Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 156534
SIMONS, J.
Defendant Darren Derae Sasser (appellant) appeals his October 13, 2009 conviction by jury trial of the following offenses against Jane Doe 1 (JD1): forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)) (count 2), sodomy by use of force (§ 286, subd. (c)(2)) (count 5), and three counts of forcible rape (§ 261, subd. (a)(2)) (counts 6, 7 & 8); and the following offenses against Jane Doe 2 (JD2): two counts of forcible oral copulation (counts 10 & 15), two counts of sodomy by use of force (counts 11 & 17), and two counts of forcible rape (counts 13 & 16). As to counts 10, 11, 13, 15, 16, and 17 involving offenses against JD2, the jury found true a firearm use enhancement (§§ 667.61, subd. (e)(4), 12022, subd. (b), 12022.3, 12022.5, 12022.53, subd. (b)). As to counts 2, 5, 6, 7 and 8 involving offenses against JD1, the jury found true the deadly weapon use enhancement (§§ 667.61, subd. (e)(4), 12022, subd. (b), 12022.3). As to the counts involving offenses against both JD1 and JD2, the jury found true the multiple victim special circumstance allegations under the “One Strike” law (§ 667.61, subd. (c)) and the special circumstance allegations under Jessica’s law that the offenses were one of several/many “involv[ing] the same victim on separate occasions.” (§ 667.6, subd. (d).) Appellant was sentenced to 458 years four months to life in state prison. He raises numerous claims of error on appeal. We conclude the court erred in failing to instruct the jury as to attempted sodomy and committed sentencing error. We reverse the sodomy counts against JD2 (counts 11 & 17) and remand for resentencing.
All undesignated section references are to the Penal Code.
Appellant was found not guilty of first degree robbery (§ 211) (count 1) and the court granted his section 1118.1 motion for judgment of acquittal as to two counts of forcible oral copulation (counts 3 & 4), false imprisonment by violence (§ 236) (count 9), sodomy by use of force (count 12), forcible rape (count 14), and the kidnap allegations in counts 2 through 8.
Jessica’s law was enacted by an initiative, The Sexual Predator Punishment and Control Act, whose stated intent is “to strengthen and improve the laws that punish and control sexual offenders.” (Prop. 83, § 31, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Section 667.6 was one of two dozen statutes amended or added by the initiative.
On the first day of trial, appellant admitted the habitual sexual offender law allegations (§ 667.71) in counts 2 through 8, and 10 through 17; a prior conviction for a lewd act on a child (§ 288, subd. (a)) as a predicate for the habitual sexual offender law and as a prior strike under the “Three Strikes” law (§§ 667, subd. (e)(1), 1170.12); and a prior prison term (§ 667.5, subd. (b)) following his conviction for assault with a deadly weapon (§ 245, subd. (a)(2)).
BACKGROUND
JD1 Offenses
In November 2005, JD1 lived in an apartment on Courtland Avenue in Oakland with her two minor sons and her friend, Adelia De La Cruz. At about 9:30 a.m. on the morning of November 9, De La Cruz heard a knock at the front door. She looked through the screen door and saw a man wearing blue jeans and a white T-shirt. The man said he was from Comcast and asked if there was a computer in the apartment. When De La Cruz said, “No, ” the man left and went to the door of a neighbor’s apartment. A few minutes later, De La Cruz heard noises and saw the same man trying to open the back door. Five minutes later the man again knocked on JD1’s apartment door and asked De La Cruz for the laundry room key and asked where the apartment complex’s laundry room was located. He asked De La Cruz to accompany him to the laundry room, but she declined. De La Cruz was “kind of suspicious.” She left the apartment around 10:30 a.m. Because she was in a rush, De La Cruz did not tell JD1, who was asleep, about the suspicious man.
After De La Cruz left the apartment, JD1, who was in her bedroom, heard noises coming from outside. She went to the front door and saw a man, later identified as appellant, standing outside her apartment. When she asked him what he was doing he said he was from Comcast and replacing the corroded wiring. When appellant asked her for keys to the laundry room she complied. He took the keys and walked toward the laundry room. Appellant returned a couple of minutes later saying he wanted to return the keys. From inside the apartment JD1 told him to put the keys on the table outside the apartment door.
When JD1 walked to the front door and opened the gate to get the keys, appellant forced himself inside her apartment. He held a sharp object to her neck and physically directed her into the kitchen. Inside the kitchen he grabbed a knife from a drawer, held it to JD1’s neck and took her into her bedroom. There, appellant said, “Bitch, give me your money.” When she said she had none, he asked for her jewelry. After she said the two necklaces on her neck were all she had, he ripped them off her neck. He then pushed her onto the bed face down, unbuckled his pants, and, despite her protests, pulled her off the bed onto her knees and forced her to orally copulate him.
Appellant then forced JD1 into the living room where he raped her multiple times. In between some of the rapes, he forced her into a closet with her nine-month-old son while he looked through her other closets. Appellant would then drag JD1 out of the closet by her hair and sexually assault her in the living room. On one occasion appellant forcibly sodomized her. During each act appellant held the knife in his hand. During the two hours he was inside JD1’s apartment, he smoked “crack” and tried to force her to smoke it. He also demanded that she take off her clothes and lie on the floor with her hands on her buttocks while he masturbated.
Appellant then wrapped wire around the necks of JD1 and her son and tied them together on the bed. She thought appellant was going to kill her and her son. Appellant stood in the bedroom doorway and then eventually left the apartment.
JD1 untied herself, retrieved the knife from the living room couch and returned it to the kitchen drawer. She then asked a neighbor to call the police. According to the neighbor, JD1 was wrapped in a blanket, her hair was “all over, ” she was crying, and she said she had been raped. JD1 also said her assailant had put a knife to her neck and sodomized her.
The police arrived and JD1 was transported to the hospital where she was interviewed and examined by a sexual assault response team (SART) practitioner. She told the practitioner she had been raped, sodomized and forced to orally copulate her assailant multiple times. The physical exam findings were consistent with JD1’s report of what occurred.
The next day, JD1 noticed that DVD players, some money and a cell phone were missing from her apartment. When she called her cell phone number, a man answered; JD1 recognized the voice as belonging to appellant.
When JD1 was initially shown a photo lineup she identified someone other than appellant as her assailant; however, that person’s DNA did not match that on the DNA swab taken from her. Subsequently, appellant’s name came up as a result of a computer database DNA match. A DNA expert testified that the match between appellant’s DNA and the DNA swab taken from JD1 occurred in one in 113 billion DNA profiles. In January 2006, JD1 was shown a photo lineup containing appellant’s photo and identified him as her assailant.
According to a Comcast Cable representative, no Comcast jobs were scheduled or completed at JD1’s address on the day of the assault.
