knife, causing blood to run on the floor. Doe continued to cry and struggled to remove the lanyard from her neck so that she would not choke. Doe eventually removed the lanyard from her neck, and the building keys fell under the sink. Juarez told her "that he was going to kill [her]."
After 20 minutes of physical struggling, Juarez got off of Doe and told her he wanted to have sex. Doe got up and protected her stomach with her arms crossed, which prompted Juarez to ask why she was doing that. Doe told him that she did not know if she was pregnant or not. Juarez said the child was not his and kneed Doe between her legs, striking her groin and thigh area. Juarez then ordered Doe to remove her clothes, but she only pulled down her pants. Doe testified that she did so only because she was afraid Juarez would stab her, and that "all I wanted to do was get out of there." Juarez proceeded to have vaginal and anal sex with Doe while she cried. At some point during the sex, Doe asked Juarez to put his knife away, which he did. During the intercourse, Doe positioned her body "closer to the door" so she could "get out of there."
Juarez removed his penis from Doe's anus and "tried to finish[] himself off" when Doe made a move for the door, not stopping to grab the lanyard from the floor. Doe managed to quickly unlock the bathroom and ran out of the building while pulling up her pants. Doe began crying for help as Juarez chased her. She ran to a nearby fire station and banged on the door, though to her it seemed that the station was empty. Because Juarez was still pursuing her, Doe scrambled toward a nearby gas station, but again did not see anyone there. At this point Juarez caught up with her and placed his hand on her shoulder. He told her "[W]e should go and work or . . . go pick up our son and go home." Doe was still "really scared" and so only shook her head to answer, no. Juarez then reached into Doe's pocket and took her car keys. Doe did not try to stop him because she was still afraid.
Juarez walked across the street and stood there as Doe moved close to a house adjacent to the fire station. After an undetermined amount of time, a fire truck returned to the station, at which point Doe ran inside to ask for help. Doe showed a firefighter the cut on her arm and told him that Juarez had tried to kill her, but she did not mention any sex acts. The firefighters closed the garage door and summoned the police.
While waiting for the arrival of law enforcement, Doe spoke to firefighter Javier Valdes; a native Spanish speaker himself, Valdes was able to question Doe on what happened. Doe "was crying" and "had blood on her left hand" from her fingertips to her elbow. Doe stated that "her boyfriend had assaulted her with a knife." Doe told Valdes that "her boyfriend grabbed her by the hair, took a knife to her throat and locked her in the bathroom." Doe did not tell Valdes anything else about what had transpired in the bathroom, but she did say "that the other part of it was that [her boyfriend] wanted to have sex with her." Doe did not say she was raped or sodomized. Doe said that her boyfriend had caused the cuts on her arm but did not explain exactly how she suffered them. Doe explained that "once the door was opened, she was able to escape" the bathroom.
At some point after law enforcement arrived at the fire station, Doe spoke with San Mateo County Sheriff's Deputy Richard Chaput. After Deputy Chaput spoke with Doe, he proceeded to the office building. Deputy Chaput entered the bathroom in which the crimes took place. He did not find keys or a vacuum cleaner and did not see blood anywhere. "At the base of the toilet, [he] saw what appeared to be . . . a small clump of black hair." According to the deputy, "[t]he toilet and the sink appeared to be recently cleaned. They were very clean." "[T]he trash can had a new bag inside of it," there was no trash, and the floor also appeared to have been recently cleaned.
While Deputy Chaput investigated the scene, Doe spoke with San Mateo County Sheriff's Deputy Daniel Contreras for the first time.Contreras testified that Doe "appeared visibly upset" and looked like "she had been crying." As Contreras took a statement from Doe, "she would often break down and cry and then have to take a moment to collect herself before starting again." Doe disclosed to Contreras that sexual acts had occurred in the bathroom of the office building. After taking Doe's statement, Contreras transported her to the Keller Center at San Mateo Medical Center for an exam. Later that evening, law enforcement arrested Juarez while he was driving Doe's vehicle.
Doe would interview with Deputy Contreras again on August 10, 2018.
Dr. Tricia Tayama, the medical director at the Keller Center, "review[ed] records and photographs associated with [the] forensic medical examination[s]" of Doe. Dr. Tayama testified there were injuries on parts of Doe's body. She had a laceration on her left pinkie and a laceration on her left forearm. Both were consistent with injuries caused by a knife. The back of Doe's neck had a general redness, a bruise, and "multiple linear and curvilinear red lines, red lesions." The bruise was consistent with that area coming into contact with the corner of a sink or "being pushed up against a wall." Doe's neck also had horizontal and vertical "lines consistent with ligature strangulation," such as with a lanyard. Dr. Tayama explained that "someone who is being strangled will frequently put their hands up to their neck and cause self-inflicted, vertical injury, usually a scratch, from trying to remove whatever object is around the neck."
Part of Doe's medical exam also included providing a sexual assault kit, which was later examined by Criminalist Tan Ho. Ho later testified that the kit he received contained vaginal, cervical, anal, and rectal swabs as well as reference DNA samples from Juarez and Doe. The kit also contained Doe's underwear and bra. According to Ho, "[s]perm cells were observed in the vaginal swabs, the cervical swabs[, ] and a cutting of the underwear." The sperm cells on the vaginal swab and the underwear matched Juarez's DNA.
B. The Defense Case
Juarez testified in his own defense through a certified Spanish interpreter. As to the incident following Doe's return from church, he denied punching Doe in the face. Juarez insisted he did not "see when she got hurt," and said he did not "know how [Doe] got her nose hurt." While Juarez continued to live with Doe, he also spent many nights living in his car. He testified he did so because he didn't want to go upstairs and then start arguing with Doe over the accusation that he'd hit her.
As to the incident at the PayPal office, Juarez testified he was at home and contacted Doe about working with her. When asked why he did, Juarez said, "Because I always helped her, and I was bored at home; so I asked her if I could go help." Before Juarez contacted [Doe] about taking him to work, Doe texted him, urging him "[t]o stop arguing about the video." Doe picked him up from San Francisco around 7:00 p.m. Although Juarez stated he did not argue with Doe during the trip, he again watched the same pornographic video he had been watching "for months." Watching the video helped him to forgive Doe again. Juarez had a knife with him because he "was used to always carrying one." On cross-examination, he said that he "carried the knife around so that sometimes [he] could sharpen pencils with it." Juarez also testified that he was the one with the lanyard on, not Doe.
