Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court,No. BA301712 of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified with directions.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Tony Rena Snell, convicted of one count of kidnapping, two counts of making criminal threats, and one count of corporal injury to a cohabitant, contends: (1) the trial court erred in imposing separate punishments for the kidnapping count and the two counts of making criminal threats, as the threats uttered were incidental to the kidnapping; (2) the trial court erred in certain of its evidentiary and other rulings, resulting in an unfair trial; and (3) the trial court erred in imposing the high term for the kidnapping count. Respondent concedes that the punishment for one of the two criminal threat counts should have been stayed under Penal Code section 654. We modify the judgment to stay the sentence on one of the criminal threat counts, but otherwise affirm.
Unless otherwise indicated, statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a five-count information with kidnapping (§ 207, subd. (a)) (count one); vandalism (§ 594, subd. (a)) (count two); criminal threats (§ 422) (counts three and four); and corporal injury to a cohabitant (§ 273.5, subd. (a) (count five).
B. Evidence at Trial
1. Prosecution Evidence
The charges against appellant derived from incidents that occurred on August 22, 2005. The prosecution’s principal witness was Tammie Pernell, who had become romantically involved with appellant in 2004. Prior to describing the events of August 22, she related three other incidents involving abusive conduct that occurred in February 2005, July 2005 and early August 2005. (See Evid. Code, § 1109 [permitting admission of evidence of other acts of domestic violence to prove charged offenses].)
The February 2005 incident occurred when Pernell and appellant went to visit her mother in Detroit. During their stay, the two quarreled because Pernell did not want to engage in sexual relations in her mother’s house. Appellant grabbed her and choked her until she passed out. After she regained consciousness, they had sexual relations. Pernell did not want to have sex and felt forced. On that occasion, Pernell did not contact law enforcement, but she did ask appellant to return to Los Angeles, which he agreed to do within a few days. Pernell stayed in Detroit for several months. During that time, appellant called and wrote her, seeking forgiveness. He told her he had begun going to church and had enrolled in a domestic violence class.
Pernell returned to Los Angeles at the end of April 2005, and reconciled with appellant shortly thereafter. In July 2005, a second incident occurred. Appellant drove her to an empty house on Vernon to which he had access and told her he was going to “‘fuck [her] up.’” He took her into the house and pushed her down on a bed. He then tried to untangle a large extension cord, saying he was “‘tired of [her] playing him like a sucker, trying to carry [him] like a bitch.’” She begged him not to beat her, and when he was unable to untangle the cord they left. After returning to Pernell’s home, they engaged in anal intercourse. Pernell described this as something she had never done before, did not want to do, and felt forced to do, and characterized it as “rough sex.”
In early August 2005, Pernell refused to have sexual relations with appellant in her home because his children were visiting. Appellant became upset and accused Pernell of being distant and of not loving him. He pulled her into the bedroom, put socks on his hands, and started hitting her. He also hit her with a plastic bottle placed inside a sock. They engaged in anal intercourse again that night. Asked if it was consensual, she said “no” and that it occurred because appellant “started doing [it].” Pernell did not call the police after the early August 2005 incident because appellant told her he was not afraid of the police and was willing to fight the police.
Sometime after the early August 2005 incident, Pernell learned that appellant had been accused of prior incidents of domestic violence. She decided to try to get out of her relationship with appellant. She took him to dinner and told him they should spend nights together on weekends only. They spent that weekend together and appellant left on Sunday.
Approximately a week later, on August 22, 2005, appellant called Pernell and asked if he could come to her house to pick up some paperwork. Pernell found the paperwork and agreed to take it to appellant instead. She arrived at appellant’s house between 10:00 and 11:00 a.m. She had called appellant before her arrival and asked him to meet her outside. When she arrived, appellant was sitting in his car. He got into her car and told her to park it. She tried to convince him that she was in a hurry and would see him later that evening, but he started screaming at her to “‘pull [the] mother fucker over now.’” Once she did, he took the keys and got out of the car.
Pernell convinced appellant to return the keys so she could close an open window. She closed the window, locked the doors and tried to get away, but the engine would not start. While Pernell continued trying to start the car, appellant jumped on the hood, kicked the windshield, kicked at the driver’s side window, and then shattered it with a bat. Pernell escaped out the passenger side door, covered in glass.
Pernell ran to the porch of a neighbor’s house to seek assistance. The neighbor, a woman, told appellant he had gone too far. Appellant grabbed Pernell by her shirt and neck and took her back to his car. He pushed her inside, took her purse, and dumped its contents, keeping her cell phone. When he got inside, he said: “‘Fuck my five kids. Fuck my career. Fuck my life. I’m putting it all on the line for your ass today.’” He also said: “‘I’m fucking you up.’” Pernell understood these statements as threats of bodily harm.
