Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. George G. Lomeli, Judge. Los Angeles County Super. Ct. No. BA317975
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
A 16-count information charged defendant Jose Rene Martinez with various crimes related to the sexual assaults of four women in the Hollywood area between November 2006 and February 2007. The jury found defendant guilty on all but one count. On appeal, defendant challenges the sufficiency of the evidence to support three convictions for attempted forcible oral copulation as to one of the victims. He also argues Penal Code section 654 (“section 654”) requires that certain sentences be stayed.
Although we reject defendant’s sufficiency of the evidence argument, we agree section 654 requires that certain sentences (although not the ones defendant urges) be stayed.
Background
1. Information
The charges against defendant were as follows: Count 1: Attempted kidnapping to commit forcible rape and forcible oral copulation as to victim Keri B. (§§ 664, 209(b)(1).) Count 2: Assault with intent to commit forcible rape, sodomy, and forcible oral copulation as to victim Keri B. (§ 220(a).) Count 3: Kidnapping to commit forcible rape and forcible oral copulation as to victim Annabella B. (§ 209(b)(1).) Count 4: Forcible oral copulation as to victim Annabella B. (§ 288a(c)(2).) Count 5: Forcible oral copulation as to victim Annabella B. (§ 288a(c)(2).) Count 6: Assault to commit forcible rape, forcible oral copulation during the commission of a first degree burglary as to victim Annabella B. (§ 220(b).) As to Counts 4 and 5, the information alleged that defendant committed the offenses during the commission of a residential burglary with the intent to commit forcible rape and forcible oral copulation. (§ 667.61, subds. (a) and (d).) Count 7: Kidnapping to commit robbery and forcible oral copulation as to victim B.M. (§ 209(b)(1).) Count 8: Second degree robbery as to victim B.M. (§ 211.) Count 9: Attempted forcible oral copulation as to victim B.M. (§§ 664, 288a(c)(2).) Count 10: Attempted forcible oral copulation as to victim B.M. (§§ 664, 288a(c)(2).) Count 11: Attempted forcible oral copulation as to victim B.M. (§§ 664, 288a(c)(2).) Count 12: Annoy or molest victim Adeline R., a child under 18 years old. (§ 647.6(a).) As to Count 12, the information alleged that Adeline R. was particularly vulnerable within the meaning of Rule 4.421(a)(3). Count 13: Kidnapping to commit robbery, forcible rape and forcible oral copulation as to victim Amy C. (209(b)(1).) Count 14: Second degree robbery as to victim Amy C. (§ 211.) Count 15: Forcible oral copulation as to victim Amy C. (§ 288a(c)(2).) Count 16: Forcible rape as to victim Amy C. (§ 261(a)(2).)
Unless otherwise noted, all section references are to the Penal Code.
As to all counts except Count 12, the information also alleged the following: (i) in the commission of the offenses, defendant used a deadly weapon (a box cutter) within the meaning of section 12022.3, subdivision (a), which caused the offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(23); (ii) the alleged crimes involved great violence, great bodily harm, the threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness within the meaning of California Rules of Court, rule 4.421(a)(1); and (iii) at the time of the commission of the crime, defendant was armed with or used a weapon (a box cutter) within the meaning of Rule 4.421(a)(2).
As to Counts 4, 5, 15 and 16, the information also alleged the following: (i) within the meaning of section 667.61, subdivisions (a) and (d), defendant kidnapped the victims and the movement of the victims substantially increased the risk of harm to the victims over and above that level of risk necessarily inherent in the underlying crimes; (ii) within the meaning of section 667.61, subdivisions (a), (b) and (e), defendant kidnapped the victims in violation of section 209 and defendant personally used a dangerous or deadly weapon (a box cutter) in the commission of the offenses in violation of section 12022.3; and (iii) within the meaning of section 667.61, subdivision (b), defendant committed an offense specified in section 667.61, subdivision (c) against more than one victim.
Finally, as to all counts, the information alleged that defendant carried out the crimes with planning, sophistication and professionalism within the meaning of Rule 4.421(a)(8) and engaged in violent conduct (namely, over the course of a few months, he sexually assaulted four women with a box cutter), which conduct indicates a serious danger to society within the meaning of Rule 4.421(b)(1).