Upon entering the building, Juarez asked Doe to have sex with him. According to Juarez, the sex was consensual. He did not remember if his penis ever entered Doe's vagina in the bathroom, but "as far as [he] remember[ed], that time, it didn't." When pressed on this point in cross-examination, Juarez stated, "I don't know if-since I was doing it from behind, I don't know if it slipped, but-not that I remember."
After Juarez placed his penis in Doe's anus, he inserted two fingers into her vagina, where he "found" a "fluid that [he] didn't like, and [they] started to argue." Juarez thought this fluid was semen belonging to another man, at which point he pulled his penis out of Doe and "finished [him]self off with [his] hand." According to Juarez, only at this point did he pull out the knife for the first time to scare Doe. Juarez stated, "I told her, you know what? You're not worth it." Juarez was then going to put the knife away before Doe attempted to take it from him, at which point she cut her forearm and pinkie. Juarez denied ever kneeing Doe in the groin or thigh, throwing her against the sink, or grabbing the lanyard around Doe's neck.
According to Juarez, the remainder of events played out the same way as Doe had represented them. When the fire truck arrived, Juarez explained, "So then I saw the fire truck go in, and she went running towards there. Then, I saw a police car come by. [¶] So the vacuum was inside, and then I thought to myself, well, maybe she was going to come back. Maybe she just went to get her cut . . . her finger seen, looked at. [¶] So then I started to vacuum. I vacuumed the hallway and the bathroom. So then I thought, okay, I am going to leave. So then I grabbed the vacuum, put it away and rolled it up and put it inside the car." Juarez then drove off in the vehicle. Juarez later testified he vacuumed, took out the trash, and cleaned the office after Doe had already gone to the fire station.
C. Relevant Trial Court Rulings
Prior to Criminalist Ho's testimony, the prosecution filed an in limine motion seeking exclusion of unidentified contributor DNA from the evidence. Ho had identified a third DNA profile in Doe's sexual assault kit, but was unable to identify to whom the DNA on the cervical swab belonged because the data was "not of sufficient quality to make any conclusions." The samples from Doe's anus also contained "other [DNA]" that was of insufficient quality to allow Ho to draw any medical conclusions. At a hearing on the motion, the prosecutor argued the unidentified contributor DNA was irrelevant because Ho was "unable to draw any conclusions about the contributor, including the person's gender." The prosecutor continued, "with respect to the unidentified third person contributor on [Doe's] vaginal swab, the DNA was developed from a non-sperm cell" and thus, "the DNA result does not objectively indicate that [Doe] was cheating on" Juarez. The prosecution also noted that in any event, infidelity was not a defense to the charges against Juarez. As a final argument, the prosecution supposed that even if relevant, the trial court would need to exclude the unidentified contributor DNA evidence under Evidence Code section 352 because it was speculative.
Undesignated statutory references are to the Evidence Code.
Defense counsel filed a response to the prosecution's motion. Counsel argued the evidence was indeed relevant "because this DNA was extracted from the vagina of [Doe]," thus making "it . . . clear that some other person had been in that vagina recently enough to leave DNA." Counsel continued by stating "[t]he presence of a third person's DNA on the vaginal and cervical swabs [supports Juarez's] contention that he became angry with [Doe] when he felt that she had been with someone else."
After the presentation of argument, the trial court excluded the unidentified contributor evidence. It explained, "It's just-there's no-to say that it backs up a corroboration after [Juarez] suspects that her secretions felt different, I don't see that nexus." Defense counsel asserted that such a ruling violated his client's Sixth Amendment confrontation right. The court responded, "It's just what I've heard doesn't make it relevant, and it's more speculative than anything else. [¶] So I am going to keep it out."
The prosecution later called Deputy Contreras to testify about his interviews with Doe concerning her allegations. On cross-examination, defense counsel asked, "During that interview with [Doe] [on July 25, 2018, the night she reported the incident], did she tell you that she had never argued with Mr. Juarez before?" The prosecution objected to this question and the parties proceeded to a sidebar conference.
Defense counsel explained that although Doe had told Deputy Contreras in their first interview that she and Juarez had not argued before, Doe's own testimony regarding the church incident involved an argument. Counsel continued, "I think the fact that she said they didn't argue before, I think is evidence that has probative value to the jury, and I believe it's relevant as a prior inconsistent statement to the one made on August 12th."The prosecutor countered by saying "[m]y objection was based on the fact that I do not believe that it would be a prior inconsistent statement." On this point the prosecution argued that according to Doe, she was unaware that Juarez was even angry or upset before he punched her in the face. Therefore, her initial statement to Deputy Contreras about a lack of arguing would not necessarily be inconsistent with failing to disclose the nose punch.
Contreras testified he interviewed Doe for the first time since the Keller interview on August 10, not August 12 as counsel represented.
The trial court ultimately sustained the objection because it "recall[ed] her testimony being the same."
The prosecution also filed a motion in limine seeking admission of expert testimony on the effects of intimate partner battering under section 1107. The prosecution explained that expert testimony was admissible "to bolster the credibility of the victim's testimony by helping the jury understand why [Doe] failed to report the prior acts of violence to law enforcement and instead remained in a relationship with [Juarez] following physical abuse." Defense counsel filed an opposition to the motion and the parties proceeded to a hearing on the motion.
The trial court began the hearing by excluding two uncharged prior instances of violence between Juarez and Doe from evidence. Defense counsel then argued, "If we're going to keep out any prior instances of domestic violence other than . . . what is charged . . ., I don't believe that that is relevant to the issues at hand." The prosecution countered by arguing that a jury would wonder whether or not the failure to report rape or sodomy at the initial point of seeking help meant Doe was not being credible during the later interview. The prosecution also laid out other arguments regarding why the testimony would be relevant to help the jury understand why a battered individual would stay with an abuser. Defense counsel responded that the expert testimony would take up valuable time and that overall it would be irrelevant to the general issue of the case.
The trial court ultimately granted the prosecution's motion, and after a section 402 hearing on the proposed domestic violence expert testimony, found it to be admissible.