Pernell attempted to persuade appellant that she still loved him and planned on marrying him. She told him she had discussed this with someone in his domestic violence program. However, appellant called the program and realized she was lying. He said to Pernell, “‘I’m fucking you up today.’”
Appellant and Pernell drove to various locations while appellant looked for a motel. During this time, appellant continued to say he was going to “fuck [Pernell] up.” At one point, in order to stall for time, Pernell persuaded him there was a suitable motel near La Brea and Slauson, although she knew there were no motels at that location. When they arrived at that location, appellant said: “‘You lying. You lying. That’s okay. I’m fucking you up.’” At another point, appellant parked the car to check the price of a motel and left Pernell inside with the doors locked and the alarm on. He told her if she got out, “‘it’s going to go down right here.’” Pernell did not leave the car, but she tried to get a note asking for help to two men sitting nearby. When appellant returned to the car, he said the motel was “‘too damn expensive for what [he] wanted it for’” and repeated that he was going to “‘fuck[] [Pernell] up.’”
The couple finally stopped at a Motel 6. Appellant went into the office to check in, again leaving Pernell in the car with the alarm on and a warning not to “‘try nothing slick.’” Once appellant obtained a room and parked the car, he ordered Pernell to come with him. She got out of the car, but refused to go upstairs to the room. He put his finger through a belt loop in the back of her jeans and hit or jabbed her to get her to move forward. When they reached the room, she sprayed him with pepper spray and ran down the stairs. She tripped at the bottom and lay there screaming for help. Appellant dragged her across the parking lot. He used the pepper spray on her. While the two were struggling, a woman walked up and asked appellant whether a duffle bag in the room was his.
The Motel 6 manager, Racesh Patel, later testified that he heard screaming. Cynthia Brenecki, a motel guest, also testified. Brenecki heard someone falling down the stairs. When she went outside to investigate, she saw Pernell lying on the ground near the stairs and appellant spraying her with a small can that looked like mace, hitting her on the head, and slamming her face down. Pernell was saying “‘help me.’” Brenecki testified she went up to the couple and tried to distract appellant by returning Pernell’s purse, not by referring to appellant’s duffle bag. She then went to the office and persuaded Patel to call 911. Brenecki returned to the scene and saw Pernell trying to get into a taxicab and appellant restraining her.
Appellant and Pernell returned to the motel room, but stayed only a few minutes because appellant was afraid the police were coming. They got back into appellant’s car. Appellant continued to say he was going to “‘fuck [Pernell] up.’”
Eventually, Pernell convinced appellant to return to her house. When they arrived, Pernell told him she had to use the bathroom. She grabbed the cordless phone on the way and eventually found an opportunity to dial 911 and hang up, knowing the operator would call back. When the call came, she answered and pretended it was a school counselor, replying to the operator’s questions nonsensically. After she hung up, appellant again said he was planning to “‘fuck [her] up.’”
When the police arrived, Pernell told them what had happened and showed them her bleeding arm and skinned knees. One of the officers told her the incident occurred outside of their jurisdiction and advised her to report it at a particular precinct located in Los Angeles. The officers also told appellant to leave, and waited with Pernell while he left.
Pernell reported the crime at the Los Angeles precinct to which she had been directed. The officers who took her report observed scratches on her neck, abrasions on her knee and elbow, and a bump on the back of her head. They also observed the damage to her vehicle, including a smashed windshield and driver’s side window and damage to the hood, and later found a bat with shards of glass imbedded in it at appellant’s house.
Pernell’s friend, Sherine Denby, testified that Pernell had confided in her about being physically and sexually abused by appellant. She particularly recalled being told that appellant “forced [himself] on [Pernell]” when they engaged in anal intercourse, and that the activity caused Pernell to lose control of her bowels. When Pernell returned from the bathroom where she had gone to clean up, appellant was masturbating.
2. Defense Evidence
The defense called the officers who had responded to Pernell’s 911 call. They testified that when they arrived at the house, Pernell told them she was tired of appellant and wanted him out of her house. Pernell did not say she had been assaulted, kidnapped, or threatened. Pernell said appellant had broken her car window, but also said that she did not see him do it.
The defense also called appellant’s neighbor, Margaret Golden. She testified that on the day of the incident, she saw Pernell come onto her porch, followed by appellant. Pernell did not say anything and both appeared calm. Pernell left with appellant voluntarily when he said “Let’s go.”
Julie Woodley, the detective who interviewed Pernell, testified that Pernell never reported being sexually assaulted.