JD2 Offenses
On the evening of November 17, 2005, JD2 drove her van to the area of East 20th Street and and 23d Avenue in Oakland to buy crack cocaine. When JD2 parked and told “Moe” she wanted to purchase crack, he directed her to appellant. Appellant got into the front passenger seat of JD2’s van, gave her crack cocaine in exchange for $10 and asked her for a ride to the area of East 27th and Wallace Streets to meet his partner. She agreed. Appellant directed her to stop the van at a specific location; while he remained in the van, she told him she was going to go to the casino in Richmond. He then asked her to move her van a little farther down the street so his partner’s mom would not get upset.
After JD2 moved the van to 2600 Wallace Street, appellant turned toward her and said, “Bitch, you finna... suck my dick.” He then locked the van’s automatic door lock and took a silver pistol from “out his back.” At trial, JD2 said, “I really didn’t see him take it. It hit the floor.” Because she thought appellant was going to hurt her, she complied with his demand to orally copulate him. He then grabbed her, pushed her into the van’s second row of seats, directed her to pull down her pants and raped her. At that point she did not know where the gun was and did not see it again. Appellant kept telling her to put her hands up where he could see them. He then demanded that she “hold [her] ass cheeks” and “hold [her] ass open” and successfully “tried to stick his penis in [her] rectum.” She did not know how long his penis was inside her anus. Appellant then again forced JD2 to orally copulate him. He repeated the acts “over and over again.” JD2 never hit him or tried to push him off of her because she knew he had the gun.
On cross-examination, JD2 said she “saw [the gun] when he took [it] from behind him, and it hit the floorboard.” Appellant then picked it up and put it “back on his person.”
Appellant then drove JD2’s van, with JD2 in the second row of seats, to the Embarcadero. En route, he told her she was lucky that he did not have “all his partners come and have sex with [her].” Appellant parked the van in a secluded construction area and he and JD2 then smoked some crack. He then directed her to orally copulate him. She complied because she knew he had a gun “and it was a possibility that [she] could die.” Appellant then raped and sodomized her again.
Appellant then began driving the van; JD2 moved into the front passenger seat. She unsuccessfully attempted to jump out of the van at Lakeshore. Appellant told her if she did that again he would “kill [her] ass.” When they stopped at a traffic light, she jumped out of the van. Appellant then gunned the engine and drove off onto the freeway. JD2 walked to a nearby gas station where she unsuccessfully sought help. She then walked to the hospital.
At the hospital, JD2 was examined by SART practitioner Hillary Larkin. Larkin opined that her examination was consistent with the history given by JD2. The oral and vaginal swabs taken from JD2 matched appellant’s DNA. Thereafter, JD2 was shown a photo lineup and identified appellant as her assailant.
The Defense
Testifying in his own defense, appellant said he met JD1 outside the “Wellness Center” at an Oakland mall and they exchanged phone numbers. She later called and invited him to come to her apartment for breakfast the following morning. The next morning appellant went to JD1’s apartment and they had consensual sex. He got up to leave and turned his head when she tried to kiss him on the mouth. After he left, she slammed the door.
Appellant denied ever having sexual contact with JD2. He said he first met her four to six months prior to the night of the charged incident, when she asked to purchase drugs from him. Between then and the charged incident, JD2 met appellant on about 30 occasions to purchase drugs. On the night of the charged incident, JD2 offered appellant sex in exchange for drugs; appellant refused. Appellant offered to give her drugs in exchange for the use of her van for two days and she agreed. He admitted a 1991 conviction for molestation (§ 288, subd. (a)) and a prior conviction for assault with a deadly weapon, i.e., a bat.
On cross-examination, appellant said he had no explanation for his DNA match with the swabs obtained from JD2.
DISCUSSION
I. Violation of Boykin/Tahl/Yurko Rights
For the first time on appeal, appellant contends the pretrial admission of his prior convictions violated his Boykin/Tahl/Yurko rights because he was not advised regarding his constitutional rights to confrontation and self-incrimination. The People concede the court’s pretrial admonition was incomplete, but assert appellant’s admission was nevertheless knowing and voluntary. Alternatively, they argue that any error was harmless.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl); In re Yurko (1974) 10 Cal.3d 857 (Yurko).
The People concede that appellant’s failure to move to withdraw his admission or challenge the adequacy of the court’s pretrial admonition below does not constitute a waiver of his claim on appeal.
At a September 15, 2009 pretrial hearing, the following colloquy occurred:
“THE COURT: Mr. Sasser, I spoke with counsel, your lawyer, and [the prosecutor] regarding your matter and this information that they filed against you, which is a total of 37 pages. It carries a number of clauses that have an impact on, I think, the way your lawyer will proceed in the trial as well as the District Attorney, including in each of the counts – well, including that there are 17 counts alleged, and in some of those counts there are clauses which the DA, as a matter of law, would have to prove in front of this jury, to that extent, and you would have a right to a jury trial on those clauses. [¶] One of those clauses is the habitual sexual offender clause as well, which is a special allegation, and the conviction of a prior sexual offense, which is also another allegation clause within the information. [¶] With that, because it’s the DA’s responsibility, in those clauses, in fact, you have the allegations in them are that you, in fact, have been committed on a prior offense, which is a lewd act upon a child. I have excluded the DA from using or bringing in that information against you in their case-in-chief to the extent that you don’t testify. If you testify, obviously he may be able to impeach you with them. If, in fact, the DA – as a matter of law, the DA would have to prove these particular clauses, and that is a way that they could get around the issue of me not allowing them to bring that information in before this Court. [¶] I’ve talked to your counsel. And he’s indicating, based upon our discussion, that you’re prepared to admit these clauses. And the only impact these clauses have is if, in fact, you get convicted. If you don’t get convicted, they’re set aside. They are only admissions of clauses which prevents the DA from bringing them up in his case-in-chief. [¶] So you understand that?
“THE DEFENDANT: Case-in-chief. So if I take the stand – permission to address the Court.
“THE COURT: Case-in-chief, the DA has to prove their case against you.
“THE DEFENDANT: Right.
“THE COURT: You have an election whether or not you want to take the stand or not in your defense. Their case, if you admit these clauses subject to a motion to strike if you’re not convicted, they can’t say any of the information in the clauses. They don’t get to bring in the documents and say, you know, [w]e have to prove this clause, and guess what, this clause shows he’s been convicted of a lewd act upon a child. So they would get to know indirectly that, in fact, you suffered that conviction. By your admission of these clauses, they don’t get to bring that up unless you testify. If you don’t testify, they don’t get to bring that information into this court unless for some other way the lawyers screw up and it gets admitted, but I doubt that’s going to happen with [defense counsel]. So that’s the purpose.
“THE DEFENDANT:... Now when I take the stand, can they bring these clauses up then?
“THE COURT: If you take the stand, they’ll be able to impeach you possibly with your prior conviction, not the clauses themselves. That’s a whole other issue. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand you have a right to have a jury trial on the clauses alleged, the habitual offenders clause under 667.71 and also the prior conviction of a sexual offense under 667.61, subsection C?
“THE DEFENDANT: Yes.