D. Verdict and Sentencing
The jury found Juarez guilty as charged on all counts and found true the enhancement allegations. At sentencing, the court imposed an upper term of five years for appellant's conviction of second degree robbery with consecutive subordinate one-third middle terms of eight months for his conviction of threat, one year for his conviction of assault with force likely to produce great bodily injury, and one year for each of his two convictions of corporal injury on a spouse or cohabitant, plus enhancement terms of one year each for his use of a knife as to appellant's convictions of criminal threat and one of his two convictions for corporal injury to a spouse, for an aggregate determinate term of 10 years and eight months. Under the one-strike sentencing law, the court imposed a consecutive indeterminate term of 15 years to life imprisonment for appellant's conviction of rape with a concurrent indeterminate term of 15 years to life imprisonment for his conviction of sodomy.
II. DISCUSSION
A. Exclusion of DNA Evidence of Unidentified Contributor
Prior to trial, the prosecution filed a motion in limine seeking exclusion of unidentified contributor DNA from evidence. The trial court granted this motion.
Juarez contends that the trial court's ruling granting the motion was an abuse of discretion because it, in effect, precluded the defense from cross-examining Criminalist Ho about the presence of third-party DNA on the vaginal swab from Doe. Juarez maintains that the presence of this DNA was relevant to corroborate his contention that he pulled the knife only after consensual sexual relations during which he believed he discovered evidence indicating Doe had been unfaithful. Juarez also argues the trial court's ruling was in violation of his Sixth Amendment right to confrontation and his Fourteenth Amendment right to due process.
We do not agree. In asserting the trial court abused its discretion, Juarez claims the trial court "erroneously failed to perceive the relevance of the subject matter" (i.e., the third-party DNA). "The principles governing the admission of evidence are well settled." (People v. Harris (2005) 37 Cal.4th 310, 337.) Section 350 states, "[n]o evidence is admissible except relevant evidence." And all relevant evidence is admissible unless excluded under the federal Constitution, California Constitution, or statute. (§ 351; Harris, supra, at p. 337.) As to what constitutes relevant evidence, section 210 states that" '[r]elevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The trial court has broad discretion in determining the relevance of evidence" (Harris, supra, at p. 337), and we review for abuse of discretion a trial court's rulings on relevance or any other ground for admissibility of evidence. (Ibid.)
Juarez argues that the unidentified contributor evidence was relevant because it would have corroborated his account. According to Juarez, he and Doe were engaging in consensual sex acts. Juarez then placed his fingers in Doe's vagina where he felt an unfamiliar fluid he perceived as another man's semen. Juarez claims this detail of his account was "key to [his] position that he became angry and drew a knife only after the sex acts were completed." It is therefore Juarez's position that exclusion of this evidence misled the jury in that they were made to believe no evidence corroborated his testimony. The reasoning here is flawed.
According to the testimony from Criminalist Ho, the third-party DNA was derived from a non-sperm cell. Ho stated, moreover, that he was "unable to draw any conclusions about the contributor, including that person's gender." These two details are fatal to Juarez's theory. Juarez stated in his own testimony that he "thought [the fluid in Doe's vagina] was . . . semen that belonged to somebody else." Absent foundational evidence that the DNA came from a sperm cell-a foundation Criminalist Ho specifically testified was missing-the admission of testimony about third-party DNA in Doe's vagina would have led the jury to speculate about how it came to be there. Was it from a vaginal exam? Did it come from the process of collecting the swab? Was it in fact sperm cell DNA but of such poor quality it could not be identified as such? Nothing from Ho's testimony answered such questions one way or the other, since each required a foundational predicate of its own.
In reviewing for abuse of discretion, we ask whether the trial court's ruling" '[fell] outside the bounds of reason.'" (People v. Osband (1996) 13 Cal.4th 622, 666; see id. at p. 678.) Here it did not. Because the unidentified contributor DNA was of such low quality that no conclusions could be made, a jury would not be able to draw any relevant inferences from it without speculating.
In a parallel line of argument, Juarez contends the trial court abused its discretion in prohibiting the defense from cross-examining the DNA analyst concerning the third-party DNA. On this point Juarez argues that the prohibited cross-examination would not have been confusing, misleading, or unduly time consuming. But Juarez fails to establish why the proffered evidence would not have been prejudicial to Doe under the meaning of section 352.
Section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Italics added.) Notably, section 352 speaks in terms of "undue prejudice." (See People v. Baker (2021) 10 Cal.5th 1044, 1089.) The prejudice the statute is designed to avoid is not the prejudice or damage to a party that naturally flows from relevant, highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) To evaluate "undue" prejudice, we must bear in mind that" 'the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.'" (People v. Zapien (1993) 4 Cal.4th 929, 958.) In essence, the prejudice referred to in section 352" 'applies to evidence which uniquely tends to evoke an emotional bias against the . . . individual and which has very little effect on the issues.'" (People v. Karis, supra, at p. 638.)
Here, Juarez argues that the prohibition on cross-examination misled the jury for reasons similar to those in his relevance argument. He additionally asserts there was no compelling reason to exclude the cross-examination. Not so. As we have already concluded, the third-party DNA evidence would not be able to support any inferences to help with the jury's determination. Inclusion of cross-examination on the third-party DNA would have provided little probative value other than to suggest Doe had indeed been unfaithful. Such an inference would have allowed the defense to potentially evoke an emotional bias against Doe by insinuating she was a cheater. And the court" 'is not required to admit evidence that merely makes the victim of a crime look bad.'" (People v. Stitely (2005) 35 Cal.4th 514, 548.)
Arguably, Juarez contends, the presence of third-party DNA in Doe's vagina would have corroborated his testimony that he "felt" foreign semen in Doe's vagina. Juarez seems convinced he was capable of distinguishing the nature of fluids in Doe's vagina by blind "feel." The fact he apparently believes this and so testified, however, does not supply enough of a foundation to make it anything more than speculative.