2. Prosecution Case
a. Amy C. (Counts 13 – 16)
At approximately 6:00 a.m., on November 22, 2006, Amy C. stood at a bus stop at the corner of Spaulding and Melrose. A man grabbed her from behind and put an orange box cutter to her neck and demanded money. The man wore a grey hooded sweatshirt with the hood up. The man pulled her across the street to an alley, through a gate, into a parking lot and then into a secluded alcove area. The man demanded money from Amy, and she gave him a dollar, which was all she had. Unsatisfied, the man looked through her bag, but was not interested in her credit cards. Amy asked if she could go, but the man refused to let her go and held the box cutter as if he were going to strike her with it. The man saw Amy’s cell phone in her bag and took the phone.
The man then told Amy to kiss him, saying “I’m serious.” Amy kissed him. The man then stuck his hand down her shirt and under her bra. Amy again asked if she could leave, but the man just said “I’m serious” and pulled his pants down. He then pushed Amy down onto her knees and forced her to orally copulate him. All the while, the man continued to hold the box cutter as if he would strike her with it. The man then pulled Amy up by her sweatshirt and moved her to another secluded location nearby, where he raped her. The man ejaculated inside her. He told Amy to stay there and he left. Amy started to leave, when the man came running back toward her, holding the box cutter and yelling that he had told her to stay there. So she went back. This happened one more time, when finally, on her third attempt, Amy was able to leave the area and call for help at a nearby store.
A friend took Amy to a rape treatment center, where a nurse examined Amy and took swabs from her body. The nurse noted injuries consistent with rape. The swabs taken from Amy revealed non-motile sperm. DNA from the vaginal swab matched defendant’s DNA.
Amy helped the police create a sketch of the man who attacked her and described him as having odd, orange-colored skin and a sickly look. When shown a photographic line-up, Amy identified defendant as the man who attacked her. She also identified defendant at the preliminary hearing and at trial. The primary police investigator testified that defendant’s girlfriend at the time lived very close to the scene of Amy’s attack.
b. Keri B. (Counts 1 – 2)
On January 9, 2007, Keri B. was walking from her car to her school in the Hollywood area, when a man confronted her on the street. At the time, she was talking to her mother on her cell phone. The man was wearing a gray hooded sweatshirt with the hood up. He mumbled something and grabbed Keri by the arm. He was pointing an orange box cutter at her lower abdomen and ordered her to go back the way she had been walking. Keri screamed and ran back to the parking lot, where there was a guard. The man did not follow her. The guard ran back with her to where she had been assaulted. From there, Keri went inside her school building and called 911.
A few weeks later, the police asked Keri to look at a photographic lineup. She identified someone in the lineup, but it was not defendant. About a month later, the police showed Keri another photographic lineup. Keri identified defendant that time. At trial, Keri identified defendant as the man that confronted her.
c. Annabella B. (Counts 3 – 6)
The day after Keri B.’s assault, Annabella B. was attacked. After driving her daughter to school in the morning, Annabella returned to her apartment complex and parked in the underground garage. As she was walking toward the garage elevator, a man grabbed her and pulled her to the darkest area of the garage. He held an orange box cutter to her neck and told her not to make any noise. The man was wearing a black hooded sweater with the hood up. Annabella offered to give the man $500, but the man said “No. I want you.” He moved her toward a door in the garage, but Annabella said it was locked and she did not have the keys. The man then took her back to her car and ordered her to get in the back.
Once they were both in the back of the car, the man continued to threaten her with the box cutter. He told Annabella to kiss him, which she did, and then forced her to orally copulate him. Annabella said he “stunk terribly.” They were interrupted when someone came through the garage. At that point, Annabella looked up, but the man pushed her backwards and told her not to make a noise. After the other person left, the man forced Annabella to orally copulate him again. He put one hand inside her bra and rubbed her left breast and the other hand inside her pants and rubbed her buttocks. He also tried to pull her pants down, but Annabella resisted. Again, they were interrupted when a woman came into the garage. While the man was distracted, Annabella ran from the car yelling. The man ran in the opposite direction.
The woman who interrupted them the second time was a friend of Annabella and called 911. When her friend saw Annabella in the garage that day, Annabella was hysterical. She was screaming and spitting, her blouse was coming off and her pants were unzipped or unbuttoned.