“THE COURT: Do you understand you have a right to have a jury trial on all those clauses?
“THE DEFENDANT: Yes, sir.
“THE COURT: And do you give up that right and are you prepared to admit those clauses for the purposes of these proceedings subject to a motion to strike? If you are acquitted, they’d have no force and effect.
“THE DEFENDANT: Yes, sir.”
Thereafter, appellant admitted that, as it related to the habitual sexual offender law (§ 667.71) allegations in counts 2 through 8, and 10 though 17, he was previously convicted in August 1991 of a lewd act upon a child. Appellant also admitted that, as related to the prior sex offense allegations (§ 667.6, subd. (c)) in counts 2 through 8, he was previously convicted of a sex offense. Appellant also admitted that his August 1991 conviction of a lewd act upon a child was a prior strike (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). Appellant next admitted that, as to his May 1994 conviction for assault with a deadly weapon, he served a prior prison term (§ 667.5, subd. (b)).
The parties agree that appellant was advised of his right to jury trial on the prior conviction allegations, but that the court did not mention or advise him of his Boykin-Tahl Fifth and Sixth Amendment rights regarding cross-examination and self-incrimination.
Before a court accepts a defendant’s admission of a prior felony conviction, the defendant must be advised of, and waive, three constitutional rights, his Boykin-Tahl rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. (Yurko, supra, 10 Cal.3d at p. 863 & fn. 5; People v. Mosby (2004) 33 Cal.4th 353, 359-360 (Mosby).) Additionally, the trial court should also tell the defendant “the effect which a determination of habitual criminality will have on the punishment and other sanctions to be imposed upon the accused’s conviction of the substantive crime charged.” (Yurko, at p. 864.)
“The record must clearly reflect both the admonitions given the accused and the fact of the accused’s waivers, if any.” (Yurko, supra, 10 Cal.3d at p. 865.) If the record does not reveal the complete advisements and waivers, the reviewing court examines the record of the entire proceedings to assess whether the admission was intelligent and voluntary in light of the totality of the circumstances. (Mosby, supra, 33 Cal.4th at pp. 360-361; People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard).) “The focus is not on whether [the allegations] would have been found true, but on whether the defendant knew of his constitutional rights. [Citation.]” (People v. Stills (1994) 29 Cal.App.4th 1766, 1770.)
“[S]ilent-record cases are those that show no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction. [Citations.]” (Mosby, supra, 33 Cal.4th at pp. 361-362.) Where the defendant was not advised of the right to have a trial on an alleged prior conviction, it cannot be inferred that in admitting the prior the defendant knowingly and intelligently waived that right as well as the rights to silence and to confront witnesses. (Id. at p. 362.) Here, appellant was advised of his right to a jury trial; the admonitions were simply incomplete. Thus, this is not a silent-record case.
In Mosby, immediately after the jury found the defendant guilty of selling cocaine, he was advised that he had a right to a jury trial on a prior conviction allegation. (Mosby, supra, 33 Cal.4th at p. 364.) The alleged prior conviction was a plea of guilty to possessing cocaine. (Ibid.) The defendant waived his right to a jury trial and admitted the truth of the allegation. He was not advised of his other two constitutional rights. (Id. at pp. 357-358, 364.) The Supreme Court held that the totality of the circumstances supported a finding that the defendant voluntarily and intelligently admitted his prior conviction despite being advised only of his right to jury trial. (Id. at p. 365.) The court considered the fact that the defendant had just undergone a jury trial at which he did not testify, but his codefendant did, indicating the defendant understood he had the right to remain silent at trial and the right of confrontation. (Id. at p. 364.) The court also considered that the defendant’s prior experience with the criminal justice system was relevant to his “ ‘ “knowledge and sophistication regarding his [legal] rights.” ’ [Citations.]” (Id. at p. 365, fn. omitted.) In particular, the court noted that the defendant’s prior conviction was based on a guilty plea, at which he would have received Boykin-Tahl advisements. Thus, the defendant “ ‘had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.’ ” (Ibid.)
Here, unlike Mosby, appellant had not already participated at a trial on the charged offenses before he admitted the prior conviction allegations. However, appellant had significant experience in the criminal justice system as evidenced by his criminal record. In 1999, 2004 and 2007, appellant executed waiver of rights/plea forms, pursuant to pleading no contest, which advised him of his rights to jury trial, to confront witnesses and to remain silent. The 2007 plea was approximately two years prior to trial in the instant case. In addition, the record establishes that in 1994, appellant participated in a jury trial where he had the opportunity to confront witnesses and chose to testify rather than remain silent. We conclude that under the totality of the circumstances, appellant knew of his constitutional rights and voluntarily and intelligently waived them when he admitted his prior convictions.
We grant the People’s February 24, 2011 request that we take judicial notice of the following documents:
In a related argument, appellant contends the court failed to advise him regarding the penalty that would result from his admission of the prior convictions. A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. (Yurko, supra, 10 Cal.3d at p. 864; People v. Karis (1988) 46 Cal.3d 612, 650.) However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. (Yurko, at p. 864; People v. Wright (1987) 43 Cal.3d 487, 494-495, disapproved on another ground in Howard, supra, 1 Cal.4th at pp. 1174-1178; People v. Walker (1991) 54 Cal.3d 1013, 1022 (Walker).) Thus, any error in failing to advise a defendant of the penal consequences of a plea or admission is waived if not raised at or before sentencing. (Walker, at p. 1023, People v. Wrice (1995) 38 Cal.App.4th 767, 770-771 (Wrice).) Additionally, in order to invalidate a plea or admission based on the failure to advise of the penal consequences, a defendant must demonstrate that it is reasonably probable he would not have entered the plea or admission had he been properly advised of its consequences. (Walker, at pp. 1022-1023; Wrice, at p. 771.)
In this case, appellant did not raise, at or before sentencing, the failure of the court to advise him of the penal consequences of his admission. By failing to do so, he has forfeited the issue on appeal. (Walker, supra, 54 Cal.3d at p. 1023.) In any case, he has failed to demonstrate a reasonable probability that he would not have entered the admission had he been so advised. (Id. at pp. 1022-1023.)
II. The Trombetta Motion Was Properly Denied
Appellant contends his right to due process under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) was violated because a compact disc (CD) recording of JD2’s interview by Oakland Police Sergeant Rodney Grimes was not preserved for trial, and therefore the trial court erroneously denied appellant’s pretrial motion to dismiss counts 10 through 17.
As an alternative to dismissal of eight counts of the information, appellant’s written Trombetta motion sought exclusion of JD2’s testimony.
