Opinion
F070824
02-08-2017
THE PEOPLE, Plaintiff and Respondent, v. TONY ANTHONY MURILLO, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CM2477)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Tony Anthony Murillo of various sex crimes involving a 14-year-old boy. Relevant to this appeal, the jury found true that appellant administered a controlled substance, marijuana, to the victim in committing the offenses. Using CALCRIM No. 3183, the trial court instructed the jury that appellant had to administer the controlled substance "against the [victim's] will by means of force, violence, or fear of immediate and unlawful bodily injury to that person." As a result of the jury's true findings, consecutive life sentences pursuant to Penal Code section 667.61, subdivisions (b) and (e)(6), were imposed for three counts, and five-year prison enhancements pursuant to section 12022.75, subdivision (b), were added to sentences imposed on four other counts.
All future statutory references are to the Penal Code unless otherwise noted.
It is undisputed that appellant provided the victim with marijuana before the crimes, which the victim voluntarily ingested. Appellant contends the evidence is insufficient to prove he administered the controlled substance against the victim's will, and his due process rights were violated if the government now argues on appeal these elements were not required. He further claims his trial counsel was ineffective in failing to request a pinpoint instruction to consider the victim's voluntary ingestion of marijuana. Respondent asserts these claims fail because the relevant statutes did not require a showing that appellant administered the substance against the victim's will.
We agree with respondent that neither section 667.61, subdivisions (b) and (e)(6), nor section 12022.75, subdivision (b), required appellant to administer the marijuana against the victim's will. As such, this record contains substantial evidence to support the jury's findings and we reject appellant's insufficiency claim. We do not find a violation of due process even though the jury was incorrectly instructed with CALCRIM No. 3183. We find unpersuasive the claim of ineffective assistance of counsel. However, we agree with the parties that certain sentencing errors occurred. Accordingly, we remand for resentencing but otherwise affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
I. Convictions And Sentencing.
The jury convicted appellant of the following nine counts:
(1) Forcible oral copulation of a minor 14 years of age or older (§ 288a, subd. (c)(2)(C));
(2) Oral copulation through use of an intoxicant (§ 288a, subd. (i));
(3) Forcible sodomy with a minor 14 years of age or older (§ 286, subd. (c)(2)(C));
(4) Sodomy through use of an intoxicant (§ 286, subd. (i));
(5) Forcible sexual penetration upon a minor 14 years of age or older (§ 289, subd. (a)(1)(C));
(6) Attempted sexual penetration through use of an intoxicant (§§ 664/289, subd. (e));
(7) Forcible attempted sodomy with a minor 14 years of age or older (§§ 664/286, subd. (c)(2)(C));
(8) Attempted sodomy through the use of an intoxicant (§§ 664/286, subd. (i)); and
(9) Furnishing marijuana to a minor 14 years of age or older (Health & Saf. Code, § 11361, subd. (b)).
For counts 1, 3 and 5, the jury found true that appellant administered a controlled substance to the victim in violation of section 12022.75, thereby violating section 667.61, subdivisions (b) and (e)(6). For counts 2, 4, 6 and 8, the jury found true that appellant administered marijuana during the commission of the offense pursuant to section 12022.75, subdivision (b).
For counts 1, 3 and 5, appellant was sentenced to an aggregated indeterminate prison term of 45 years to life. He also received an aggregated determinate sentence of 18 years four months consisting, in part, of 11 years for count 2 and 16 months for count 9.
II. Prosecution's Case.
A. Appellant's actions with J.R.
On July 2, 2013, J.R., who was 14 years old at the time, visited appellant's residence in Kings County. J.R. had a "slight build" and was approximately five feet two inches tall and weighed 120 pounds. Appellant lived near a river in a three-walled structure that did not have a roof. J.R. went there with his father, Michael R. (Michael), and his father's girlfriend. Michael had known appellant for approximately five years, and he considered appellant a friend. After visiting that day, Michael and his girlfriend left but J.R. stayed behind in order to swim. However, J.R. admitted to the jury he also wanted to drink, smoke marijuana and "get intoxicated." J.R. had "hung out" with appellant in the past wherein they had consumed beer and smoked marijuana together. Nothing inappropriate had ever happened.