After responding to the scene, the police took Annabella to the hospital, where she underwent a sexual assault exam. The examination revealed bruising in her mouth. A nurse took swabs from different parts of Annabella’s body. The swab from Annabella’s left breast showed a mixture of defendant’s and Annabella’s DNA. The neck swab matched only Annabella’s DNA. Annabella reviewed a photographic lineup to see if she could identify the man who attacked her. She identified a person in the lineup who was not defendant.
On February 24, 2007, more than a month after her attack, Annabella saw the man who attacked her. She was driving in her car, when she saw the man walking with a young girl, later identified as Adeline R. Adeline went into a school, and the man continued walking toward Sunset Boulevard. He was wearing a red hooded sweatshirt with the hood up. Annabella followed him in her car and called 911. The man noticed her and ran, just as the police arrived. Annabella and the police returned to the school that Adeline had entered. Annabella found Adeline, who the police then questioned. (Adeline’s testimony is summarized below.)
After that incident, police showed Annabella another photographic lineup. She identified defendant as the attacker. At trial, Annabella also identified defendant as the man who attacked her.
d. B.M. (Counts 7 – 11)
On the evening of January 18, 2007, a man wearing a red hooded sweatshirt with the hood up attacked B.M. in the underground garage to her apartment building. As B. opened the door leading from the garage to the apartment complex, a man put a red box cutter to her back and ordered her to return to the garage. He told her to give him all her money. She gave him approximately $60, which was all she had. The man was unsatisfied with that amount so he checked her wallet, which was empty, and then opened her blouse. B. told the man he could have her chain, which she pulled from her neck. But the man did not want it.
Instead, he put the box cutter to her throat and pushed her to her knees. He put B.’s hand over his penis, which he had taken out of his pants. He told her to “put it in your mouth,” but B. said she could not do it. Still holding the box cutter to her neck, the man said “Do you want to die?” and “Do it and do it quickly.” Again, B. said she could not do it and hit him with her knee in his testicles. The man moved back just a bit. Then he grabbed B. harder and pushed her down again, telling her to put his penis in her mouth. Still B. said she could not. She stood up and pushed the box cutter away from her neck, cutting her hand. Again, the man pushed her down, saying “Do you want to die?” At that point, they heard people nearby. The man told B. she could go and she walked slowly backward toward the stairwell watching him because she was afraid he might kill her. She called the police from her apartment.
The police showed B. a photographic lineup. None of the people in the lineup was the man who attacked her, although she thought one of them looked similar to him. Later, B. identified her attacker in a different photographic lineup. At the preliminary hearing and at trial, B. identified defendant as the man who attacked her. She also said that, on the night he attacked her, he “smelled bad.” The cut on B.’s hand required four stitches and antibiotics.
e. Adeline R. (Count 12)
In the morning of February 24, 2007, Adeline (who was 14 years old at the time) was walking to school when a man approached her and began talking to her. He asked her questions such as where she lived, how old she was, and if she had a boyfriend. The man was wearing a red hooded sweatshirt with the hood up, and a baseball cap with “LA” written on it under the hood. Before Adeline went into her school, the man took her cell phone (which she was holding) and figured out her cell phone number. He gave her back the phone, then called her from his phone. Once inside the school, Adeline ran to her classroom because she was afraid of the man.
About 15 minutes later, a woman, whom Adeline did not know (Annabella B.), asked Adeline to talk with her outside the classroom. Annabella asked Adeline about the man who walked with her to school. Adeline told Annabella that she did not know who the man was and that he was not her boyfriend. The police spoke with Adeline in the principal’s office. She told them how the man had called her cell phone from his cell phone.
Some days later, Adeline was shown a photographic lineup. She thought one person in the lineup looked similar to the man that walked with her, but she wanted to see his teeth because she said the man had “strange” teeth. A couple days later, Adeline came to the police station to talk with the detectives. As she walked into one of the detective’s offices, she happened to see a picture on the detective’s computer screen of the man that had walked with her a few days earlier. She told the detective that was the man. Adeline also identified defendant at trial.
f. Defendant’s arrest
The police used the phone number in Adeline’s cell phone to locate defendant. The phone that defendant used to call Adeline was his mother’s phone. The detectives went to her residence in Hollywood to look for defendant, who lived there with his mother, brother and other family members. Defendant was not home when the detectives arrived, but a man who identified himself as defendant’s uncle let the detectives into the apartment. (At trial, that man denied he was defendant’s uncle.) The detectives also spoke with defendant’s younger brother, who was outside the apartment with a friend. The brother had a red hooded sweatshirt and told the detectives that defendant had given him the sweatshirt and instructed him to go see a movie. At trial, the brother denied that defendant had given him the sweatshirt or told him to see a movie.