A. Hearing on Trombetta Motion
On October 14, 2008, at the commencement of the hearing on appellant’s Trombetta motion, Grimes testified that in November 2005, he received a report by Oakland Police Officer Bergquist regarding JD2. The Bergquist report contained a statement by JD2. On November 21, Grimes conducted a recorded telephone interview of JD2. He utilized a recording device that plugged into the computer of the Oakland Police Department (OPD) and, following the interview, downloaded the digital recording to the computer and created a CD of the recording. Grimes explained that after the CD is made, the downloaded data remains on the OPD computer. Grimes had no independent recollection of what JD2 told him during the recorded interview. He said the case was closed in December 2005 after the district attorney declined to prosecute. Grimes told Oakland Police Detective James Beere that the district attorney decided not to charge the case because of “issues with the victim’s statements.” Grimes said he expected that after the district attorney decided not to prosecute the case, the CD would be put into the case packet, which would be filed at the OPD. Subsequently, the case was reopened and, in January 2006, the complaint was filed.
When the Trombetta hearing recommenced on October 24, 2008, the prosecutor reported that the CD had been located but was cracked; it appeared to be the only copy. Because the CD had been taken to a lab to be repaired, the court then continued the Trombetta hearing.
When the hearing continued on December 5, 2008, computer forensic examiner Wansin Ounkeo, testified he examined the cracked CD and attempted to try to recover its contents. The CD had a large crack, which would not occur in the normal course of handling a CD. He had no knowledge of how the CD had become cracked. Ounkeo was able to recover eight of the 27 minutes recorded on the CD. The prosecutor stated that nothing in the eight minutes was inconsistent with the statement JD2 gave to Bergquist.
In denying the Trombetta motion, the trial court found that the lost CD evidence was not the result of bad faith pursuant to Arizona v. Youngblood (1988) 488 U.S. 51. It also found that appellant had not established that the lost evidence was exculpatory and that comparable evidence could not obtained by other reasonably available means. In particular, the court stated that JD2 could be questioned as to whether there was anything in Grimes’s recorded statement that was inconsistent with the statement she gave to Bergquist, her preliminary hearing or her trial testimony.
B. Analysis
“Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ [Citations.] To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ [Citation.] In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ [Citations.]” (People v. Roybal (1998) 19 Cal.4th 481, 509-510 (Roybal); accord, People v. Carter (2005) 36 Cal.4th 1215, 1246 (Carter).) On appeal, we determine whether substantial evidence supports the trial court’s ruling. (Roybal, at p. 510; accord, Carter, at p. 1246.)
Appellant argues the exculpatory value of the broken CD was established by the fact that the district attorney elected not to proceed on the case based in part on the statement by JD2 contained on the CD. However, the assertion is speculative. Grimes testified he told Beere the district attorney decided not to charge the case because of “issues with the victim’s statements.” (Italics added.) JD2 made multiple statements to various officers and the SART practitioner and no evidence was presented that the decision not to charge the case resulted from JD2’s recorded statement contained on the CD. In addition, as the court concluded, JD2 could have been questioned as to whether there was anything in her statement on the CD that was inconsistent with the statements she gave to Bergquist or at the preliminary hearing or at trial. Moreover, appellant could have attempted to retrieve JD2’s CD statement from the computer from which it was downloaded.
In an attempt to establish bad faith on the part of police in failing to preserve the CD, appellant argues the cracked CD disclosed a defect which resulted from “more than negligent mishandling, ” therefore, the breaking of the CD while it was in police custody deprived him of a fair trial. Again, this argument is speculative. The Trombetta rule is intended, in large part, to discourage law enforcement authorities from destroying evidence they know to be exculpatory before it can be disclosed to the defense. (Trombetta, supra, 467 U.S. at p. 488.) Bad faith, for purposes of Trombetta, is the intentional destruction of evidence in order to prevent the defendant from taking advantage of it. (Ibid.) Here, there is no evidence that the police intentionally damaged the CD to prevent appellant from taking advantage of it. Ounkeo testified the large crack on the CD was not something that would occur in the normal course of handling a CD. But no evidence was presented as to how the CD was damaged or that it was intentionally mishandled. The motion to dismiss for failure to preserve evidence was properly denied.
III. The Motion to Sever Was Properly Denied
Next, appellant contends the court erred in denying his motion to sever the charges against JD1 from those against JD2.
In his pretrial severance motion, appellant argued the evidence regarding the charges against the two victims was not cross-admissible. He asserted the offenses against JD1 involved a stranger, who forced his way into the victim’s apartment, armed himself with a knife taken from the victim’s apartment, sexually assaulted her multiple times, and then looted her apartment. Appellant alleged consensual sex with JD1. In contrast, the offenses against JD2 involved a victim known to appellant, and the victim claimed that in the midst of purchasing crack cocaine from him, appellant pulled out a gun, sexually assaulted her multiple times, and then commandeered her vehicle. Appellant denied use of the gun or engaging in any sexual activity with JD2. Appellant also, in essence, argued the case involving the offenses against JD2 was much weaker than the case involving the offenses against JD1, and there would be a “spillover effect” from the JD1 case to the JD2 case. The prosecutor argued, if the two sets of counts were severed, he would move under Evidence Code section 1108 to have the evidence regarding the offenses against each victim admitted in each trial. He also asserted the same crimes were committed against both victims and the crimes were committed within 10 days of each other.
Evidence Code section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
In denying the severance motion the court stated, “This is one [case] that fits directly in line with [section] 954.... There’s violence in both. We have oral copulation. We have rape. We have DNA evidence. It’s not a weak case and a strong case.”
“ ‘ “The law prefers consolidation of charges.” ’ [Citations.] ‘An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.’ (§ 954.)” (People v. Smith (2007) 40 Cal.4th 483, 510 (Smith).) “The purpose underlying [section 954] is clear: joint trial ‘ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.’ [Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).)
The denial of a severance motion is reviewed for abuse of discretion. (Smith, supra, 40 Cal.4th at p. 510.) “To demonstrate that a denial of severance was reversible error, [the] defendant must ‘ “clearly establish that there [was] a substantial danger of prejudice requiring that the charges be separately tried.” ’ [Citation.]” (Ibid.) However, even if a trial court’s severance ruling was correct at the time it was made, we must reverse the judgment if the defendant establishes that joinder actually resulted in “ ‘gross unfairness’ amounting to a denial of due process.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
In determining whether a trial court abused its discretion in declining to sever properly joined charges, we first consider the cross-admissibility of the evidence in hypothetical separate trials. (Soper, supra, 45 Cal.4th at p. 774.) If we determine that the evidence would be cross-admissible, generally that factor is alone sufficient to dispel any suggestion of prejudice and justify the court’s refusal to sever. (Id. at pp. 774-775.)
“If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider ‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ [Citations]. In making that assessment, we consider three additional factors, any of which—combined with our earlier determination of absence of cross-admissibility—might establish an abuse of the trial court’s discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.” (Soper, supra, 45 Cal.4th at p. 775, fn. omitted.)