After Michael and his girlfriend left, appellant offered J.R. a beer, which he drank. Appellant left for approximately 15 minutes, during which time J.R. drank more than one can of beer, and possibly as many as four. When appellant returned, J.R. was feeling the effects of the alcohol. Appellant gave J.R. marijuana, which they smoked together on a bed inside appellant's residence. J.R. did not feel well after a "couple of hits" so he lay down on the bed. Appellant left his residence for about five minutes.
Appellant returned and pulled J.R.'s gym shorts down to his thighs, exposing his genitals. J.R. felt ill and dizzy. He did not feel like he could move much. Appellant began to rub J.R.'s penis with his hand, and then he orally copulated J.R., who became erect. J.R. told him to stop and leave him alone. Appellant pulled his own pants down, retrieved a bottle of lubricant or lotion, and applied the substance in his anus. Appellant laid on top of J.R. and inserted J.R.'s penis in his anus.
Appellant began to go "in an up and down motion" on top of J.R., who felt violated. J.R. did not have the strength to push appellant off. He told appellant to get off of him and leave him alone. J.R. felt sick and could not move. J.R. could not recall if he ejaculated, but appellant said something like "Pop goes the [weasel]" or "There it goes."
Appellant turned J.R. onto his side and tried to insert his penis inside J.R.'s anus. J.R. tried to roll back over, but it was "very difficult" for him to move. Appellant said it was "just a little dick" and it was "okay." Appellant touched him on his buttocks and put his tongue on J.R.'s anus. J.R. continued to struggle to get on his back and hold up his shorts, but appellant forced him to remain on his side.
At some point, J.R. stood up and told him, "Leave me the fuck alone, or I am going to kill you." J.R. testified he was able to stand up because of "an adrenalin type thing" and he was "fed up with what was going on." J.R. felt angry, violated and sick. Appellant left the residence. A little later, Michael returned to appellant's residence. Michael testified he returned about an hour or two after he left. J.R. told his father that appellant tried to rape him. J.R. needed help to walk. Michael believed that J.R. appeared disoriented and he seemed weak. Michael helped J.R. walk away. As they left, both J.R. and Michael heard appellant say "it was consensual." Michael also heard appellant say, "He was the one that fucked me in the ass."
J.R. rode home with Michael on the back of a motorcycle. Once home, J.R. took a shower. They called law enforcement the following day. J.R. gave the sheriff's department his athletic shorts worn during the incident, and he provided a urine sample. He underwent a sexual assault exam.
On cross-examination, J.R. admitted he did not initially tell law enforcement that he wanted to get intoxicated, and he initially said he did not like to smoke marijuana and he did not want it. He was not initially honest with law enforcement about the amount of beer he had consumed. He lied because he was afraid he would be accused of being "a druggie" and he did not want to be in trouble with his parents. J.R. clarified that he told his father appellant "tried" to rape him because appellant's penis never penetrated his anus.
B. Appellant's statements to law enforcement.
A day after this incident, law enforcement spoke with appellant at his residence. Appellant said J.R. had visited him with Michael and Michael's girlfriend. He claimed that J.R. began to act "gay" and wanted "to do gay things with him." Appellant said J.R. had his penis out, he was "jacking off," and he "was quite intoxicated." Appellant claimed that J.R. passed out and he put J.R. into his bed. Appellant initially denied drinking but then admitted he had drunk and smoked marijuana with J.R. Appellant claimed he had passed out. Law enforcement located and photographed a bottle of lubricant located on the mattress.