C. Relevant Trial Court Rulings
Prior to trial, the prosecutor sought and obtained permission to question Pernell concerning the three prior uncharged incidents of abuse. During a break after Pernell testified concerning the February 2005 and July 2005 incidents, defense counsel informed the court that this was the first he had heard about allegations of sexual assault or forcible sex. Counsel expressed concern that the prosecutor had improperly withheld this information and requested a mistrial. The court asked defense counsel why no objection had been raised at the time. Counsel stated: “I’m making my objection now, and it’s based primarily on discovery violations . . . .” He said he was concerned that had he objected, the jury would have thought he was trying to conceal something and that his failure to object was “trial strategy.”
The court explored the defense allegation of withholding discovery further, as from the nature of the questioning, it appeared the prosecutor might have been aware of the information. The prosecutor explained that based on an earlier report, she had expected Pernell to say she had not slept with appellant or had sexual relations with him after the prior abuse incidents. When Pernell testified instead that she had engaged in sexual relations with appellant immediately afterward, the prosecutor asked about force in order to clarify whether the conduct had been consensual. After speaking with Pernell, the prosecutor further explained that Pernell had told no one except a counselor about the sexual incidents because she was embarrassed by them.
The witness had not blurted the information out. In questioning about the February 2005 incident, Pernell said she and appellant had intercourse shortly after she regained consciousness. The prosecutor specifically asked: “Would you characterize that sex as sexual intercourse that you wanted to have?” and “Did you feel forced to have sex with him at that point?” When questioning Pernell about the aftermath of the April 2005 incident, the prosecutor asked whether appellant stayed at Pernell’s house that night, whether they slept together, and whether they had sexual intercourse. When Pernell responded “yes” to those questions, the prosecutor asked whether she characterized the intercourse as “something [she] wanted” or “something [she] felt forced to do.”
The court accepted the word of the prosecutor that she was unaware of the information and denied the request for mistrial. The court offered to tell the jury to disregard the testimony concerning forcible sex because it was irrelevant. Defense counsel rejected that option, explaining that he wanted the opportunity to cross-examine Pernell concerning the allegations of forcible sex. After this hearing, the prosecutor continued the direct examination of Pernell, questioning her concerning the early August 2005 incident and its aftermath, including another incident of anal intercourse to which Pernell stated she had not consented.
The court also offered to hold a hearing to determine whether Pernell told anyone in law enforcement or in the prosecutor’s office about the alleged sexual assaults. Defense counsel agreed to accept the representations of the prosecutor that she had not.
After defense counsel’s cross-examination of Pernell commenced but before he asked any questions concerning the allegations of forcible sex, the prosecutor informed the court that she intended to call Denby, who was expected to testify that she had been previously informed by Pernell of the sexual assault allegations. Defense counsel expressed concern about cross-examining Pernell on this topic without knowing what her friend would say and again asked for a mistrial based on “all this new evidence coming in.” The court denied the motion and allowed the witness to testify. The court explained that defense counsel had “opened the door to this other witness . . . by choosing to cross-examine [on the sexual abuse topic].”
Defense counsel’s cross-examination of Pernell continued. He asked whether appellant had “basically” raped her on three different occasions, based on the three incidents of forcible sex described in her direct testimony, and she said “yes.” She further stated appellant raped her “all the time.” Later, in response to defense counsel’s question concerning whether she had said anything at the preliminary hearing about the alleged sexual assaults, Pernell stated she had told a “counselor” about it.
During the hearing on the defense motion for mistrial based on the initial allegations of sexual abuse, counsel said he would need Pernell’s counselor’s records if the prosecutor asked whether she had told a counselor. The prosecutor agreed not to inquire in that area. After Pernell responded to defense counsel’s question by saying she had told a counselor, several discussions ensued concerning the patient/therapist privilege and whether defense counsel could subpoena Pernell’s therapy records. Pernell ultimately revealed that the “counselor” she referred to was someone from a counseling hotline she spoke to once on the telephone and whose name she could not recall. The court concluded this was not a privileged conversation and allowed defense counsel to examine her concerning it.
During defense counsel’s cross-examination of Pernell, he asked whether Pernell had gone to the residence of appellant’s new girlfriend, intending to inquire about an incident that occurred approximately 11 months after the date the charged offenses occurred. Defense counsel contended the evidence would show that Pernell was motivated by jealousy. The court sustained an objection based on Evidence Code section 352, noting that there was no evidence Pernell and appellant were fighting over a third party at the time Pernell originally made the accusations against appellant.