Detectives eventually tracked defendant to his uncle’s home in Bakersfield, where officers from the Los Angeles Police Department arrested defendant on February 27, 2007. At the time of his arrest, defendant had $600 in his pocket, though he denied that it was his. One of the arresting officers testified that defendant’s uncle told the officer that defendant’s mother had brought him there with $600 and had said defendant would stay there until things cooled down in Los Angeles. At trial, defendant’s uncle denied saying this.
During the drive back to Los Angeles, one of the arresting officers noted a “strong odor” coming from defendant’s mouth. Another arresting officer noted a “very distinct” and “strong foul odor” that seemed to come from defendant’s body and breath. DNA samples were taken from defendant’s mouth.
g. Other evidence
Defendant’s former work manager testified that defendant began working for him in early November 2006, but stopped showing up at work in early December 2006. The manager also testified that, during that time, defendant had access at work to box cutters of various colors, including orange and red.
3. Defense Case
Defendant testified on his own behalf. He admitted raping Amy C. and forcing her to orally copulate him. He testified, that, although he had a box cutter with him at the time, it had no blade. As to Keri B., defendant testified he had never seen her before trial.
Defendant testified he followed Annabella B. into her parking garage one day. He approached her with a blade-less, orange box cutter and demanded money. She told him she had $500 in her apartment, but he refused to go there with her. He ordered her into her car and he got in with her. Inside the car, defendant touched Annabella’s left breast to see if she was hiding money there. At that point someone else came into the garage, so he told Annabella to be quiet. As defendant waited for the other person to leave, Annabella got away. Defendant then ran from the building. Defendant denied that he forced Annabella to orally copulate him or that he sexually assaulted her.
Defendant testified he also followed B.M. into her parking garage and demanded money from her. He testified he again had the box cutter with him and, that time, it had a blade and B. cut herself with it. According to defendant, B. had so little money with her that he decided not to take it. He testified that she pulled her chain off her neck to give him, but he refused that too. Defendant heard noises, so he left. Defendant denied that he forced B. to orally copulate him or that he sexually assaulted her.
He testified he had talked with Adeline R. briefly, but did not say anything of a sexual nature. According to defendant, Adeline wanted his phone number so he called her cell phone so that her phone would record his number.
4. Verdict and Sentencing
The jury found defendant guilty on all but one count and found true all special allegations. The jury was unable to reach a verdict on Count 12, which charged defendant with annoying or molesting Adeline R., a child under 18 years old, in violation of section 647.6, subd. (a).
The court denied probation and sentenced defendant as follows: Count 1: Stayed under section 654. Count 2: 14 years in prison (mid-term of 4 years, plus 10 years under § 12022.3), $20 court security assessment, $200 restitution fine, $200 parole revocation restitution fine (which was stayed), and defendant ordered to register as a sex offender. Count 3: Life in prison, plus 1 year under § 12022(b)(1), and a $20 court security assessment. Count 4: 25 years to life, plus 10 years under § 12022.3, and a $20 court security assessment. Count 5: 16 years (mid-term of 6 years, plus 10 years under § 12022.3), and $20 court security assessment. Count 6: Life in prison plus a $20 court security assessment. Count 7: Life in prison plus a $20 court security assessment. Count 8: 16 months in prison (one third the mid-term (12 months), plus 4 months under § 12022(b)(1)), and a $20 court security assessment. Count 9: 13 years in prison (mid-term of 3 years, plus 10 years under § 12022.3) plus a $20 court security assessment. Count 10: 28 months in prison (one third the mid-term (12 months), plus 16 months under § 12022.3), and a $20 court security assessment. Count 11: 28 months in prison (one third the mid-term (12 months),plus 16 months under § 12022.3), and a $20 court security assessment. Count 12: Dismissed. Count 13: Life in prison plus a $20 court security assessment. Count 14: 16 months in prison (one third the mid-term (12 months), plus 4 months under § 12022(b)(1)), and a $20 court security assessment. Count 15: 25 years to life in prison. Count 16: 16 years in prison (mid-term of 6 years, plus 10 years under § 12022.3) and a $20 court security assessment.