Appellant "nodded his head up and down" when asked if he had performed oral sex on J.R. When asked if he gave J.R. a blow job, appellant said "it was possible." Appellant admitted "possibly slobbering" on J.R.'s body, which explained why his DNA would be there. Appellant nodded "yes" when asked if he attempted to insert J.R.'s penis into his rectum. He said it "was possible" his mouth "brushed up against" J.R.'s buttocks. When asked if he had grabbed J.R.'s erect penis, he said "it was possible" and he nodded his head "up and down in a yes motion."
C. Forensic evidence.
A sexual assault examination of J.R. revealed redness around his anus that was painful to the touch, and redness to his left and right buttocks. The redness could have been caused by a lack of hygiene or from scrubbing the skin. An anal scope confirmed a sexual assault had occurred. On cross-examination, the forensic nurse clarified she was not allowed to ask follow-up questions about J.R.'s hygiene in order to avoid leading questions during the exam.
A forensic examination of appellant occurred. There were no findings of any external injuries. Appellant appeared "disheveled" with "visible dirt" on his skin. However, his genital area was clean and shaven.
J.R.'s urine sample tested positive for marijuana. The prosecution's forensic toxicologist opined that J.R. had ingested marijuana four to six days prior to the sample being taken. DNA consistent with appellant's profile was found on the inside and outside of J.R.'s shorts. No sperm cells were found on the samples.
III. Defense Evidence.
A former sheriff's detective interviewed J.R. approximately a year after the incident, at which time J.R. provided new information. For the first time, J.R. said a friend of the family, Rick, arrived during the incident. Rick is hearing impaired and J.R. tried to flag him down, but Rick did not respond. J.R. said Rick was there about 30 minutes before his father arrived. J.R. believed he heard appellant say, "Hey, what is up[,] Rick," when Rick drove up. During his trial cross-examination, J.R. clarified that Rick was not there during the sex crimes, but arrived approximately 20 minutes after they occurred.
The defense introduced into evidence a transcript of appellant's interview with law enforcement.
DISCUSSION
I. Sufficient Evidence Supports The Jury's True Findings In Counts 1, 3 and 5, And The Enhancements Attached To Counts 2, 4, 6 And 8.
Appellant argues the evidence is insufficient to prove he provided an intoxicant to J.R. by means of force, violence or fear of immediate bodily injury, or for the purposes of lowering his resistance. He contends the life sentences, and the five-year enhancements attached to counts 2, 4, 6, and 8, must be reversed.
A. Background.
Pursuant to CALCRIM No. 3183, the court instructed the jury that if they found appellant guilty of the crimes charged in counts 1, 2, 3, 4, 5, and 6, they had to decide whether the prosecution proved the allegation he administered a controlled substance to J.R. during the commission of those crimes. To prove these allegations, it was required that (1) in the commission of each crime appellant administered marijuana to J.R.; (2) he administered the marijuana "against [J.R.'s] will by means of force, violence, or fear of immediate and unlawful bodily injury to [him]"; and (3) appellant did so "for the purpose of committing" the enumerated charges, including any lesser included offenses in counts 1, 3 and 5. The jury was told a substance is administered if, in part, the person "causes the other person to inhale, ingest, or otherwise consume the substance." The prosecution had the burden to prove each allegation beyond a reasonable doubt. (Italics added.)
It appears the court should have, but failed, to include count 8 in the instructions above. For counts 2, 4, 6 and 8, the jury found true that appellant administered marijuana during the commission of the offense pursuant to section 12022.75, subdivision (b). Accordingly, we include count 8 in our discussion below.
B. Standard of review.
For an appeal challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on "'evidence that is reasonable, credible, and of solid value ....'" (People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. (Ibid.)
C. Analysis.
Appellant argues J.R. voluntarily became intoxicated. As such, he contends no evidence shows he administered marijuana against J.R.'s will, did so for the purpose of committing the sex acts, or did so with an intent to lower J.R.'s resistance.