We thus conclude the trial court did not err in its decision to exclude cross-examination. As the court explained, "The case is that he felt like she was cheating; so that is when he pulled the knife. But he only pulled the knife to show her that, look, I could have pulled this on you because you were cheating, but I don't want to hurt you. And so it's not relevant to-her having sex with another person or a hundred people isn't relevant to an allegation of rape, nor is it a defense to a [Penal Code section] 245 [charge]." We think it may be a bit strong to suggest that the testimony Juarez sought to elicit had no relevance, since relevance has such a low bar. (§ 210 [" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."].) But even assuming the existence of third-party DNA in Doe's vagina had some slight relevance, the court was within its discretion to conclude that its marginal relevance was substantially outweighed by the potential prejudice and confusion it would have caused. (§ 352.) We uphold an exercise of discretion on any permissible ground, even if it is not exactly for the reasons a trial court articulates. (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
In one final strand of this line of argument, Juarez argues that "[n]ot only was the evidentiary error a violation of state law, but it violated [his] [Sixth Amendment] right to confrontation . . . and his [Fourteenth Amendment] right to due process . . . ." Juarez supposes that as a result of the trial court's ruling, he "could not fully confront and cross-examine an important prosecution witness who testified about a crucial aspect in the prosecution case, namely, the significance of DNA evidence that was collected and analyzed." This argument, too, is without merit.
Framing the argument as a Sixth Amendment violation does not advance Juarez's cause."' "[T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." '" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678, quoting Davis v. Alaska (1974) 415 U.S. 308, 315-316.) Here, Juarez had that opportunity. The court did not restrict Juarez's right to cross-examine Criminalist Ho on admissible topics. And the court was within its authority to impose limits on defense counsel's inquiry of a prosecution witness. (Delaware v. Van Arsdall, supra, at p. 679.) Notably, trial judges "retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, [and] confusion of the issues . . . ." (Ibid.)
What is more, the focus of the confrontation clause is on individual witnesses, not on the outcome of the entire trial. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.) If Juarez wanted to state a Sixth Amendment violation, he would have needed to show "he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness," thereby exposing to the jury facts which could lead them to draw appropriate inferences about the witness's credibility. (Delaware v. Van Arsdall, at p. 680.) But here Juarez did not seek to call into question the credibility of Criminalist Ho. Rather, he sought to refute Doe's version of events through Ho's testimony.
Accordingly, despite Juarez's proffered Sixth Amendment framework, it seems to us that he has merely dressed the same issue with a different coat of paint. What he actually opposes is the court's decision to exclude the third-party DNA, an argument we have already discussed and dismissed.
Juarez's due process claim fails as well. Our state's Supreme Court has stated that even section 352" 'must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.'" (People v. Babbitt (1988) 45 Cal.3d 660, 684.) The Babbitt court couches that statement with the qualification that proffered evidence must still meet the threshold requirement of relevance, a concept that at its outermost boundary may be limited by section 352, as was the case here. Because we have held that the trial court did not abuse its discretion in excluding third-party DNA testimony under section 352, we also conclude that the trial court did not violate Juarez's right to due process.
B. Exclusion of Doe's Prior "Inconsistent" Statement
Juarez next argues the trial court abused its discretion by sustaining an objection from the prosecution as to a line of questioning proffered by the defense. Here again, as backup lines of argument, Juarez contends that this trial court ruling precluded the defense from cross-examination, thereby violating his Sixth Amendment and Fourteenth Amendment rights. These claims are meritless.
At trial, Doe testified that she and Juarez did not "argue a lot," but that Juarez argued "a lot" with her, inasmuch as he "was constantly accusing [her] of cheating on him." Doe also testified as to an incident in which Juarez had punched her in the face after showing her a pornographic video. The prosecution later called on Deputy Contreras to testify as to his two interviews with Doe. Deputy Contreras had interviewed Doe on the night of the alleged assault and again two weeks later. Contreras testified that during the second interview, Doe mentioned for the first time the "nose punch incident." During cross-examination, the defense questioned Deputy Contreras about the first interview with Doe, asking, "During that interview with [Doe] did she tell you that she had never argued with Mr. Juarez before?" The prosecution objected and the parties proceeded to a sidebar conference.
The defense offered a justification as to the line of questioning on the theory that Doe had made prior inconsistent statements that held probative value. Counsel stated: "I believe that, then-because in the first interview, she said that they had not argued before. And even though you may not characterize-her testimony was that he was accusing her of cheating on him. Now, his tone may have been mild or tranquil, but that is-essentially, the words are an argument. They're argumentative in themselves. And I think that the fact that she said they didn't argue before, I think is evidence that has a probative value to the jury, and I believe it's relevant as a prior inconsistent statement to the one made on August 12th."
The prosecution responded by arguing that those two statements from Doe were not actually inconsistent. When Juarez allegedly punched Doe in the face, Doe was unaware he was angry with her. Doe's failure to disclose this incident during her initial interview with Deputy Contreras would thus not be inconsistent with her statement that the two hardly argued. The trial court agreed with the prosecution and sustained the objection because it "recall[ed] her testimony being the same."
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." (§ 1200, subd. (a).) Hearsay is inadmissible unless there is an applicable exception. (Id., subd. (b).) "[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception." (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
Here, the challenged hearsay was Doe's statement to police on the night of the alleged offenses. Defense counsel argued that the applicable exception would be that of a prior inconsistent statement." 'A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.'" (People v. Cowan (2010) 50 Cal.4th 401, 462, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1219.) Section 1235 reads: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Of particular note here is that the fundamental requirement of this statute is that the statement in fact be inconsistent with the witness's trial testimony. (People v. Cowan, supra, at p. 462.) Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness's prior statement. (Ibid.)
The trial judge's decision to exclude Doe's statement from her interview with Contreras as not falling within the prior inconsistent statement exception to the hearsay rule is reviewable only for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 745; People v. Jones (2013) 57 Cal.4th 899, 956.) Doe testified on cross-examination that she did not argue "a lot" with Juarez. It appears the trial court construed this statement as pertaining to the origination of verbal scuffles between her and Juarez. Doe was never the one to start an argument; Juarez was the one to argue with her in a one-sided and accusatory manner. Accordingly, the trial court felt there was no inconsistency, in effect, between Doe's statement to Contreras that she had never argued with Juarez before, and that there was no argument between her and Juarez before he punched her in the nose.