Although the minute order from the sentencing hearing indicates the court sentenced defendant to life in prison on Count 1, the reporter’s transcript from the hearing does not reflect that sentence.
Except as to Count 1, the trial court ordered all sentences to run consecutively. The court stayed the life sentence on Count 1 under section 654. At the sentencing hearing, the trial court stated that “in imposing consecutive sentencing[, ] the sex crimes involved either separate victims or the same victims but separate occasions in this matter.” However, the Court stated that, with respect to Amy C., “it is one continuous act.”
Discussion
1. Sufficiency of the Evidence (Counts 9 – 11)
Defendant argues the evidence supports one conviction (not three) for attempted forcible oral copulation as to victim B. M. We disagree.
In assessing the sufficiency of evidence to support a judgment, we review the evidence most favorably to the judgment to determine whether reasonable and credible evidence exists from which a reasonable trier of fact could have determined guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not redetermine the weight of the evidence or the credibility of witnesses. (Ibid.) Nor do we substitute our reasonable inferences drawn from the evidence for those drawn by the trier of fact. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The parties agree that an “attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a. See also People v. Carpenter (1997) 15 Cal.4th 312, 387.)
We conclude the evidence supports the jury’s findings that defendant attempted three times to commit forcible oral copulation with B.M. As detailed above, defendant first attempted to force B. to orally copulate him by putting a box cutter to her throat, pushing her to her knees, putting her hand on his penis and saying “Put it in your mouth.” B. resisted and defendant said “Do you want to die?” B. was able to get up and kick defendant in his testicles, causing him to move back a bit. Thus, his first attempt failed.
Defendant was determined and tried a second time to force B. to orally copulate him. He grabbed her hard and pushed her back down to her knees. He again told her to put his penis in her mouth, but she again resisted. B. was able to stand up and push the box cutter away from her throat. Thus, his second attempt also failed.
Still determined, however, defendant tried a third time to force B. to orally copulate him. He again pushed her down and said “Do you want to die?” Only when they heard people nearby did defendant give up and let B. go. Thus, his third attempt was thwarted as well.
Defendant also argues that, even if the three convictions for forcible oral copulation as to B.M. withstand scrutiny, section 654 requires that two of the sentences on those counts be stayed. We need not address this argument, however, because, as discussed below, we conclude section 654 requires the sentences on Counts 9, 10 and 11 to be stayed for another reason. (See, below, Discussion part 2.c.)
2. Section 654
Defendant argues that, under section 654, the trial court was required to stay imposition of the sentences on Count 3 (kidnapping Annabella B. to commit forcible rape and forcible oral copulation), Count 6 (assaulting Annabella B. to commit forcible rape and forcible oral copulation), Count 7 (kidnapping B.M. to commit robbery and forcible oral copulation), and Count 13 (kidnapping Amy C. to commit robbery, forcible rape and forcible oral copulation). Respondent concedes defendant’s section 654 argument with respect to Count 13, but disputes it as to Counts 3, 6 and 7.
Although defendant did not raise his section 654 arguments below, we conclude he has not waived them for purposes of appeal. “Ordinarily, a section 654 claim is not waived by failing to object below. ‘[T]he waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.’ (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.) This is an exception to the general rule that only those claims properly raised and preserved by the parties are re viewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (See People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)” (People v. Hester (2000) 22 Cal.4th 290, 295.)
Section 654, subdivision (a), provides that “[a]n 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 when a 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.) If defendant had multiple independent criminal objectives, however, he may be punished for each offense even if the offense shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
a. Amy C. (Counts 13 – 16)
Because respondent concedes defendant’s section 654 argument with respect to the crimes against Amy C., we begin with that argument. Four of the sixteen counts involved crimes against Amy C. As to that victim, the jury found defendant guilty of kidnapping to commit another crime—specified as robbery, forcible rape and forcible oral copulation—in violation of section 209, subdivision (b)(1) (Count 13), second degree robbery in violation of section 211 (Count 14), forcible oral copulation in violation of section 288a, subdivision (c)(2) (Count 15), and forcible rape in violation of section 261, subdivision (a)(2) (Count 16). The jury also found true the allegations that defendant used a box cutter in committing each of these crimes and that, with respect to Counts 15 and 16, defendant kidnapped the victim, which substantially increased the risk of harm to the victim. (§§ 12022.3, subd. (a), and 667.61, subds. (a) and (d).)