With no analysis, appellant argues the evidence underlying the counts involving the offenses against JD1 and JD2 was not cross-admissible, and even if some of the evidence was potentially cross-admissible, a balancing of probative value and prejudicial effect was necessary. He also argues the benefits of joinder did not outweigh the potential for an adverse spillover effect. In particular, he asserts that the case involving JD2 was weaker than that involving JD1, as evidenced by the prosecution’s declining to prosecute the JD2 case until after the JD1 charges were filed. He also asserts the prosecutor took advantage of the spillover effect of the joined counts during opening statement by twice stating that there were “two incidents, ” and later stating, “again, ladies and gentlemen, the defendant is alone with a female; dark, secluded area.”
As the prosecutor argued, and the court implicitly concluded, the evidence of the sex offenses against each of the two victims would be cross-admissible pursuant to Evidence Code section 1108. Even if we assume that consideration of factors other than cross-admissibility is necessary, we conclude that appellant has failed to carry his burden of showing the prejudice required to establish that the trial court abused its discretion in refusing to sever the charges. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) Contrary to appellant’s assertion, the charges regarding JD2 were not weaker than those regarding JD1. With respect to both JD1 and JD2, appellant committed prolonged, forcible sexual assaults facilitated by use of a deadly weapon—a knife as to JD1, a gun as to JD2. Moreover, given the presence of DNA evidence in both cases, there was not a weak case joined with a strong case, suggesting the risk of a prejudicial spillover effect.
We conclude the trial court did not abuse its discretion in denying appellant’s motion to sever.
IV. The Firearm Use Enhancements Were Supported by Substantial Evidence
Appellant next contends the firearm use enhancement (§§ 667.61, subd. (e)(4), 12022.3, 12022.5, subd. (a), 12022.53) during the commission of the JD2 offenses is unsupported by substantial evidence.
Whether appellant used a firearm during the commission of the various enumerated offenses was a factual question for the jury. (People v. Bryant (2011) 191 Cal.App.4th 1457, 1472 (Bryant).) “Proof of firearm use during a felony does not require a showing the defendant ever fired a weapon. ‘Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” means, among other things, “to carry out a purpose or action by means of, ” to “make instrumental to an end or process, ” and to “apply to advantage.” [Citation.] The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that “uses” be broadly construed.’ [Citation.] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5[, subdivision] (a).’ [Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 806-807 (Wilson).)
We review the sufficiency of evidence supporting an enhancement under the same standard applied to a conviction. (Bryant, supra, 191 Cal.App.4th at p. 1472.) “ ‘ “On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” ’ [Citation.] ‘Whether a defendant used a firearm in the commission of an enumerated offense is for the trier of fact to decide. [Citation.]... Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’ [Citation.]” (Wilson, supra, 44 Cal.4th at p. 806.)
Appellant argues JD2’s testimony that she saw the gun after it accidentally fell on the van’s floorboard was insufficient to establish firearm use in the commission of the sex offenses against her. He argues no evidence was presented that JD2 saw appellant take the gun out, use it, or refer to it during the offenses. The argument is belied by the record before us.
On cross-examination, JD2 testified she saw the gun when appellant took it out from behind him, and, thereafter, it hit the floorboard. She also testified appellant picked the gun up and put it back on his person. She said she complied with appellant’s demands because she knew he had a gun and was afraid she might die. Based on this evidence the jury could reasonably infer that when appellant took the gun from “his back” and when he picked it up from the floorboard, he intentionally displayed it to instill fear in JD2, and that fear continued throughout his assault against her.
V. Presence of Deputy Next to Appellant on the Witness Stand
Appellant next contends the presence of a uniformed deputy next to him while he testified was an abuse of discretion and violated his state and federal rights to due process.
The People contend, and we agree, that appellant forfeited his due process claim by failing to object on that ground below. (See People v. Partida (2005) 37 Cal.4th 428, 435-436.)
After the prosecution rested its case, and outside the presence of the jury, the court was informed that appellant would be the next witness. It informed appellant, “this Court’s policy has been that... when there is a defendant testifying, I have a deputy standing next to him.” The court’s bailiff, Deputy Dennis Armstrong, testified that appellant was classified by the jail as an administrative segregation inmate, requiring him to be escorted by two deputies. Armstrong explained that “whenever [appellant] is present in court, he should have two deputies, ” and must have two deputies with him if he goes to the hospital. Armstrong did not know why appellant was housed in administrative segregation, but said appellant had been previously housed in protective custody. Armstrong explained, “there are different circumstances for housing an inmate in administrative segregation; either for his protection, protection from others, or protection from personnel.” Armstrong said, due to his department’s policy and procedure, appellant’s administrative segregation classification required that two deputies be present with appellant in the courtroom.
We assume, without deciding, Armstrong’s explanation contains a misstatement, and that he intended to testify that inmates are housed in administrative segregation for their own protection, protection of others, or protection of personnel.
Following Armstrong’s testimony, the court stated, “My policy, knowing what I know, I’m going to have my deputy... sit in the chair next to [appellant]. He’s unarmed. [Appellant] won’t be chained. [¶]... [¶] Okay. He will sit here, and the deputy will sit next to him, as I do normally when defendants take the stand. At least half the cases, they’re in custody. [¶] [I] think there’s enough before me that we have to take the precautions prescribed by the Sheriff’s Department at least as it relates to the need for the extra security as it relates to [appellant].”
Defense counsel then objected to having a deputy sit next to appellant “absent some showing that he’s in [administrative segregation] for some threatening behavior, and we had no information relating to that.” The court responded, “Well, based upon the historical issues that have evolved regarding the defendants in this area of [administrative segregation], and also based upon the... information provided by Deputy Armstrong that there’s a requirement to have two deputies in my courtroom, where I’ve not had that requirement on any of my defendants, I’m going to take the precaution, and he will go and sit just as I’ve described....”
A court’s decision to employ security measures in the courtroom is reviewed for abuse of discretion. (People v. Stevens (2009) 47 Cal.4th 625, 632.) “[A] deputy’s presence at the witness stand during a defendant’s testimony is not inherently prejudicial.” (Id. at p. 638.) “[S]o long as the deputy maintains a respectful distance from the defendant and does not behave in a manner that distracts from, or appears to comment on, the defendant’s testimony, a court’s decision to permit a deputy’s presence near the defendant at the witness stand is consistent with the decorum of courtroom proceedings.” (Id. at p. 639, fn. omitted.) “Although... a heightened showing of manifest need is not required to justify the stationing of a security officer near the witness stand, the responsibility of the trial court remains the same. The court may not defer decisionmaking authority to law enforcement officers, but must exercise its own discretion to determine whether a given security measure is appropriate on a case-by-case basis. [Citations.] [T]he trial court has the first responsibility of balancing the need for heightened security against the risk that additional precautions will prejudice the accused in the eyes of the jury.... The trial court should state its reasons for stationing a guard at or near the witness stand and explain on the record why the need for this security measure outweighs potential prejudice to the testifying defendant. In addition, although we impose no sua sponte duty for it to do so, the court should consider, upon request, giving a cautionary instruction, either at the time of the defendant’s testimony or with closing instructions, telling the jury to disregard security measures related to the defendant’s custodial status. [Citation.]” (Id. at p. 642.)