D. Relevant Argument and Jury Instructions
The jury was given a unanimity instruction which stated: “[Appellant] is accused of having committed the crime of criminal threats in counts 3 and 4. The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction of count 3 and 4 may be based. ¶ [Appellant] may be found guilty if the proof shows, beyond a reasonable doubt, that he committed any one or more of the acts. However, in order to return a verdict of guilty to counts 3 and 4, all jurors must agree that he committed the same act as to each of the counts.”
During closing argument, the prosecutor described the following incidents as providing support for the criminal threat charges: (1) when they first got in into his car, appellant told Pernell, “‘I’m going to “F” you up. . . . “F” my kids, “F” my career, I’m putting it all on the line. Today I’m f’ing you up’”; (2) when they arrived at the corner where Pernell had falsely told appellant there was a suitable motel, appellant said “‘I’m F’ing you up’”; (3) when appellant stopped at the first motel to check the price and locked Pernell in the car, he said “‘if you try to get out, then I’ll do it right here’”; (4) when appellant got back into car and said “this place is too damn expensive for what I’m going to do to you’” She also said “those are the ones that stick out in my mind” and told the jurors that they were free to agree on others.
E. Verdict and Sentencing
The jury found appellant guilty on all counts except count two (vandalism), on which they were unable to reach a verdict.
The court sentenced appellant to the upper term of eight years on count one (kidnapping), one-third the middle term of eight months on count three (criminal threats), one-third the middle term of one year on count five (corporal injury to a cohabitant), plus two years to be served concurrently on count four (criminal threats), resulting in a total term of nine years and eight months. The court stated that the following factors influenced its decision to impose the high term on count one: (1) “the crime did involve great violence, great bodily harm to the victim”; (2) appellant “was armed [with] a baseball bat”; (3) the victim “was particularly vulnerable”; (4) appellant “lured her to an area where he lived . . . in a neighborhood that . . . was friendly to him[,] and then committed the particular acts in this matter”; (5) appellant’s record indicated he “pose[d] a serious danger to society” in that his prior convictions “are numerous and of increas[ing] seriousness”; and (6) appellant’s “prior performance on probation and/or parole has not been very good.”
The probation report indicated that in 1982, appellant, then a juvenile, committed a robbery (§ 211); in 1990, he was convicted of assault with a deadly weapon (§ 245, subd. (a)(1) and probation was imposed but later revoked; in 1994, he was convicted of driving without a license (Veh. Code 12500, subd. (a)); in August 1995, he was convicted of perjury (§ 118) and probation was imposed but later revoked; and in December 1995, he was convicted of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and probation was imposed but later revoked.
At the sentencing hearing, appellant contended that the sentences on the criminal threats and corporal injury to a cohabitant offenses should be stayed under section 654. With respect to the corporal injury offense, the court concluded that the incident at the Motel 6 in which Pernell tried to escape by running down the stairs and was dragged and hit by appellant, “was completely separate from the kidnapping, as well as the criminal threats.”
The court asked the prosecutor to address whether section 654 or Rule 4.425 applied to the criminal threat offenses. The prosecutor argued that the threats “were temporally separated and also separated by objective in that the initial threat . . . was made to the victim after she had been physically kidnapped and was inside of the car. . . . [T]he threat [appellant] made after the victim had tried to convince him to go to a location that she presented to [appellant] as being a location where a hotel was. . . was made as a statement of punishment for her having deceived [appellant].” The prosecutor further argued that another separate threat occurred when Pernell told appellant she was planning on proposing and he accused her of lying and said “‘Fuck that. Fuck my kids. Fuck my job. I’m fucking you up.’”
Rule 4.425 of the California Rules of Court lists criteria for choosing between concurrent and consecutive sentences, including “whether or not: (1) The crimes and their objectives were predominantly independent of each other; (2) The crimes involved separate acts of violence or threats of violence; or (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
After hearing the prosecutor’s argument, the court stated that it still had “trouble distinguishing that the threats have different objectives” and expressed concern that “the threats were continuous, that the threats were designed for one sole purpose, to keep [Pernell] in fear so that he could take her to these motels and take her around the city and keep her under his control.” The court did not, however, stay sentence on either of the criminal offenses under section 654.
DISCUSSION
A. Section 654
Appellant contends that the sentences imposed for both counts three and four (criminal threats) should have been stayed under section 654 because the threats were incidental to the kidnapping, for which he was separately sentenced. Respondent concedes that the punishment on one of the two threat counts should have been stayed, but contends that the criminal threats as a whole involved an objective separate from the kidnapping and, therefore, the punishment imposed on count three (a sentence of one-third the middle term) was appropriate. We agree with respondent that only the punishment on count four should have been stayed pursuant to section 654.
Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The purpose of section 654 “is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute, and thus constitutes more than one crime. The distinct crimes may be charged in separate counts in one proceeding, or may be tried together by consolidation of separate criminal proceedings, and may result in multiple guilty verdicts. But the sentence may be for only one offense . . . .” (3 Witkin & Epstein, Criminal Procedure (3d ed. 2000) Punishment, § 129, pp. 191-192, italics omitted.)
Where the defendant’s actions comprise a lengthy course of conduct, the question arises “[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 . . . .” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Resolution of that question requires inquiry into the defendant’s objective and intent. (People v. Beamon (1973) 8 Cal.3d 625, 638.) “If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Id. at p. 639.)
Determining the defendant’s criminal objectives presents a question of fact and the trial court’s finding, whether explicit or implicit, that multiple objectives existed will, if supported by substantial evidence, be upheld on appeal. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466; People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Green (1988) 200 Cal.App.3d 538, 543-544.) To support the trial court’s finding, “‘there must be evidence to support [that] the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Appellant identifies as his sole objective and intent “to scare Pernell into submission so that he could control her and their relationship.” In an attempt to support his argument that the kidnapping and threats sprang from a single objective and intent, appellant correctly avers that “the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety.” (People v. Barnett (1998) 17 Cal.4th 1044, 1159; see People v. Stankewitz (1990) 51 Cal.3d 72, 101 [as long as the kidnapper holds the victim, his or her safety is “continuously in jeopardy” because “[a]t any point in the journey, at any . . . stop[] . . . in an unguarded moment, the victim might [manage] to escape or signal for help”].) Under this principle, the crime of kidnapping Pernell commenced at 11:00 a.m. and did not end until the police ordered appellant to leave her home, many hours later. Appellant contends that the threats took place during the course of the kidnapping and were used to control Pernell, and thus were incidental to the kidnapping for purposes of section 654.
That appellant had an overall objective of controlling Pernell and the relationship did not render him incapable of committing separate and independent criminal acts to attain that objective. Nor did the fact that the original crime of kidnapping was ongoing prevent appellant from forming and carrying out a new and distinct criminal objective. His actions in repeatedly terrorizing Pernell during the course of the kidnapping by making gratuitous threats were not incidental to an ongoing crime because they were of no assistance in completing the original crime or criminal objective. The principle that a distinct criminal objective can arise during the course of an ongoing crime and support a separate punishment is illustrated by People v. Nguyen (1988) 204 Cal.App.3d 181, in which the defendant shot one victim during a store robbery after the victim obeyed instructions to go into the back room and lie down on the floor. The court concluded the act “constituted an example of gratuitous violence against a helpless and unresisting victim which has traditionally been viewed as not ‘incidental’ to robbery for purposes of Penal Code section 654.” (204 Cal.App.3d at p. 190.) Rejecting the defendant’s argument that the victim may have been shot “in order to eliminate him as a witness or to facilitate the assailants’ escape,” the court said: “[A]t some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” (Id. at p. 191; accord People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [beating unresisting, feeble victim senseless with two-by-four prior to stealing his Walkman not “merely incidental to the robbery,” and evidenced separate intent to commit murder]; see also People v. Foster (1988) 201 Cal.App.3d 20, 27-28 [locking victims into store cooler after money was in robbers’ possession was “not necessary or incidental to committing the robbery” and, therefore, robbers were properly punished for both robbery and false imprisonment].)
Here, appellant held multiple distinct criminal objectives. One was to kidnap Pernell, which he achieved not by verbal threats but by physically forcing her into his car and physically preventing her escape. During the course of the kidnapping, appellant threatened Pernell multiple times but only once did the threat uttered facilitate the kidnapping, by communicating to her that an attempt to get away would lead to injury. When appellant went into the first motel to check the price, he told Pernell if she got out of the car, “‘it’s going to go down right here.’” Otherwise, the threats were gratuitous and unrelated to the objective of keeping Pernell from escaping. Far from assisting the kidnapping, such threats could only have encouraged Pernell to resort to desperate measures to get away.
When Pernell ran to the porch of the neighbor’s house to seek assistance, appellant grabbed her by her shirt and neck to get her into the car. When she refused to go upstairs to the room at the Motel 6, he physically manipulated her by pulling on her belt loop and hitting or jabbing her to get her to move forward. When she made a break at the Motel 6 by running down the stairs and screaming for help, appellant did not issue threats to regain control, but again used purely physical means to bring her back to the room.
The second time appellant left Pernell alone in the car, he warned her not to “try nothing slick,” but made no explicit threat.