On Count 13 (kidnapping Amy C. with the intent to commit robbery, forcible rape and forcible oral copulation), the trial court sentenced defendant to life in prison. On Count 14 (second degree robbery), the court sentenced defendant to 16 months in prison. On Count 15 (forcible oral copulation), the court sentenced defendant to 25 years to life in prison. And, on Count 16 (forcible rape), the court sentenced defendant to 16 years in prison. The court ordered these sentences to run consecutively.
Defendant argues that, under section 654, the trial court should have stayed the life sentence on Count 13 (kidnapping with the intent to commit robbery, forcible rape and forcible oral copulation). Defendant claims that, in kidnapping Amy C., he had no other objectives than robbery, rape and oral copulation. He claims that, because the jury found him guilty of robbery, rape and oral copulation with respect to Amy C., and the trial court sentenced him separately for those crimes, his sentence on the kidnapping charge must be stayed. Respondent agrees, stating that defendant “kidnapped Amy, then robbed her, forced her to orally copulate him, and raped her. Because the evidence in the record does not appear to support objectives for Amy’s kidnapping other than robbery, forcible oral copulation, and rape, sentencing on the kidnapping conviction should have been stayed under Section 654.”
We agree that section 654 applies to some of the sentences imposed for the crimes against Amy C. We disagree, however, as to which sentence or sentences must be stayed. Section 654 requires that “[a]n 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.” (§ 654, subd. (a).) Here, section 209, subdivision (b)(1) provides that a person (such as defendant) found guilty of kidnapping with the intent to commit robbery, rape or oral copulation “shall be punished by imprisonment in the state prison for life with the possibility of parole.” And, as noted above, this is the sentence the trial court imposed for Count 13. The other sections under which defendant was sentenced for his crimes against Amy C. provide for shorter sentences. (See §§ 211, 213, and 12022, subd. (b)(1) [second degree robbery punishable by two, three or five years in prison, plus one year for use of the box cutter]; §§ 288a, subd. (c)(2), and 667.61, subds. (a) and (d) [forcible oral copulation when risk of harm substantially increased because of kidnapping punishable by 25 years to life in prison]; §§ 261, subd. (a)(2), 264, and 667.61, subds. (a) and (d) [forcible rape when risk of harm substantially increased because of kidnapping is punishable by 25 years to life in prison].)
Thus, for purposes of section 654, section 209, subdivision (b)(1) is “the provision that provides for the longest potential term of imprisonment.” Accordingly, rather than the sentence imposed on Count 13, section 654 requires that the sentences imposed on Counts 14, 15 and 16 be stayed.
People v. Latimer (1993) 5 Cal.4th 1203 does not compel a different result. In Latimer, the defendant was charged with raping (§ 261) and kidnapping (§ 207, subd. (a)) the same victim. The Court concluded that section 654 barred execution of the sentence on the kidnapping charge. (Id. at p. 1216.) This case is distinguishable from Latimer. In Latimer, the defendant was charged with kidnapping in violation of section 207, subdivision (a), while, here, defendant was charged with kidnapping in violation of section 209, subdivision (b)(1). As explained above, defendant’s violation of section 209, subdivision (b)(1) carries the longest sentence (life in prison) which must be imposed.
b. Annabella B. (Counts 3 – 6)
Another four of the sixteen counts involved crimes against Annabella B. As to that victim, the jury found defendant guilty of kidnapping to commit another crime—specified as forcible rape and forcible oral copulation—in violation of section 209, subdivision (b)(1) (Count 3), two counts of forcible oral copulation in violation of section 288a, subdivision (c)(2) (Counts 4 and 5), and assault to commit forcible rape and forcible oral copulation during the commission of a first degree burglary in violation of section 220, subdivision (b) (Count 6). The jury also found true the allegations that defendant used a box cutter in committing each of these crimes and, with respect to Counts 4 and 5, defendant kidnapped the victim, which substantially increased the risk of harm to the victim. (§§ 12022.3, subd. (a), and 667.61, subds. (a) and (d).)