Respondent asserts neither section 667.61, subdivision (e)(6), nor section 12022.75, subdivision (b), requires a showing of administration of an intoxicant by force and neither requires a showing of any specific intent. Respondent contends these elements were never necessary for the imposition of the enhanced sentences, overcoming appellant's insufficiency claim.
We agree with respondent that the prosecution was not required to prove these disputed elements.
1. Administering marijuana against J.R.'s will was not required under section 12022.75 , subdivision (b).
In interpreting statutes, we are to begin with the plain language of the statute, giving words their ordinary and usual meaning. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) "The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]" (Ibid.)
Section 12022.75, subdivision (a), makes it illegal for a person, for the purpose of committing a felony, to administer certain controlled substances "against the victim's will by means of force, violence, or fear of immediate and unlawful bodily injury to the victim or another person ...." Such a person shall be punished by an additional three-year term consecutive to the penalty provided for the conviction of the felony or attempted felony. (§ 12022.75, subd. (a).)
In contrast, section 12022.75, subdivision (b), imposes an additional and consecutive five-year prison term for any person who "administers" the same controlled substances during the commission or attempted commission of certain sex crimes, including rape, sodomy, oral copulation, and sexual penetration. (§ 12022.75, subd. (b)(1) & (2)(A)-(E).) A plain reading of section 12022.75 establishes that the requirement of a controlled substance being administered "against the victim's will" only appears in section 12022.75, subdivision (a), and not in subdivision (b).
Here, for counts 2, 4, 6 and 8, the jury found true that appellant administered marijuana during the commission of the offense pursuant to section 12022.75, subdivision (b). It is undisputed that marijuana is a controlled substance which triggers application of section 12022.75. (§ 12022.75, subds. (a) & (b); Health & Saf. Code, § 11054, subd. (d)(13).) Accordingly, because the jury's true finding occurred under subdivision (b), the prosecution was not required to prove appellant administered the marijuana against J.R.'s will, only that it was done in the commission of an enumerated sex offense.
2. Administering the marijuana against J.R.'s will was not required for section 667.61 , subdivisions (b) and (e)(6).
Section 667.61 is known as "the One Strike law" and the Legislature adopted it approximately six months after enactment of the Three Strikes law. (People v. Mancebo (2002) 27 Cal.4th 735, 741.) Section 667.61 provides long prison sentences to serious sex offenders regardless of whether they have prior criminal convictions. (People v. Luna (2012) 209 Cal.App.4th 460, 465.) Under certain circumstances not relevant to the present discussion, a prison term of 25 years to life can be imposed for commission of certain sex crimes. (§ 667.61, subd. (a).)
As is relevant here, a prison term of 15 years to life is imposed when a person is convicted of sexual penetration, sodomy, and/or oral copulation (among others), and at least one specific circumstance occurred. (§ 667.61, subds. (b), (c)(5)-(7).) One of those circumstances is when the defendant "administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75." (§ 667.61, subd. (e)(6).) A plain reading of section 667.61, subdivision (e)(6), establishes that it is not necessary for the defendant to administer the controlled substance against the victim's will so long as it is done in the commission of an enumerated sex crime.
Here, for counts 1, 3 and 5, the jury found true that appellant administered a controlled substance to J.R. in violation of section 12022.75, thereby violating section 667.61, subdivisions (b) and (e)(6). Because of these true findings, indeterminate terms of 15 years to life were imposed in counts 1, 3 and 5. As discussed above, the jury found true that appellant violated section 12022.75, subdivision (b). Accordingly, the indeterminate sentences imposed in this matter were not dependent on appellant administering the marijuana against J.R.'s will.
The jury heard evidence that appellant provided J.R. with beer and marijuana, which caused J.R. to become ill and lie down. While J.R. was in that condition, appellant orally copulated J.R., put J.R.'s penis in his anus, and licked J.R.'s anus. This evidence was reasonable, credible, and of solid value.
Based on this record, sufficient evidence supports the jury's findings that appellant violated section 12022.75, subdivision (b), and section 667.61, subdivisions (b) and (e)(6). A rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. Accordingly, appellant's insufficiency claim fails.