Juarez characterizes this ruling as "splitting hairs," and states that "[m]ost reasonable jurors would understand that it takes two to make an argument." Perhaps a different trial court judge would have agreed. But we are not a trial court. Our function as a reviewing court mandates that we ask only whether the trial court's ruling fell outside the bounds of reason. (People v. Osband, supra, 13 Cal.4th at pp. 666, 678.) Here it did not.
In secondary arguments, Juarez renews his claims that the trial court violated his Sixth and Fourteenth Amendment rights. For reasons similar to those we have already stated, these claims are without merit.
Our Supreme Court has stated," '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.'" (People v. Cudjo (1993) 6 Cal.4th 585, 611.) Here, the trial court did not restrict Juarez's right to cross-examine Deputy Contreras on admissible evidence, and Juarez does not claim that the excluded evidence pertained to Deputy Contreras's credibility. In the same manner as before, Juarez instead sought to undermine Doe's credibility with Deputy Contreras's testimony, which cannot serve as the basis of a confrontation clause claim. The trial court's application of the ordinary rules of evidence did not violate either appellant's Sixth Amendment confrontation right or his due process right to a fair trial.
C. Admission of Expert Testimony on Intimate Partner Battering
Juarez next contends the trial court committed reversible error by admitting expert testimony about domestic violence. In an initial line of argument, Juarez reasons that the trial court abused its discretion by admitting irrelevant expert testimony under section 1107. Juarez also asserts in secondary arguments that the trial court's admission of the testimony was unduly prejudicial under section 352 and in violation of his due process right to a fundamentally fair trial.
We do not agree. Prior to trial the prosecution filed a motion in limine seeking admission of expert testimony on the effects of intimate partner battering under section 1107. The prosecution's justification for doing so was that Juarez had punched Doe in the face prior to the July 25 incident, yet Doe had failed to report this to authorities. In Doe's conversation with firefighter Valdes before the arrival of police, Doe had also failed to disclose that Juarez committed sexual acts on her. Finally, Doe did not mention the nose-punch incident in her initial interview with Deputy Contreras but brought it up in her second interview with him. The prosecutor supposed, "[a] jury could wonder whether or not the failure to report a rape or sodomy at the initial point of seeking help means that [Doe] was not being credible during the latter interview." The prosecution offered similar lines of argument for Doe's other nondisclosures. The prosecutor continued, "I believe that an expert who can testify about their experience with domestic violence and sexual assault victims could help to dispel some of those myths for the jury." The trial court agreed with the prosecution and allowed the testimony despite objections from defense counsel as to its relevance.
At trial, retired Sergeant Linda Gibbons of the San Mateo County Sheriff's Department testified as an expert in intimate partner violence. Sergeant Gibbons testified as to the "cycle of violence" in abusive relationships between intimate partners. She spoke of the three phases common to this cycle: the tension-building phase, the explosion phase, and the hearts and flowers phase. She then continued by noting that victims often stay in the relationship for a number of reasons. She finished by explaining that in the aftermath of this cycle, victims often change their stories or fail to report assaults, especially those of a sexual nature. After the close of evidence, the trial court used CALCRIM No. 850 to instruct the jury. It stated, "You have heard testimony from Retired Sgt. Linda Gibbons regarding the effect of intimate partner battering. Linda Gibbon[s]'s testimony about [intimate partner battering] is not evidence that the defendant committed any of the crimes charged against [him]. [¶] You may consider this evidence only in deciding whether or not [Doe]'s conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of . . . her testimony."
In reviewing the ruling of the trial court, we adhere to the well-established principle that "the admissibility of . . . evidence has two components: (1) whether the challenged evidence satisfied the 'relevancy' requirement . . . and (2) if the evidence was relevant, whether the trial court abused its discretion under Evidence Code section 352 in finding that the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice." (People v. Scheid (1997) 16 Cal.4th 1, 13.) We will address these in turn.
For many years, trial courts often excluded expert testimony on intimate partner violence. (People v. Brown (2004) 33 Cal.4th 892, 902 (Brown).) To remedy this problem, the Legislature added section 1107. (Brown, at pp. 902-903.) As one of the authors explained," 'This bill is necessary to ensure that all relevant evidence is admitted in a criminal case. . . . The measure is merely intended to allow a jury to consider all the evidence in a particular case.'" (In re Walker (2007) 147 Cal.App.4th 533, 547, quoting Assem. Com. on Public Safety, Rep. on Assem. Bill No. 785 (1991-1992 Reg. Sess.) as introduced Apr. 9, 1991.) In its current form, section 1107, subdivision (a) reads: "In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." In addition, evidence of this nature may be admissible under section 801 (governing admissibility of expert testimony generally) when it would "assist the trier of fact." (§ 801, subd. (a); Brown, supra, at pp. 895-896, 905.)
Juarez and the Attorney General both rely heavily on Brown, supra, 33 Cal.4th 892, a leading precedent on the interpretation of this statute. Key to that case was the fact that the victim had suffered only a single incident of abuse. (Id. at pp. 895-896, 904-905, 908.) The court was thus faced with an apparent conundrum in the wording of section 1107 at the time that insinuated an application only to women who had been subjected to an extended period of abuse. (Brown, at pp. 904-905.) But the court concluded that despite the singular showing of abuse, the expert testimony was still admissible (relying there on section 801). (Brown, at pp. 905, 908.) "When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness." (Id. at p. 906.) The Brown court noted that "[t]here was an adequate foundation for that expert testimony, because evidence presented at trial suggested the possibility that defendant and [the victim] were in a 'cycle of violence' . . . ." (Id. at p. 907, italics added.) The court finished by stating that "[t]he argument that evidence relating to credibility cannot be admitted until the underlying charge has been found true was rejected [in] . . . a domestic violence case, and in . . . a child molestation case." (Id. at p. 908.) Yet "[t]here must be independent evidence of domestic violence . . . . Here such evidence was supplied by both [the victim's] trial testimony in court and by her earlier statement to [law enforcement]." (Ibid.)
Section 1107, subdivision (a) originally included wording which referenced "battered women's syndrome." The syndrome pertained to women who had been subjected to an extended period of abuse. (Brown, supra, 33 Cal.4th at p. 904.)