On Count 3 (kidnapping Annabella B. with the intent to commit forcible rape and forcible oral copulation), the trial court sentenced defendant to life in prison, plus one year for the use of the box cutter under section 12022, subdivision (b)(1). On Count 4 (forcible oral copulation), the court sentenced defendant to 35 years to life in prison. On Count 5 (forcible oral copulation), the court sentenced defendant to 16 years in prison. And, on Count 6 (assault to commit forcible rape and forcible oral copulation during the commission of a first degree burglary), the court sentenced defendant to life in prison. The court ordered these sentences to run consecutively.
Defendant argues that, under section 654, the trial court should have stayed the life sentence plus one year on Count 3 (kidnapping with the intent to commit forcible rape and forcible oral copulation) as well as the life sentence on Count 6 (assault to commit forcible rape and forcible oral copulation during the commission of a first degree burglary). Defendant claims that, in kidnapping and assaulting Annabella B., he had no other objective than “the sexual assaults actually perpetrated upon Annabella [B.]”—namely, forcible oral copulation. He claims that, because the jury found him guilty of two counts of forcible oral copulation with respect to Annabella B., and the trial court sentenced him separately for those crimes, his sentence on the kidnapping and assault charges must be stayed.
Respondent counters that section 654 does not bar execution of sentences on Counts 3 and 6. Respondent argues the trial court necessarily determined that, in committing those offenses, defendant had objectives separate from oral copulation. With respect to the kidnapping charge (Count 3), respondent argues the trial court impliedly found that defendant also intended to rob Annabella B. and, with respect to the assault charge (Count 6), the trial court impliedly found that defendant also intended to rape Annabella B.
We disagree with both defendant and respondent. We disagree with respondent’s reading of both Count 3 and the jury’s verdict on that count. Count 3 charged defendant with “kidnapping to commit another crime, in violation of Penal Code section 209(b)(1),... [namely,] to commit Forcible Rape and Forcible Oral Copulation” and the jury found defendant guilty of that charge. Contrary to respondent’s position, neither Count 3 nor the jury’s guilty verdict on that count includes an allegation or finding that defendant kidnapped Annabella B. with the intent to rob her.
People v. Ratcliffe (1981) 124 Cal.App.3d 808 does not help respondent. In Ratcliffe, the defendant had been charged with forcible oral copulation in violation of section 288a, subdivision (c), forcible rape in violation of section 261, subdivision (2), false imprisonment in violation of sections 236 and 237, and kidnapping in violation of section 207. (Id. at p. 812.) In contrast with defendant here, the defendant in Ratcliffe was not charged with kidnapping to commit a specified felony in violation of section 209, subdivision (b)(1). Thus, the Ratcliffe court (contrary to the trial court here) could properly infer or imply from the evidence that the defendant kidnapped the victim for reasons other than the separately alleged sex crimes. In contrast, here, Count 3 specifies the felonies (forcible rape and forcible oral copulation) defendant intended to commit by kidnapping Annabella B.
Accordingly, we reject respondent’s position that the trial court impliedly determined that defendant intended to rob Annabella A. Consequently, we also reject respondent’s argument that the sentence on Count 3 need not be stayed because defendant’s supposed intent to rob Annabella B. was separate from his intent to commit oral copulation.
Nonetheless, we conclude section 654 does not require a stay of the sentence imposed on Count 3. The jury found defendant guilty on Count 3 of kidnapping Annabella B. with the intent to commit forcible rape and forcible oral copulation. As to that count, the trial court sentenced defendant to life in prison plus one year for the weapon enhancement. The remaining counts addressing crimes against Annabella also involve defendant’s objective to commit rape, oral copulation, or both—i.e., the same intent and objective as alleged under Count 3. As to the counts involving Annabella, Count 3 carried the longest sentence for defendant—life in prison, plus one year. (§ 209, subd. (b)(1); § 12022, subd. (b)(1).) As noted above, for defendant’s other crimes against Annabella, the trial court sentenced defendant to shorter sentences, namely 35 years to life on Count 4, 16 years on Count 5, and life in prison on Count 6.