3. Instructional error occurred with CALCRIM No. 3183.
Before 2006, section 667.61 required the defendant to administer "a controlled substance to the victim by force, violence, or fear in the commission of the present offense in violation of Section 12022.75." (Former § 667.61, subd. (e)(7).) The requirement of "force, violence, or fear" was eliminated in this subdivision in 2006 in the Sex Offender Punishment, Control, and Containment Act of 2006 (the 2006 Act), which became effective September 20, 2006. (Former § 667.61, subd. (e)(7), amended by Stats. 2006, ch. 337, § 33, p. 2164.) In 2010, this subdivision was renumbered to its current location. (Former § 667.61, subd. (e)(6).)
Likewise, before 2006, section 12022.75 required the defendant to administer a controlled substance "against the victim's will by means of force, violence, or fear of immediate and unlawful bodily injury ...." (Former § 12022.75.) Section 12022.75 was rewritten as part of the 2006 Act and, since September 2006, subdivision (b) does not require administration of a controlled substance against the victim's will. (Former § 12022.75, subd. (b), amended by Stats. 2006, ch. 337, § 49, p. 2177.)
CALCRIM No. 3183, which the trial court used to instruct the jury, is titled "Sex Offenses: Sentencing Factors—Administered Controlled Substance (Pen. Code, § 667.61(e)(6))[.]" CALCRIM lists this instruction as "New" in "January 2006" and no revisions are noted. This instruction expresses the elements necessary to prove the former requirements under section 667.61. However, when these charged crimes occurred, neither section 667.61, subdivision (e)(6), nor section 12022.75, subdivision (b), required a showing that a person administered the controlled substance against the victim's will. CALCRIM No. 3183 does not accurately reflect the changes in the law. Accordingly, instructional error occurred with CALCRIM No. 3183 regarding counts 1, 3 and 5, and the enhancements attached to counts 2, 4, 6 and 8.
We note that CALJIC does not provide a form instruction for section 667.61, let alone for subdivision (e)(6).
4. The error was not prejudicial.
The parties dispute whether appellant suffered prejudice. Respondent contends the erroneous jury instructions did not violate due process as they contained superfluous elements that only increased the government's burden of proof. In contrast, appellant argues these elements were litigated and affected all aspects of his trial, "possibly from potential plea negotiation stages" through trial strategy, presentation of evidence, closing arguments, and jury instructions. He asserts these elements became "the law of the case." He maintains the entire trial was predicated on these elements, which the state now claims were nonexistent. As such, appellant claims the government has undermined his Fourteenth Amendment liberty interest, due process, his ability to make informed decisions and his ability to mount an adequate defense.
We find respondent's argument persuasive and reject appellant's claims. Our high court has held that "'the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' [Citation.]" (Henderson v. Kibbe (1977) 431 U.S. 145, 153.) "Due process assures a criminal defendant a fundamentally fair trial." (People v. Castro (1985) 38 Cal.3d 301, 331.) "As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." (Lisenba v. California (1941) 314 U.S. 219, 236.) The general function of the legal process is to minimize the risk of erroneous decisions. The amount and quality of the process due in a particular situation depends upon the need to serve the purpose of minimizing the risk of error. (People v. Castro, supra, 38 Cal.3d at p. 331.)
"Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun (2009) 45 Cal.4th 1172, 1201.) Likewise, the failure to instruct properly on a sentence enhancement is also subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) when the enhancement increases the penalty for the charged crime. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320.) Under Chapman, we ask whether it is beyond a reasonable doubt the beneficiary of the error proved that the error did not contribute to the jury's verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.) "Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (Ibid.) The issue is whether the verdict rendered "'was surely unattributable to the error.' [Citation.]" (Ibid.)