Turning to the ruling, we agree with the trial court that the testimony was relevant. Admission of evidence requires clearing what is a relatively low bar. In Brown, supra, 33 Cal.4th 892, the victim's own testimony and her statement to law enforcement were enough to establish the possibility of domestic violence. (Id. at pp. 907-908.) And as Brown also noted, "[o]nce there is evidence from which the trier of fact could find the charges true, evidence relating to the credibility of the witnesses becomes relevant and admissible." (Id. at p. 908.) Here, Doe testified that Juarez punched her in the face and told law enforcement as much in her second interview with Deputy Contreras. Doe's version of events also follows the "cycle of violence" described by Sergeant Gibbons. After he punched Doe in the nose, Juarez later became affectionate. Juarez then followed her to work, yet persistently accused her of cheating on him, before again exploding during the July 25 incident.
These events correspond to a revolution of the cycle. Juarez began it on the second phase by "exploding" and punching Doe in the nose. Juarez then proceeded to the third phase by becoming affectionate. The couple then shifted to the first phase as tension built through Juarez's persistent accusations. Juarez contends that "the evidence did not show that [he] repeatedly exerted power and control over Doe . . . or that [he] and Doe repeatedly lived through a 'cycle of violence.'" There is no foundational prerequisite, however, for evidence of repeated completions of the cycle of violence. Under Brown, evidence of only one revolution in the cycle of violence is a sufficient foundation for domestic violence expert testimony. (Brown, supra, 33 Cal.4th at pp. 907-908.)
In a counterargument, Juarez contends that no expert testimony was necessary because Doe "immediately disclosed the nose punch allegation to [Juarez's] aunt and two cousins and to her friend, Reyna Gonzalez." Reporting the incident to friends and family, however, is not the same as reporting to law enforcement. The jury would have been justified in supposing that perhaps Doe's unwillingness to endure the scrutiny of the justice system meant the punching incident never occurred. Additionally, the inconsistencies in Doe's disclosures could lead the jury to question her credibility. Defense counsel's arguments against admitting the expert testimony made clear that he would seek to undermine Doe's credibility by exploiting her delayed disclosures as well as her decision to continue having a sexual and romantic relationship with Juarez after he punched her in the nose. Admitting expert testimony would thus be relevant to rehabilitating Doe's credibility.
Turning to the section 352 strand of the argument, Juarez claims that admitting this expert testimony was unduly prejudicial to him. He argues the testimony "encouraged the jury to speculate that [he] was a chronic abuser of Doe" and "therefore guilty of the charged crimes." We disagree with this characterization and conclude the court was within its discretion to admit the testimony.
As noted earlier, "prejudice" in the scheme of analysis under section 352 means evidence that" 'uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.'" (People v. Heard (2003) 31 Cal.4th 946, 976.) Juarez argues the testimony at issue here was prejudicial because it invited the jury to speculate, but nothing in the record supports such an argument. Sergeant Gibbons stated that, in explaining the dynamics of domestic violence as she did, her purpose was "to educate on the generalities of domestic violence, intimate partner battering and . . . what is going on with the victim." And as we already stated, it appears the testimony was proffered by the prosecution to rehabilitate Doe's credibility, not to paint Juarez in a negative light or prove his guilt. Nor did Sergeant Gibbons suggest that Juarez was a serial abuser or that there was evidence of serial abuse in this case. The testimony shed light on the specific instances-plural-of domestic violence shown by the evidence in this case and was no broader than necessary to accomplish that end.
Furthermore, the trial court expressly instructed the jury under CALCRIM No. 850 that the testimony "is not evidence that [Juarez] committed any of the crimes charged." It further instructed the jury that it could consider the expert testimony "only in deciding whether or not [Doe]'s conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of . . . her testimony." We presume jurors are "able to understand and correlate instructions" and we further presume that they "have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) For the foregoing reasons, we do not believe the trial court abused its discretion, nor do we think its admission of expert testimony on intimate partner battering was unduly prejudicial to Juarez.
Finally, Juarez contends that the trial court's ruling on the expert testimony deprived him of his constitutional due process right to a fundamentally fair trial. He attempts to support his argument by stating, "[t]he improper inference that [he and Doe] were engaged in a cycle of violence was likely to lead the jury to conclude that appellant was predisposed to commit criminal acts of domestic violence because he was the type of person to commit such crimes." This supposition is baseless. There is no evidence to support the contention that the expert testimony was offered as proof of criminal propensity towards domestic violence. There is also no proof the jury ignored the explicit instructions of the trial court that the testimony would be used only to evaluate the credibility and conduct of Doe. Juarez's claim on this point is pure speculation.
D. The Second Degree Robbery Conviction
Juarez next contends that insufficient evidence supports his conviction of second degree robbery under Penal Code section 212.5, subdivision (c). Here, too, we reject his claim of error.
"The standard of appellate review for determining the sufficiency of the evidence is settled." (People v. Wilson (2008) 44 Cal.4th 758, 806.) We review the whole record "in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.) We do not reweigh evidence or reassess a witness's credibility, presuming the existence of every fact a rational trier of fact could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Robbery in California is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Pen. Code, § 211.) "At base, robbery is a theft coupled with the use of force or fear to obtain the property-theft being defined in relevant part by [Penal Code] section 484, subdivision (a) as a 'felonious' taking of 'the personal property of another.'" (People v. Aguilera (2016) 244 Cal.App.4th 489, 500.) This "felonious taking" element "is the intent to steal, or to feloniously deprive the owner permanently of his or her property." (People v. Bacon (2010) 50 Cal.4th 1082, 1117.) But of note is that the "intent to permanently deprive . . . is not an accurate description of the required mens rea." (People v. Aguilera, supra, at p. 500.) For instance, our Supreme Court has held that this intent to deprive permanently is satisfied by the intent to deprive temporarily, but for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment of the property. (People v. Avery (2002) 27 Cal.4th 49, 58.) As the court described it there, such an intent is" 'equivalent to the intent to permanently deprive an owner of property.'" (Id. at p. 57.)
Turning to the record, Doe testified that after the bathroom assault, Juarez chased her as she ran from him. When Juarez finally caught up with her, he took the car keys from her back pocket. Juarez then moved to the other side of the street from Doe and waited there holding the keys until a fire truck arrived and Doe ran into the station for help. At this point Juarez returned to the PayPal office and later drove away in Doe's vehicle.