Accordingly, we conclude the sentences on Counts 4, 5 and 6 should be stayed under section 654 as they each involve a criminal objective for which defendant has been punished under Count 3.
c. B.M. (Counts 7 – 11)
Five of the sixteen counts involved crimes against B.M. As to that victim, the jury found defendant guilty of committing kidnapping to commit another crime—specified as robbery and forcible oral copulation—in violation of section 209, subdivision (b)(1) (Count 7), second degree robbery in violation of section 211 (Count 8), and three counts of attempted forcible oral copulation in violation of sections 288a, subdivision (c)(2) and 664 (Counts 9, 10 and 11). The jury also found true the allegation that defendant used a box cutter in committing each of these crimes. (§ 12022.3, subd. (a).)
On Count 7 (kidnapping B.M. with the intent to commit robbery and forcible oral copulation), the trial court sentenced defendant to life in prison. On Count 8 (second degree robbery), the court sentenced defendant to 16 months in prison. On Count 9 (attempted forcible oral copulation), the court sentenced defendant to 13 years in prison. And, on each of Counts 10 and 11 (attempted forcible oral copulation), the court sentenced defendant to 28 months in prison. The court ordered these sentences to run consecutively.
The trial court selected Count 9 as the principal term.
Defendant argues that, under section 654, the trial court should have stayed the life sentence on Count 7 (kidnapping with the intent to commit robbery and forcible oral copulation). Defendant claims that, in kidnapping B.M., he had no other objectives than to rob and sexually assault the victim. He claims that, because the jury found him guilty of robbery and three counts of attempted forcible oral copulation with respect to B.M., and the trial court sentenced him separately for those crimes, his sentence on the kidnapping charge must be stayed.
Respondent counters that section 654 does not bar execution of the sentence on Count 7. Respondent argues the trial court necessarily determined that, in committing the Count 7 offense, defendant intended not only to commit oral copulation and to rob the victim, he also intended to rape her.
As with Count 3, we disagree with respondent’s reading of both Count 7 and the jury’s verdict on that count. Count 7 charged defendant with “kidnapping to commit another crime... [namely,] Robbery and Forcible Oral Copulation” and the jury found defendant guilty of that charge. Contrary to respondent’s position, neither Count 7 nor the jury’s guilty verdict on that count includes an allegation or finding that defendant kidnapped B.M. with the intent to rape her. For the same reasons it did not support respondent’s argument with respect to Count 3, People v. Ratcliffe, supra, 124 Cal.App.3d at p. 808, does not support respondent’s argument with respect to Count 7. Thus, as to Count 7, we reject respondent’s position that the trial court impliedly determined that defendant intended to rape B.M. Consequently, we also reject respondent’s argument that the sentence on Count 7 need not be stayed because defendant’s supposed intent to rape B.M. was separate from his intent to commit oral copulation and to rob her.
Nonetheless, we conclude section 654 does not require a stay of the sentence imposed on Count 7. The remaining counts addressing crimes against B.M. involve defendant’s objective to commit oral copulation, to rob the victim, or both—i.e., the same intent and objective as under Count 7. As to those counts, Count 7 carries the longest sentence—life in prison. (§ 209, subd. (b)(1).) The other sections under which defendant was sentenced for his crimes against B.M. provide for shorter sentences. (See §§ 211, 213, and 12022, subd. (b)(1) [second degree robbery punishable by two, three or five years in prison, plus one year for use of the box cutter]; §§ 288a, subd. (c)(2), 664, and 12022.3, subd. (a) [attempted forcible oral copulation punishable by one and a half, three or four years in prison, plus 10 years for use of the box cutter].)
Accordingly, we conclude the trial court erred in not staying execution of the sentences on Counts 8, 9, 10 and 11 as they each involve a criminal objective for which defendant has been punished under Count 7.
Disposition
The case is remanded to the trial court to stay execution of the sentences on Counts 4, 5, 6, 8, 9, 10, 11, 14, 15 and 16. The trial court is directed to amend the abstract of judgment consistent with these changes and to forward the amended abstract to the appropriate authorities. The judgment is otherwise affirmed.
We concur: MALLANO, P. J. JOHNSON, J.