Here, this record does not establish that appellant received a fundamentally unfair trial. The jury's true findings were made upon proof beyond a reasonable doubt of every fact necessary to constitute the charged allegations. We cannot say that an erroneous decision occurred. We agree with respondent that the instructional error only increased the prosecution's burden of proof and made it harder for appellant to receive the enhanced sentences under sections 667.61 and 12022.75. Based on this record, it is beyond a reasonable doubt the error did not contribute to the verdict. Accordingly, we reject appellant's contentions of prejudicial error or a failure of due process.
Finally, we reject appellant's suggestion that the trial court's erroneous jury instruction became law of the case. This doctrine dictates that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." (Arizona v. California (1983) 460 U.S. 605, 618.) This doctrine does not limit a court's power, but expresses the practice to generally refuse to reopen what has been decided. (Musacchio v. United States (2016) 577 U.S. ___ [136 S.Ct. 709, 716].) "Thus, the doctrine may describe an appellate court's decision not to depart from a ruling that it made in a prior appeal in the same case. [Citation.]" (Ibid.)
Here, the trial court did not issue a ruling which now binds the parties under a particular rule of law. To the contrary, the trial court misstated the applicable law during jury instructions. It is beyond a reasonable doubt this error was not prejudicial. Accordingly, appellant's claim fails.
II. This Record Does Not Demonstrate Ineffective Assistance Of Counsel.
Appellant contends he was denied the constitutionally guaranteed right to effective assistance of counsel. He asserts his trial attorney failed to request a pinpoint instruction regarding J.R.'s voluntary ingestion of intoxicants. He argues the allegations involving section 12022.75 must be reversed.
A. Background.
1. Defense counsel's closing arguments.
During closing arguments, defense counsel argued that "force and violence" were not present. He noted this was possibly a consensual encounter. Defense counsel contended no penetration occurred and licking the anus was not enough for that element.
Defense counsel focused on J.R.'s inconsistent statements, contending J.R. was not as intoxicated as he claimed. J.R. initially told law enforcement he did not want marijuana and did not consume as much beer. It was subsequently learned he went to appellant's location in order to drink and smoke marijuana. Despite a claim of being severely intoxicated, J.R. supposedly jumped up and yelled at appellant to stop, and he rode home on the back of a motorcycle. Defense counsel asserted that J.R. lied to avoid trouble with his mother, and he lied about the crimes occurring.
Defense counsel noted that J.R. did not initially mention Rick's involvement, and law enforcement never followed up to interview that person. It was possible Rick could shed light on what happened. J.R.'s story did not make sense. He rode home on the back of his father's motorcycle despite being severely incapacitated. J.R.'s father testified he did not believe J.R. appeared intoxicated, only stressed, and police were not immediately called.
Defense counsel asserted that J.R. lied about ejaculating because no sperm cells were discovered. Defense counsel argued the scientific evidence did not support J.R.'s version of events. It was also suggested J.R. was not scared because he became sexually aroused during the incident.
Defense counsel asked the jury to read the transcript of appellant's interview with law enforcement. He asserted appellant did not confess, but law enforcement lied, bullied and harassed him.
It was noted no injuries were found on J.R. during the forensic exam. The rash and redness found on J.R. could have come from poor hygiene, which was something the forensic nurse was prohibited from asking. The exam did not substantiate J.R.'s claims.
Defense counsel reminded the jurors they could disregard a witness's testimony if they believed that witness lied. It was argued there were too many problems with this case, and a not guilty verdict was required.
B. Standard of review.
A claim of ineffective assistance of counsel is normally raised on a writ of habeas corpus. (People v. Snow (2003) 30 Cal.4th 43, 111.) In such a writ, relevant facts and circumstances can be explored which are not reflected in the record on appeal, such as why counsel did not pursue a particular trial strategy. (Ibid.) To resolve appellant's challenge, two questions are asked: (1) whether counsel's representation was not reasonable based on an objective standard and (2) whether there is a reasonable probability the result of the proceeding would have been different in the absence of counsel's errors. (Ibid.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors (1998) 18 Cal.4th 385, 403.) In order to prevail on a claim of ineffective assistance of counsel on direct appeal, the record must affirmatively show the lack of a rational tactical purpose for the challenged act or omission. (Ibid.)