For example, when appellant already held Pernell captive in his car, he said, “‘Fuck my five kids. Fuck my career. Fuck my life. I’m putting it all on the line for your ass today.’” “‘I’m fucking you up.’” He issued additional threats while looking for a motel, after they arrived at the location suggested by Pernell and found no motel, when they were inside the Motel 6 room, and when they arrived at Pernell’s house.
On this record, where only one of the threats in evidence was potentially incidental to the kidnapping, the trial court could reasonably find that the remainder “express[ed] a different and . . . more sinister goal than mere successful commission of the original crime” (People v. Nguyen, supra, 204 Cal.App.3d at p. 191), namely to intensify an already terrifying experience. Because the jury was allowed to choose which of the threats supported counts three and four, conviction on one of the counts may have been based on the threat made to Pernell at the first motel to prevent her escape. The court expressed concern about imposing multiple punishments for the two criminal threats counts, but did not follow section 654’s mandate. Rather than staying punishment on one of the counts, the court imposed a concurrent sentence on count four. As respondent concedes, this was error. The sentence on count four should have been stayed.
Our conclusion is supported by People v. Surdi (1995) 35 Cal.App.4th 685 where the court found that certain assaults committed during the course of a kidnapping were incidental and other similar acts were not. There, the defendant was part of a group of men who kidnapped the victim in order to injure him. During the kidnapping, the victim was stabbed on multiple separate occasions, the final occasion resulting in his death. The court held that “[t]he fact [the defendant] assisted multiple stabbing episodes, each of which evinced a separate intent to do violence, precludes application of section 654 with respect to the offenses encompassed within the episodes. Therefore, [the defendant] was properly punished for committing kidnapping and mayhem . . . .” (35 Cal.App.4th at pp. 689-690.)
B. Court’s Rulings on Evidence and Mistrial
Appellant contends the court erred in denying his request for a mistrial after Pernell “blurted out in open court in front of the jury that appellant had also forced her to have sex [and] anal sex . . . .” He contends that this error was compounded by the court’s decision to permit Denby to testify and the decision disallowing defense counsel’s questioning of Pernell about her contact with appellant’s current girlfriend.
First, with regard to Pernell’s testimony, a criminal conviction may not be reversed based on erroneous admission of evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) Contrary to appellant’s assertion, Pernell did not “blurt[] out” the testimony concerning forcible sex. The testimony was in response to specific questioning. When Pernell said she and appellant had had intercourse shortly after the choking incident in Detroit, the prosecutor asked: “Would you characterize that sex as sexual intercourse that you wanted to have?” and “Did you feel forced to have sex with him at that point?” When questioning Pernell about the aftermath of the April 2005 incident, the prosecutor first asked Pernell whether appellant stayed at Pernell’s house that night, whether they slept together, and whether they had sexual intercourse, before inquiring whether Pernell characterized the intercourse as “something [she] wanted” or “something [she] felt forced to do.” On both occasions, defense counsel had ample opportunity to object before any answer was given, but failed to do so. Later, he explained to the court that he was concerned that objections would highlight the testimony. On further reflection, he decided it would be helpful to the defense to leave the testimony in evidence and cross-examine Pernell concerning the new accusations, hoping to cast doubt on her entire testimony. Having failed to object for strategic reasons, appellant cannot now claim that admission of the evidence constitutes reversible error. (See People v. Von Villas (1992) 11 Cal.App.4th 175, 237 [defendant’s tactical decision to refrain from objecting to certain evidence counsel believed could be used to impeach prosecution witness constituted waiver of issue of admissibility on appeal].)
Appellant contends that because this was a case of “unfair[] surprise,” the trial court erred in failing to declare a mistrial. A witness’s volunteered statement can provide the basis for a mistrial. (People v. Wharton (1991) 53 Cal.3d 522, 565; cf. People v. Rhinehart (1973) 9 Cal.3d 139, 152, overruled in part on another ground in People v. Bolton (1979) 23 Cal.3d 208, [witness’s inadvertent answer not sufficiently prejudicial to justify mistrial].) As we have said, however, Pernell’s testimony was not “blurted out,” but came into evidence as the result of a string of questions to which, for tactical reasons, counsel chose not to object. Moreover, a mistrial should be granted only “‘if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]’” (People v. Wharton, supra, 53 Cal.3d 565, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) “‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’” (Ibid.) Here, the court concluded that due to the nature of the testimony, an admonition to disregard it would cure any prejudice. The court’s conclusion was not unreasonable. The testimony was in no way sensational. Pernell had simply characterized the sexual acts as something she did not want to do or felt forced to do. Defense counsel rejected the court’s offer, deciding that the better tactic was to cross-examine Pernell on the topic, convince the jury that the new accusations were recent fabrications, and thereby undermine the credibility of the key prosecution witness. That a defense trial strategy did not ultimately prove successful is no basis for reversal. (People v. Von Villas, supra, 11 Cal.App.4th 175.)