Recently, in People v. Hernandez (2011) 51 Cal.4th 733 (Hernandez), our Supreme Court explained the role of the trial court in exercising its discretion in ordering heightened security: “Where it is clear that a heightened security measure was ordered based on a standing practice, the order constitutes an abuse of discretion, and an appellate court will not examine the record in search of valid, case-specific reasons to support the order. Trial judges should be mindful of their duty to state the reasons for their decisions on the record.” (Id. at p. 744.)
In Hernandez, a courtroom deputy stood behind the defendant while he testified. (Hernandez, supra, 51 Cal.4th at p. 739.) The procedure was not mentioned or discussed with counsel beforehand. After a break in the defendant’s testimony, his counsel objected that the deputy’s presence was inappropriate. The trial court responded, “ ‘I’ve seen it happen in every trial I’ve ever done and that is because of security. And the defendant, as all defendants, even in a petty theft, if they sit there, a bailiff is supposed to sit behind them for security of the jury, for security of everyone.’ ” (Ibid.) The court also noted that appellant was accused of aggravated assault “ ‘with a very bad injury.’ ” (Ibid.) When defense counsel asked the court to make an individualized finding based on the defendant’s own factors, the court responded that the defendant had an 18-page rap sheet and stated, “ ‘And I think he deserves what every defendant deserves, and that is security for himself and for all the rest of us.’ ” (Id. at p. 740.) The court refused defense counsel’s request to consider whether any of the restraining order incidents involved violence. (Id. at pp. 740, 743.) When defense counsel said that many of the rap sheet offenses were violations of the defendant’s restraining order with his ex-wife, the court stated the violations indicated the defendant’s “ ‘inability to follow the orders of the Court, ’ a fact that was ‘[k]ind of important.’ ” (Id. at p. 740.)
The Hernandez court concluded that the trial court’s decision to station a deputy at the witness stand during the defendant’s testimony was “not based on a thoughtful, case-specific consideration of the need for heightened security, or of the potential prejudice that might result.” (Hernandez, supra, 51 Cal.4th at p. 743.) The Supreme Court concluded that the trial court “elevated a standard policy” above the individualized concerns and based its decision on the “generic policy.” The Supreme Court concluded, “the court’s scattered references to individualized facts constituted, at most, an effort to construct a post hoc justification for a security measure the court had already decided to employ pursuant to its standard policy.” (Ibid.) Although Hernandez concluded the trial court abused its discretion by stationing a deputy at the witness stand during the defendant’s testimony “out of deference to a generic policy” (id. at p. 744), it concluded the error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Hernandez, at pp. 744-748.)
Hernandez noted that such individualized facts might show a defendant posed a safety risk or flight risk, or a risk of otherwise disrupting the proceedings. (Hernandez, supra, 51 Cal.4th at p. 744.)
As noted above, Armstrong’s testimony is less than clear about the reasons, in general, for an inmate’s administrative segregation housing classification. In addition, Armstrong did not know why appellant was housed in administrative segregation and no evidence was presented that appellant presented a threat or danger to others requiring heightened security. However, assuming the court abused its discretion in stationing a deputy at the witness stand during the defendant’s testimony, we conclude it is not reasonably probable that appellant would have obtained a more favorable result absent the error.
Appellant admitted having sexual contact with JD1, and the only issue for the jury concerned whether the sexual contact with JD1 was consensual. In addition to JD1, another witness testified that appellant gained entry to the apartment by posing as a Comcast repairman. The SART practitioner testified that JD1’s physical examination findings were consistent with her report of forcible rape, sodomy and oral copulation. We reject appellant’s assertion that the jury’s acquittal of the robbery charge against JD1 strengthens his claim of prejudice. Instead, “that defendant was acquitted of any of the offenses suggests the lack of prejudice and the jury’s clear ability to consider each count on the evidence presented and nothing else.” (See People v. Mendibles (1988) 199 Cal.App.3d 1277, 1312.) As to the charges involving JD2, quite simply, appellant’s testimony that he did not engage in any sexual conduct with JD2 was contradicted by the DNA evidence against him.
Accordingly, it is not reasonably probable appellant would have obtained a more favorable result without the deputy sitting next to him on the witness stand. Thus, any error was harmless. (Watson, supra, 46 Cal.2d at p. 837.)
VI. Trial Court’s Failure to Instruct on Attempted Sodomy Was Error
Next, appellant contends the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted sodomy against JD2. (§§ 286, 664.) The People rejoin that the evidence did not support an attempted sodomy instruction and, alternatively, that any error in failing to so instruct was harmless.
A court has a duty to instruct the jury on principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. (People v. Birks (1998) 19 Cal.4th 108, 118; People v. Kimble (1988) 44 Cal.3d 480, 503.) The court must instruct on lesser included offenses when there is substantial evidence for the jury to conclude the defendant is guilty of the lesser offense but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman); People v. Garcia (2008) 162 Cal.App.4th 18, 24.) A lesser included offense is necessarily included in the greater offense if either the statutory elements of the greater offense or the facts actually alleged in the accusatory pleading include all elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (Breverman, at pp. 148-149, 154, fn. 5.) A court’s erroneous failure to instruct sua sponte on a lesser included offense in a noncapital case is reviewable under the Watson standard. (Breverman, at p. 165; Watson, supra, 46 Cal.2d at p. 836.)
JD2 testified to two acts of sodomy committed against her by appellant: on Wallace Street and at the Embarcadero. She also testified she had informed Larkin, the SART practitioner who examined her at Highland Hospital, that at the Embarcadero appellant had “tried” to sodomize her, but “he wasn’t able to.” However, Larkin testified slightly differently. When Larkin asked JD2 if there had been vaginal penetration, “[JD2] said yes.” Then Larkin asked JD2 if there had been anal penetration and “[s]he said attempted. So the person who assaulted her attempted to.”
Section 286, subdivision (a) defines sodomy as “sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.”
Appellant argues the testimony of JD2 and Larkin provides substantial evidence that the offenses charged in counts 11 and 17 were attempted, not completed sodomies. We agree. Consequently, an attempted sodomy instruction was warranted, and the court erred in failing to give this instruction sua sponte. In discussing the policy considerations favoring instructions on lesser included offenses in these circumstances, the California Supreme Court said the state has no “legitimate interest in obtaining a conviction of the offense charged where the jury entertains a reasonable doubt of guilt of the charged offense but returns a verdict of guilty of that offense solely because the jury is unwilling to acquit where it is satisfied that the defendant has been guilty of wrongful conduct constituting a necessarily included offense.” (People v. St. Martin (1970) 1 Cal.3d 524, 533.) Here, the jury could have properly convicted appellant of the charged sodomies or, alternatively, of one or two attempted sodomies. Because we cannot conclude that, had the jury been properly instructed on attempted sodomy, it is reasonably probable it would still have convicted appellant of completed sodomy, appellant’s convictions against JD2 in counts 11 and 17 must be reversed.