It is Juarez's contention that the evidence was lacking to support the finding that he had the requisite mens rea for a robbery conviction. He insists that "there is no evidence that appellant intended a temporary taking of the car keys for an unreasonable time so as to deprive Doe of a major portion of the value or enjoyment of her keys and car." Instead Juarez argues that his taking of the keys was a ploy of sorts to convince Doe to accompany him back to their workplace or home. Juarez also maintains that "[t]he evidence suggests that [he] would have welcomed Doe agreeing to leave with him in her car, which would have resulted in no separation from her property." As a final point, Juarez characterizes his actions as "nothing more than an overreaction to his frustration that Doe refused to go with him."
While these arguments would be perfectly suitable for a jury, we fail to recognize them as approaching the necessary threshold for an insufficiency of the evidence claim. (See Jackson v. Virginia (1979) 443 U.S. 307, 319 ["Instead, the relevant question 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."].) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) Here, the jury was properly instructed pursuant to CALCRIM No. 1600 that, to convict Juarez of robbery, it had to find that "[w]hen the defendant used force or fear, [he] intended to deprive the owner of the property permanently [or] to remove the property from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property." The instructions also read: "If the defendant did not form this required intent until after using the force or fear, then [he] did not commit robbery." Given that the jury was properly instructed, a reasonable trier of fact could infer Juarez took the keys to keep Doe reliant on him to get home, thereby depriving her of the value and enjoyment of her property. We cannot say no rational trier of fact could have convicted on this record.
E. Juarez's Penal Code Section 654 Claim
After the jury convicted Juarez on all counts, the trial court selected Juarez's conviction of robbery in count 6 as the principal term and imposed an upper term of five years. The court also imposed four consecutive terms of one-third the middle term: eight months for his conviction of criminal threat in count 3, one year for his conviction of assault by means likely to produce great bodily injury in count 4, and one year each for his convictions of corporal injury to a cohabitant in counts 5 and 7. The court added two enhancement terms of one year each for his use of a knife as to the convictions in counts 3 and 5, for an aggregate determinate term totaling 10 years and eight months. Under the one-strike sentencing law (Pen. Code, § 667.61), the court imposed a consecutive indeterminate term of 15 years to life imprisonment for his conviction of rape in count 1 with a concurrent indeterminate term of 15 years to life imprisonment for his conviction of sodomy in count 2.
Juarez contends the terms imposed for his criminal threat conviction in count 3 and assault by means likely to produce great bodily injury in count 4 must be stayed pursuant to Penal Code section 654 because the commission of those two crimes was part of an indivisible course of conduct with his commission of corporal injury to a cohabitant in count 5. We disagree.
As relevant, Penal Code section 654, subdivision (a) provides: "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." While perhaps ambiguous in its wording, Penal Code section 654 is straightforward in its singular purpose: prohibition against being punished twice for the same act. (See People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) In essence, it is designed to ensure that a defendant's punishment will be commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551 (Perez).) Application of the statute has been the subject of much controversy, but the accepted test for a violation of Penal Code section 654 is that put forward in Neal v. State of California (1960) 55 Cal.2d 11. The Neal test states, "[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor." (Id. at p. 19.) If all of the offenses were incident to one objective, the defendant may be punished for one of such offenses but not for more than one. (Ibid.)
We note, however, that there exist levels of refinement to the Neal test that emerged in the years since that decision. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) For instance, if one were to look solely at the language of Neal's" 'one intent and objective'" test, the commission of a crime to facilitate more at a date much later would warrant only one punishment. (Ibid.) Subsequent decisions have eliminated such a possibility, "in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant's punishment will be commensurate with his culpability." (Ibid.; see generally People v. Latimer, supra, 5 Cal.4th 1203.) An example of these refinements is that in People v. Beamon (1973) 8 Cal.3d 625. In a footnote, the court stated that even if a course of conduct is "directed to one objective," it may "give rise to multiple violations and punishment" if it is "divisible in time." (Id. at p. 639, fn. 11.) Thus, "[w]here the defendant's acts are 'temporally separated' they 'afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense].'" (People v. Deegan (2016) 247 Cal.App.4th 532, 542, quoting People v. Gaio (2000) 81 Cal.App.4th 919, 935.) There are also other notable limitations, some of which will assist our decision on this matter. (E.g., People v. Harrison (1989) 48 Cal.3d 321, 334-338 [multiple sex crimes each have the separate objective of achieving additional sexual gratification]; Perez, supra, 23 Cal.3d at pp. 551-554 [similar]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 ["each shot [fired at the same victim] evinced a separate intent to do violence"].)
As to our standard of review, "[t]he question of whether [Penal Code] section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination." (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; see People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) "Its findings on this question must be upheld on appeal if there is any substantial evidence to support them." (People v. DeVaughn, supra, at p. 1113.) Furthermore, the court's findings may be express or implied. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) Here they are implied.
Applying this analysis to the record here, we must first account for the acts which correspond to the punishments levied on Juarez. We see that the convictions for counts 3, 4, and 5 were for the following three actions: Juarez's threat that he'd kill Doe and "cut [her] up into pieces" (count 3), his strangulation of her with the lanyard on her neck (count 4), and his infliction of "numerous injuries" on Doe (count 5). The first in order were the injuries constituting count 5. Juarez grabbed Doe by her hair and threw her against the sink. Her body crumpled to the ground whilst her head and neck lay against the bathroom wall. With Doe still on the ground and crying, Juarez then made the decision to straddle her and begin strangulating her with the lanyard around her neck. He then cut her on her pinkie finger and forearm. And while on top of her for twenty minutes, Juarez threatened to cut Doe up, adding that she would not be able to walk out of the bathroom.