As for appellant’s contention that the court should not have permitted Denby to testify that Pernell had confided in her about the sexual abuse, we agree with the trial court’s analysis. Once a witness’s credibility has been impeached, the witness may be rehabilitated through evidence of prior consistent statements. (Evid. Code §§ 791, 1236.) Defense counsel opened the door by attempting to impeach Pernell’s credibility through cross-examination about the sexual abuse topic.
With respect to the evidence defense counsel hoped to elicit concerning Pernell’s contact with appellant’s new girlfriend, appellant contends that the evidence would have shown that Pernell was jealous of appellant’s new relationship and that she was biased and had a motive to fabricate. The trial court sustained an objection to the questioning under Evidence Code section 352. Relevant evidence is subject to exclusion under section 352 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.” The trial court has considerable discretion under section 352 to determine whether introduction of a marginally relevant matter will lead to undue consumption of time. (People v. Milner (1988) 45 Cal.3d 227, 239.) A trial court’s broad discretion to determine whether to admit or exclude evidence under section 352 will not be overturned absent abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) The trial court may properly exclude evidence in defendant’s favor where it is marginally relevant and of limited probative value. (People v. Milner, supra, 45 Cal.3d at p. 240, fn. 11.) The trial court here determined that the proffered evidence was of limited value because Pernell’s alleged encounter with appellant’s new girlfriend took place nearly a year after the incident and because there was no evidence of jealousy or motive to fabricate at the time Pernell made the original accusations to law enforcement officials. We find no abuse of discretion in that ruling.
Finally, appellant contends that the cumulative impact of the erroneous trial court’s erroneous rulings warrants reversal. As we conclude no error occurred in any of the rulings cited by appellant, the cumulative impact argument also fails.
C. Imposition of Upper Term
The court imposed the upper term for the kidnapping offense, citing the following factors to support its decision: (1) “the crime did involve great violence, great bodily harm to the victim”; (2) appellant “was armed [with] a baseball bat”; (3) the victim “was particularly vulnerable”; (4) appellant “lured her to an area where he lived . . . in a neighborhood that . . . was friendly to him[,] and then committed the particular acts in this matter”; (5) appellant’s record indicated he “pose[d] a serious danger to society” in that his prior convictions “are numerous and of increas[ing] seriousness”; and (6) appellant’s “prior performance on probation and/or parole has not been very good.”
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (530 U.S. at p. 490, italics added.) In Blakely v. Washington (2004) 542 U.S. 296, the court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], the court held that California’s former determinate sentencing law (DSL), under which appellant was sentenced, violated a defendant’s federal constitutional right to a jury trial by permitting the trial judge to make factual findings that subjected the defendant to an upper term sentence. (Id. at p. __ [127 S.Ct. at p. 871].) The court found that the middle term prescribed in the DSL, not the upper term, was the relevant statutory maximum for purposes of determining the constitutionality of a sentence imposed. (Ibid.) Based on these authorities, appellant contends that the trial court erred in imposing the upper term sentence for the kidnapping offense.
Appellant recognizes that in People v. Black (2007) 41 Cal.4th 799 (Black II) our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at pp. 812, 813.) Appellant further acknowledges that the court relied on at least one aggravating circumstance established in the accordance with Apprendi -- appellant’s recidivism. Nevertheless, appellant contends that the court erred because (1) one of the prior convictions listed in the probation report on which the trial court relied was a juvenile adjudication, which should not be deemed a prior conviction for Apprendi purposes; (2) appellant’s conduct on parole or probation, which the court specifically cited to support the sentence, is not related to recidivism for Apprendi purposes; and (3) as the court cited multiple factual findings to support the sentence, we cannot presume it would have reached the same decision to impose the upper term had it been aware that such findings were improper under Apprendi. We are not persuaded.