VII. Sentencing Issues
A. Sentencing Hearing
The trial court imposed sentence, in part, under the Three Strikes law (TSL) (§ 667, subd. (e)(1)), the habitual sexual offender law (HSOL) (§ 667.71), the One Strike law (OSL) (§ 667.61), and Jessica’s law (§ 667.6, subds. (c) & (d)). At the outset of the sentencing hearing, in generally discussing the criteria for imposing consecutive or concurrent sentences, the court noted there were “two separate victims, ” the crimes occurred eight days apart and “each of these separate acts” “involve[d] a great deal of violence and threats of violence.” It also noted the offenses “were committed at different times in different places rather than being committed close together in the same place in a single period of time.”
1. JD1 Offenses
Regarding the offenses committed against JD1, the court imposed five consecutive life terms totaling 238 years four months to life as follows:
On count 2 (oral copulation), the court imposed a term of 55 years to life: 25 years to life under the HSOL, doubled under the TSL, plus five years for the serious felony prior (§ 667, subd. (a)(1)). The court then utilized the same calculation to impose an additional term of 55 years to life under the OSL.
On count 5 (sodomy), the court found the offense a separate act committed after appellant moved the victim into another room of her home and therefore determined that full, consecutive sentencing was mandatory under Jessica’s law (§ 667.6, subd. (d)). It utilized the same calculation as to count 2 to impose a consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
On count 6 (rape), the court exercised its discretion under Jessica’s law (§ 667.6, subd. (c)) “not [to] impose a full consecutive term, ” finding that the offense was committed “within the same timeframe” and the same location. It therefore imposed a consecutive term of 18 years four months to life: eight years four months to life (one-third the midterm) under the HSOL, doubled under the TSL, plus one year eight months (one-third the midterm) for the serious felony prior. The court utilized the same calculation to impose an additional consecutive term of 18 years four months to life under the OSL.
On count 7 (rape), the court found the offense a “separate and independent act” against “the same victim on a separate occasion.” Pursuant to Jessica’s law (§ 667.6, subd. (d)), it utilized the same calculation as to count 2 to impose a full, consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
On count 8 (rape), the court found the offense was a “separate act” based on appellant’s movement of the victim to another area of her home and involved “the same victim on a separate occasion.” Pursuant to Jessica’s law (§ 667.6, subd. (d)), it utilized the same calculation as to count 2 to impose a full, consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
Pursuant to People v. Lopez (2004) 119 Cal.App.4th 355, 364, the court stayed the terms imposed under the OSL, and stated the total aggregate term as to the offenses against JD1 was 238 years four months to life.
2. JD2 Offenses
On count 10 (oral copulation), the court utilized the same statutory basis and calculation as to count 2 to impose a consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
On count 11 (sodomy), the court found the offense was a “separate and independent act[] on the same victim, ” based on appellant’s movement of JD2 from the front to the back of her van. Pursuant to Jessica’s law (§ 667.6, subd. (d)), it utilized the same calculation as to count 2 to impose a full, consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
On count 13 (rape), the court exercised its discretion under Jessica’s law (§ 667.6, subd. (c)) to impose less than a full term after finding that the count 13 offense and the count 11 offense were a “single transaction.” As in count 6, it imposed an additional consecutive term of 18 years four months to life under the HSOL and a consecutive term of 18 years four months to life under the OSL.
On count 15 (oral copulation), the court found the offense was against the same victim on a separate occasion based on appellant’s driving the victim to a different location. Pursuant to Jessica’s law (§ 667.6, subd. (d)), it utilized the same calculation as to count 2 to impose a consecutive term of 55 years to life under the HSOL and an additional consecutive term of 55 years to life under the OSL.
On count 16 (rape), the court found the offense was committed within the same timeframe and location as the count 15 offense and, therefore, as in count 6, exercised its discretion pursuant to Jessica’s law (§ 667.6, subd. (c)), to impose a consecutive term of 18 years four months to life under the HSOL and an additional consecutive term of 18 years four months to life under the OSL.
On count 17 (sodomy), the court found the offense was committed within the same timeframe and location as the count 15 and count 16 offenses and, therefore, as in count 6, exercised its discretion pursuant to Jessica’s law (§ 667.6, subd. (c)), to impose a consecutive term of 18 years four months to life under the HSOL and an additional consecutive term of 18 years four months to life under the OSL.
After staying the OSL sentences, the court stated the total aggregate term as to the offenses against JD2 was 220 years to life. The total sentence of 458 years four months to life was imposed as to the offenses against both victims.
B. Remand Is Required for the Court to Make a “Single Occasion” Determination Under the OSL
Appellant contends, and the People agree, that on each of the 11 counts, the court imposed consecutive life term sentences under the OSL without determining whether any of the acts against a single victim were committed during a single occasion.
Former section 667.61, subdivision (g), in effect in 2005 when appellant committed the instant offenses, provided, in relevant part, that an indeterminate term imposed under former section 667.61, subdivision (a) or (b) “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.... Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Stats. 1998, ch. 936, § 9, p. 6876.)
Effective September 20, 2006, section 667.61 was substantially revised. (Stats. 2006, ch. 337, §§ 33, 62.) The revised subdivision (i) of that statute mandates consecutive sentencing “if the crimes involve separate victims or involve the same victim on separate occasions.”
In People v. Jones (2001) 25 Cal.4th 98, 107 (Jones), our Supreme Court held that “for purposes of... section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” Applying Jones, the court in People v. Fuller (2006) 135 Cal.App.4th 1336, 1343, concluded that three rapes occurring within an hour while both the defendant and the victim remained inside the same apartment—the defendant kept the victim under his continuous and uninterrupted control and the only movement was a short distance from the bedroom to the living room—was a “single occasion” within the meaning of former section 667.61, subdivision (g).
The People concede that at least some of the acts in this case occurred in “close temporal and spatial proximity, ”and note that appellant did not raise this issue below and the trial court did not address which acts were committed on a single occasion under Jones. We agree with the parties that the case must be remanded so that the court can make a determination under Jones whether any of the offenses were committed against the same victim on a single occasion.
The People note that because the OSL sentence was stayed, there will be no “immediate impact” on appellant’s actual prison term.
C. Court’s Sentencing Discretion Under the HSOL
Appellant also contends the trial court was unaware that it had discretion whether or not to impose consecutive life sentences under the HSOL. He argues, although consecutive sentencing is mandated under the OSL, it is not mandated by the HSOL, and therefore the matter must be remanded so the trial court can exercise its discretion. We disagree.
Appellant is correct that under the HSOL, the court has discretion to impose sentence on each count concurrently or consecutively. (People v. Murphy (2001) 25 Cal.4th 136, 151 .) However, appellant was not sentenced solely under the HSOL; he was also sentenced under the OSL, the TSL, and Jessica’s law.