While we acknowledge that these crimes occurred near each other, temporally and physically, that fact alone is not dispositive. "It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible." (People v. Harrison, supra, 48 Cal.3d at p. 335.) In Harrison, for example, the court allowed separate and consecutive punishment on the basis of the defendant's intent. (Id. at pp. 335-337.) Its reasoning in so holding was that the defendant had a separate intent to obtain sexual gratification each time he committed a sexual penetration. (Id. at p. 337.) Even more on point, however, is People v. Trotter, supra, 7 Cal.App.4th 363. There, the defendant fired a handgun at a police officer in pursuit three separate times, the first and second shots being spaced by about a minute, and the third shot following a few seconds after the second shot. (Id. at pp. 366, 368.) After the trial court imposed consecutive sentences for the first and second shots, the appellate court held there not to be a Penal Code section 654 violation, despite the temporal proximity of the shots and the defendant's contention that each one shared the same objective of getting the officer to break off his pursuit. (Trotter, supra, at pp. 365, 367-368.) The court reasoned that "[e]ach shot required a separate trigger pull" and that "[a]ll three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible." (Id. at p. 368.) It concluded," 'Defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.'" (Ibid.)
The similarities between Trotter and this record are striking enough for us to adopt its reasoning. Juarez claims his threat and assaults were all part of the same objective-terrorizing Doe. His physical and mental assaults on her were spaced out over a period of only twenty minutes. And yet, each act by Juarez required him "to pull the trigger," so to speak. After throwing the mother of his child against a sink, he could have easily halted his activity. But he chose to continue by choking, cutting, and threatening her in successive acts. Furthermore, there was time prior to each new action for Juarez to reflect and consider his next. Nor can Juarez claim these actions constituted some sort of spontaneous or uncontrollable outburst. He sat, straddled upon Doe, for twenty minutes while choking and subsequently threatening her. The purpose behind Penal Code section 654 is to ensure a defendant's punishment will be commensurate with his culpability. (Perez, supra, 23 Cal.3d at p. 552.) Juarez threatened Doe's life, strangled her, sliced her with a knife, and assaulted her in various ways. To find Penal Code section 654 applicable on these facts would fly in the face of the fundamental purpose of the statute.
F. Error in Imposition of Full One-year Enhancement Terms
Next, Juarez argues that although the statutory term for the enhancement for use of a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) is one year, the imposition of full one-year enhancement terms as to his convictions for criminal threat in count 3 and injury to a spouse or cohabitant in count 5 violates the determinate sentencing law, which requires one-third subordinate terms.
Penal Code section 1170.1, subdivision (a) provides, in relevant part: "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." The language is unambiguous. When a one-third subordinate term is imposed for a substantive offense to which an enhancement is attached, the term for the enhancement must also be a one-third term. (People v. Moody (2002) 96 Cal.App.4th 987, 992-993.) Thus, the trial court was required to reduce the one-year terms for the weapon enhancements to four months.
Juarez argues that this mistake requires a remand. We disagree. "When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441; see Pen. Code, § 1260 [appellate court may "reverse, affirm, or modify a judgment or order appealed from"].)
G. Recently Enacted Senate Bill 567
In a supplemental brief, Juarez brought to our attention a sentencing issue raised by an impending legislative revision to the determinate sentencing scheme. (Pen. Code, § 1170, as amended by Stats. 2021, ch. 731, § 1.3.) Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) was recently signed by the Governor and is set to take effect January 1, 2022. In the choice of possible terms within a determinate sentencing triad under Penal Code section 1170, subdivision (b), Senate Bill 567 allows imposition of no higher than the middle term absent either a stipulation to, or jury findings beyond a reasonable doubt of, facts that support aggravating circumstances justifying the upper term. (Senate Bill 567; Pen. Code, § 1170, subd. (b)(1)- (2), effective Jan. 1, 2022.) It also requires the court to set forth on the record the facts and reasons for choosing the sentence imposed. (Senate Bill 567; Pen. Code, § 1170, subd. (b)(5), effective Jan. 1, 2022.) In this case, the trial court's choice of the upper term of five years on count 6, the robbery count, is not accompanied by a record setting forth these newly requisite facts and reasons.
While Senate Bill 567 has yet to take effect, we may in our disposition take into account an imminent change in sentencing law that we anticipate will be in force by the time our remittitur issues. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.) There is no question here that Senate Bill 567, when it does take effect, will apply retroactively as an ameliorative change in the law to all nonfinal convictions on appeal at that time. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Thus, Juarez may avail himself of any newly conferred advantages extended by Senate Bill 567. The Attorney General does not contest that. The Attorney General argues, however-and we agree-that the court's intentions in choosing the upper term for robbery are clear and that there is no need for remand.
It is apparent from the trial court's statements at sentencing that it relied solely on the aggravating circumstances pertaining to Juarez's offenses in imposing the upper term for the robbery count. The record shows that court reviewed the prosecution's "sentencing memorandum." The court also presumably reviewed the probation report. (§ 664 ["It is presumed that official duty has been regularly performed."].) The aggravating factors pertaining to Juarez's crimes cited in the sentencing memorandum and the probation report apparently guided the court. At the sentencing hearing, the court extensively discussed the evidence of the crimes and the findings made by the jury. The jury's verdicts convicting Juarez of every offense and enhancement allegation charged showed that it unequivocally believed the victim's version of events and disbelieved his version. Even assuming any error here is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18 (cf. People v. Sandoval (2007) 41 Cal.4th 825, 838 [denial of 6th Amend. right to jury trial on the existence of aggravating circumstances subject to Chapman harmless error analysis]), that standard is met on this record. We are satisfied that, had Senate Bill 567 been in effect at the time of sentencing, the court would have made findings supporting the upper term for robbery based on a determination that the jury would have found aggravating circumstances beyond a reasonable doubt. (People v. Wilson, supra, 44 Cal.4th at pp. 812-813.) We therefore think it would be pointless to remand the case for a further record-making exercise.
III. DISPOSITION
We shall modify the judgment by striking the term of two years imposed for the Penal Code section 12022, subdivision (b)(1) enhancements and substituting for it the reduced term of eight months-one-third of the one-year term for each enhancement found in counts 3 and 5-which, when the judgment is so modified, will result in a total determinate term of nine years and four months. Except as so modified, the judgment is affirmed. The superior court shall prepare an amended abstract of judgment reflecting the above modifications and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: POLLAK, P. J., TUCHER, J. [*]
[*] Presiding Justice of the Court of Appeal, First Appellate District, Division Three, sitting by assignment pursuant to article VI, section 6 of the California Constitution.