C. Analysis.
Appellant argues his defense counsel erred by failing to request a pinpoint instruction that J.R.'s voluntary ingestion of marijuana and alcohol could have been considered in determining if intoxicants were administered against his will. He asserts a petition for writ of habeas corpus is not required, claiming there is "no satisfactory explanation for counsel's failure" to request the pinpoint instruction. We find appellant's contentions to be without merit.
Defense counsel argued J.R. lied about the incident, contending J.R. was not as intoxicated as he claimed and the evidence did not support J.R.'s version of events. The jury was asked to reject J.R.'s testimony. Defense counsel took the position that any sexual contact was consensual. Based on this record, defense counsel employed a rational tactical approach. We cannot say that the failure to request the disputed pinpoint instruction was devoid of any tactical reasoning. A writ of habeas corpus, and not this direct appeal, is the appropriate mechanism to raise this claim.
Further, based on the verdicts rendered, it is apparent the jury found J.R.'s testimony credible. Based on this record, it is not reasonably probable a different result would have occurred had the suggested pinpoint instruction been given. Confidence in the outcome of this trial is not undermined. Accordingly, we reject appellant's claim that this record establishes ineffective assistance of counsel.
III. The Sentence On Count 2 Must Be Stayed.
The parties agree, as do we, that the sentence for count 2 should be stayed pursuant to section 654. Section 654 bars multiple punishments for the same criminal act or omission. (People v. Correa (2012) 54 Cal.4th 331, 337.) The longest potential term of imprisonment shall be imposed when an act or omission is punishable in different ways. (§ 654, subd. (a).)
Here, appellant engaged in a single act of oral copulation of J.R., but was convicted of two counts of oral copulation. Count 1 was oral copulation of a minor 14 years of age or older by means of force or fear (§ 288a, subd. (c)(2)(C)). Count 2 was oral copulation through use of an intoxicant (§ 288a, subd. (i)). Appellant was sentenced to 15 years to life for count 1 and 11 years for count 2. Section 654 requires staying the lesser of the two sentences. Accordingly, count 2 is ordered stayed.
IV. Sentence For Count 9 Is Stricken.
Pursuant to section 667.61, appellant was sentenced to terms of 15 years to life in counts 1, 3 and 5 for administering marijuana to J.R. Section 667.61 bars using the same circumstances to impose punishment under both section 667.61 and any other provision of law, unless another provision of law provides for a greater penalty or can be imposed in addition to the punishment imposed by section 667.61. (§ 667.61, subd. (f).)
For count 9, appellant was convicted of violating Health & Safety Code section 11361, subdivision (b), which imposes a prison term of three, four or five years for a person who "furnishes, administers, or gives" any marijuana to a minor 14 years of age or older. The parties agree, as do we, that the trial court erred by imposing a 16-month consecutive term for count 9. We agree with the parties that this sentence must be stricken and not merely stayed.
Administering marijuana to J.R. cannot be used both to impose punishment pursuant to section 667.61 and Health and Safety Code section 11361, subdivision (b). (§ 667.61, subd. (f).) The proper remedy is to strike the sentence on count 9. (See People v. Mancebo, supra, 27 Cal.4th at p. 754 [affirming the striking of gun-use enhancements after those circumstances were used to impose sentence pursuant to section 667.61].) Accordingly, sentence on count 9 is stricken.
DISPOSITION
The sentence in the determinate abstract of judgment is vacated and the matter is remanded to the trial court for resentencing. At resentencing, the trial court shall stay sentence on count 2 pursuant to section 654. Sentence on count 9 shall be stricken. The trial court shall prepare an amended determinate abstract of judgment and forward it to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
KANE, J. /s/_________
POOCHIGIAN, J.