As to each count, the trial court sentenced appellant consecutively under Jessica’s law. (§ 667.6 subds. (c) & (d).) Section 667.6 provides an alternative, harsher sentencing scheme for certain sex offenses than the generally applicable determinate sentencing provisions of section 1170.1. (People v. Belmontes (1983) 34 Cal.3d 335, 344, 346.) Under section 1170.1, the court imposes an aggregate sentence composed of a principal term, the greatest term of imprisonment imposed for any of the convictions, and subordinate terms for additional felony offenses consisting of one-third of the middle term for each. (§ 1170.1, subd. (a); People v. Pelayo (1999) 69 Cal.App.4th 115, 123.) Under section 667.6, subdivision (c) however, “[i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion.” Subdivision (d) of section 667.6 makes imposition of full, separate and consecutive terms for the enumerated offenses mandatory when the crimes involve separate victims or the same victim on separate occasions.
As we noted ante, at the outset of the sentencing hearing, in generally discussing consecutive versus concurrent sentencing, the court noted that each of the offenses involved a great deal of violence and threats of violence. Thereafter, the court determined that as to seven counts, consecutive sentencing was mandatory under section 667.6, subdivision (d). As to the remaining four counts (counts 6, 13, 16 and 17), the court found the offenses involved the same victim on the same occasion; therefore it had discretion under subdivision (c) of section 667.6 to sentence appellant concurrently or consecutively on those counts. It exercised that discretion and sentenced appellant consecutively.
The trial court exercised its discretion under Jessica’s law to show a measure of leniency to appellant by sentencing him on counts 6, 13, 16 and 17 to one-third the statutory terms as the minimum indeterminate term. Appellant relies on this leniency to argue that if the court had been aware of its discretion under the HSOL to impose concurrent sentences, it is likely that it would not have imposed consecutive sentences. Appellant asks us to remand the matter for the court to exercise this discretion. We decline to do so. First, nothing in the record supports appellant’s assumption that the trial court was unaware of the discretion granted to it to impose concurrent sentences under the HSOL. “[A] trial court is presumed to have been aware of and followed the applicable law” (People v. Mosley (1997) 53 Cal.App.4th 489, 496 (Mosley)), “ ‘[a] judgment or order of the lower court is presumed correct’ ” and “ ‘error must be affirmatively shown’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564). “These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. [Citations.]” (Mosley, at pp. 496-497; see also People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[W]e cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of [its sentencing] discretion.”].) The record before us does not establish that the court misunderstood the scope of its discretion and we will not make that presumption.
Second, the court exercised its discretion under Jessica’s law to impose four consecutive life terms in addition to the seven consecutive life terms mandated by that sentencing provision. There is simply no basis for believing the court would exercise its discretion differently under the HSOL and impose fewer than the 11 consecutive life terms it imposed. Therefore, even if the court misunderstood the scope of its discretion under the HSOL, any error is harmless. (Watson, supra 46 Cal.2d at p. 836.) Under the circumstances, it is simply not reasonably probable the trial court would have exercised its discretion to impose a lesser sentence. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1033-1034.)
D. The Sentences on Counts 6, 13, 16 and 17 Are Unauthorized
The People argue the matter must be remanded to correct the unauthorized sentence terms imposed on counts 6, 13, 16 and 17. They assert that although the court properly sentenced those counts consecutively it was required to impose full-term consecutive sentences. Thus, they argue the court’s exercise of discretion reducing to one-third the indeterminate life terms and the prior serious felony enhancement terms (§ 667, subd. (a)) was unauthorized. We agree.
A sentence beyond the jurisdiction of the trial court can be corrected any time when brought to the court’s attention either by the People’s appeal, by the People in response to the defendant’s appeal, or by the Department of Corrections and Rehabilitation. (See People v. Purata (1996) 42 Cal.App.4th 489, 498; People v. Chagolla (1983) 144 Cal.App.3d 422, 434.)
In reliance on People v. Williams (2004) 34 Cal.4th 397 (Williams), the People argue that in imposing less than full life terms on counts 6, 13, 16 and 17, the court erroneously applied determinate sentencing principles to an indeterminate term. Williams held, “Section 1170.1... applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed under the [TSL] law.” (Williams, at p. 402.) “Multiple indeterminate terms sentenced consecutively are fully consecutive to each other. Any applicable conduct and status enhancements as to each count are fully consecutive to each other and are fully consecutive to the base term. (People v. Felix (2000) 22 Cal.4th 651.)” (Couzens & Bigelow, Cal. Three Strikes Sentencing (The Rutter Group 2010) ¶ 8:2(1)(b), p. 8-15.) Thus, the court erred in imposing less than full indeterminate life terms on counts 6, 13, 16 and 17.
In addition, the People correctly assert that the trial court erred in imposing less than the full five year prior felony status enhancement (§ 667, subd. (a)) on counts 6, 13, 16 and 17.
Section 667, subdivision (a) provides in part: “(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”
Section 1385, subdivision (b) provides: “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”
Where a defendant has prior serious felony convictions, the court is required to impose a five-year section 667, subdivision (a) enhancement on each count for which it imposes a TSL sentence. (Williams, supra, 34 Cal.4th at pp. 403-405; accord, Couzens & Bigelow, Cal. Three Strikes Sentencing, supra, ¶ 8.2(1)(b), pp. 8-15 to 8-16.) Thus, the court lacked discretion to impose less than the full five-year enhancement on counts 6, 13, 16 and 17.
DISPOSITION
Appellant’s convictions on counts 11 and 17 are reversed. In addition, the matter is remanded for resentencing consistent with the views expressed in this opinion. The judgment is otherwise affirmed.
We concur. JONES, P.J., BRUINIERS, J.
Exhibit No. 1: The unpublished opinion by Division Four of this court in People v. Sasser (A066596, June 12, 1995) affirming appellant’s 1994 conviction by jury trial of felony aggravated assault in Alameda County case No. 117782.
Exhibit No. 2: The May 1, 2007 Abstract of Judgment and appellant’s May 1, 2007 Advisement of Rights, Waiver and Plea Form evidencing appellant’s no contest plea to one count of failing to register as a sex offender in the case of People v. Sasser, Contra Costa County case No. 4 144800-0.
Exhibit No. 3: The May 26, 1999 Clerks Docket and Minutes and appellant’s May 26, 1999 “216-MWI (3/97)” waiver of rights/plea form evidencing appellant’s no contest plea to one count of misdemeanor battery in the case of People v. Sasser, Alameda County case No. 333189.
Exhibit No. 4: The September 22, 2004 Clerks Docket and Minutes and appellant’s February 2, 2004 Misdemeanor Advisement of Rights, Waiver and Plea Form evidencing appellant’s no contest plea to one count of misdemeanor embezzlement in the case of People v. Sasser, Alameda County case No. 102868.
In all other respects, the request is denied.
Evidence Code section 1101 provides:
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Evidence Code section 352 provides: “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.”