1. Prior Juvenile Conviction
In United States v. Tighe, the Ninth Circuit held in a split opinion that the “prior conviction” exception to Apprendi’s general rule did not include juvenile adjudications. (United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194.) The holding in Tighe has been rejected by the majority of both federal and state appellate courts. In People v. Bowden (2002) 102 Cal.App.4th 387, this court analyzed whether a prior juvenile adjudication could be used to increase a sentence under the Three Strikes law, and found the reasoning in Tighe “erroneous[].” (102 Cal.App.4th at p. 393.) Noting that in California, juvenile offenders are afforded most of the constitutional protections afforded an adult offender -- notice of charges, right to counsel, a privilege against self-incrimination, right to confrontation and cross-examination, double jeopardy, proof beyond a reasonable doubt -- we concluded instead that prior convictions could properly be treated as sentencing factors whenever the defendant “‘received all the process that was due when he was convicted of the predicate crime.’” (Ibid., quoting United States v. Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) “‘For adults, this would indeed include the right to a jury trial. For juveniles, it does not.’” (102 Cal.App.4th at pp. 393-394, quoting United States v. Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).) Accordingly, as “‘a juvenile constitutionally -- and reliably [citation] -- can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentence following a later adult conviction.’” (102 Cal.App.4th at p. 392, quoting People v. Fowler (1999) 72 Cal.App.4th 581, 585-586.)
See, e.g., United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190-1191; United States v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1033; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 833-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1079. Although the issue addressed in Andrades, Lee and Smith was whether a prior juvenile adjudication could be utilized to increase an adult criminal sentence under the Three Strikes law, resolution of that issue required essentially the same analysis as resolving whether the adjudication could be used to enhance a sentence. (See also People v. Palmer (2006) 142 Cal.App.4th 724, 733 [Nevada convictions for driving under the influence could be used to enhance a sentence, although there had been no right to jury trial in the Nevada proceedings.].)
In his opening brief, appellant relied on People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847, to support the proposition that juvenile priors cannot be used to increase an adult defendant’s sentence. As the Supreme Court has since granted review in Nguyen, appellant acknowledges it is no longer reliable authority. Until directed to do otherwise by the Supreme Court, we continue to adhere to the views expressed in Bowden that the absence of a jury does not undermine the reliability of a juvenile adjudication, and that there is, therefore, no constitutional impediment in using such an adjudication to support increasing the criminal sentence of an adult. Moreover, as appellant’s record included numerous adult convictions, these convictions alone rendered him eligible for the upper term sentence.
2. Conduct on Probation or Parole
Apprendi, Blakely, and Cunningham all recognized that the fact of a prior conviction represents an exception to the rule that facts used to increase a sentence must be submitted to the jury or proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 873].) Our Supreme Court has said that the prior conviction or recidivism exception “is not limited simply to the bare fact of a defendant’s prior conviction.” (People v. McGee (2006) 38 Cal.4th 682, 704, italics omitted.) Apprendi “does not preclude a court from making sentencing determinations related to a defendant’s recidivism” (id. at p. 707), but instead permits “‘the type of inquiry that judges traditionally perform as part of the sentencing function’” (id. at p. 709, quoting People v. Kelii (1999) 21 Cal.4th 452, 456).
Consistent with this view, California courts have interpreted the prior conviction or recidivism exception broadly to include all “matters relating to ‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221 [applying exception to judicial finding that defendant had served prior prison terms]; accord People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514-1515 [applying exception to judicial finding that defendant had served prior prison term and that his prior adult convictions were numerous].) In Black II, the court agreed with this line of authority, holding that a jury need not be asked to decide whether a defendant’s prior convictions were numerous or of increasing seriousness because determination of the number, dates, and relative seriousness of prior convictions was a “type of determination . . . ‘quite different from the resolution of issues submitted to a jury, and . . . one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820, quoting People v. McGee, supra, 38 Cal.4th at p. 706.) In People v. Yim (2007) 152 Cal.App.4th 366, 371, the court specifically held that the defendant’s parole status and performance on parole are recidivism-related matters and thus fall under the exception.
Based on these authorities, we conclude that the trial court did not err in taking appellant’s conduct on probation into account in making its sentencing determination.
3. Use of Proper and Improper Factors
Appellant contends that even if the court relied on one or two proper factors, the court’s comments at the sentencing hearing indicated reliance on a number of factual findings that were not proper Apprendi factors, such as great bodily harm to the victim and the victim’s particular vulnerability. (See People v. Sandoval (2007) 41 Cal.4th 825, 837-838 [trial court’s reliance on its own finding of particular vulnerability of the victim improper].) As we have said, Black II specifically held that a single, properly-established aggravating circumstance rendered the defendant eligible for the upper term sentence and accordingly, “any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at pp. 812, 813.) Here, there were two properly established, recidivism-related factors cited by the trial court. Appellant was thus rendered eligible for the upper term sentence. The court was, therefore, free to base its final determination on additional factors not permitted by Apprendi. (People v. Landaverde (2007) 157 Cal.App.4th 28, 33-34 [court’s reliance on judicial fact-finding in determining sentence not ground for reversal where court also relied on at least one factor admitted by defendant].)
DISPOSITION
The judgment is modified by staying the sentence on count four. In all other respects the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., WILLHITE, J.