Opinion
H043453
09-06-2018
THE PEOPLE, Plaintiff and Respondent, v. SCOTT CHARLES STURK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. F26257, M73933)
I. INTRODUCTION
Defendant Scott Charles Sturk appeals after a jury found him guilty of two counts of aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)), four counts of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), two counts of spousal rape by force (§ 262, subd. (a)(1)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), forcible sodomy (§ 286, subd. (c)(2)), attempted lewd conduct on a minor (§§ 664/288, subd. (a)), and communicating with a minor with the intent to commit a sex offense (§ 288.3, subd. (a)). The jury also found regarding seven of the forcible sex offenses that defendant kidnapped the victim to commit a felony sex offense. (§ 667.8, subd. (a).) The trial court sentenced defendant to serve two consecutive life terms plus a consecutive determinate term of 43 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) there was insufficient evidence to support his convictions of two counts of aggravated kidnapping because his conduct constituted one continuous offense; (2) the trial court erroneously instructed the jury on the crime of aggravated kidnapping and the allegation that he kidnapped the victim to commit a felony sex offense; (3) the trial court abused its discretion when it permitted the prosecution's expert witness, a SART nurse, to testify that in her opinion the victim's injuries were consistent with the history the victim related; (4) the trial court committed several sentencing errors; and (5) the abstract of judgment must be amended to correct two clerical errors.
The term "SART" commonly refers to "Sexual Assault Response Team." (See, e.g., People v. Taylor (2010) 48 Cal.4th 574, 588; People v. Uribe (2008) 162 Cal.App.4th 1457, 1463 (Uribe).)
The Attorney General also raises several sentencing errors.
For reasons that we will explain, we will reverse the judgment and remand the matter for resentencing.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was tried on two matters that were joined for trial, one of which involved offenses against a minor, A.O., on May 7, 2013, and the other of which involved offenses against his wife, Nicole B., on January 29, 2014. The crimes against Nicole B. occurred over the course of a day primarily at three locations: inside of a condominium belonging to Nicole B.'s mother; inside of the couple's RV when it was parked by the condominium; and inside of the RV as it traveled to and was parked at a church parking lot.
A. Offenses Against a Minor (Case No . M73933)
On May 7, 2013, A.O., age 10, and her brother J.O., age 8, lived next to a Goodwill trailer in Watsonville. The trailer was located in the back of a church parking lot.
That day, when A.O. and J.O. were outside playing, A.O. asked a man working at the trailer if he had a radio. The man replied that there was a radio in the back of the trailer. J.O. told A.O. not to go into the trailer, but then J.O. saw a helmet he wanted inside the front of the trailer. J.O. asked the man if he could have the helmet, and when the man said he could, A.O. went to get it.
The man made hand gestures that scared A.O. and indicated to her that he wanted to grab her. The man had his palms up and was opening and closing his fingers. The man said, " '[Y]ou know what that means,' " which made A.O. think he wanted to touch her somewhere and made her feel uncomfortable. J.O. heard the man ask A.O. if he could "grab it," and saw the man making grabbing gestures with his hands. A.O. and J.O. left the trailer and ran inside to tell their mom.
After Watsonville Police Officer Sergio Banuelos spoke with A.O.'s and J.O.'s mother, he contacted defendant at the Goodwill trailer. Defendant understood that the officer wanted to talk to him about his interaction with the children.
Officer Banuelos's testimony did not include the details of his conversation with defendant.
B. Offenses Against Defendant's Wife (Case No . F26257)
1. Nicole B.
Nicole B. met defendant in a college math class in the fall of 2013. One day, defendant approached Nicole B. while she was waiting at a bus stop in front of the college. Defendant told Nicole B. that she was pretty and that he wanted to take her on a date. Nicole B. could tell that he was pretty intoxicated. She felt flattered, but also thought he was being a "bit aggressive" because "he was . . . coming on really strong." Nicole B. was very shy and naïve, in part because she had participated in an independent school study similar to homeschooling in junior high and high school. She also had low self-esteem. She had never had a boyfriend before and was afraid to date, and she had decided to wait until marriage to have sex. Nicole B. was 19 years old; defendant was 52, although he originally told her he was 42. Nicole B. was about 5 feet 5 and one-half inches tall; defendant was approximately 6 feet 2 inches tall and about 100 pounds heavier than Nicole B..
Defendant followed Nicole B. onto and off of the bus, and they wound up going to a restaurant together. Defendant ordered a lot of drinks, and told Nicole B. that he wanted to get her drunk and take her to a hotel room. Despite defendant's aggressiveness, Nicole B. developed a crush on him because "he thought that [she] was pretty enough to want to date." She felt it was "nice to have someone who wanted to be with [her]."
They began spending time together every day, and defendant continued to be aggressive with Nicole B. He would try to touch her by putting his hand in her shirt or between her legs. She would fight him off, and defendant would tell her that they were going to get married. About two weeks after defendant followed Nicole B. onto the bus, they got married, although Nicole B. did not really want to. She felt pressured into marrying defendant because he would tell her that she could not betray him. She felt she had no choice but to go through with the marriage because defendant was so aggressive and overbearing.
After they were married, Nicole B. continued to live with her mother in Aptos while defendant lived at a sober living environment about a block away, but they saw each other every day. At first Nicole B. fought off defendant's advances, but they eventually had sex although she did not want to and told him numerous times to stop. She screamed and told him that it was painful, but he pinned her down and overpowered her. He also told her that she had to do what he said and had to have sex with him because she was his wife. Nicole B. thought that because they were married, it was not rape. Sometimes, though, Nicole B. would tell defendant that he should continue to have sex with her even when she screamed "no," so that he could get it over with.
At some point, defendant moved out of the sober living environment, and he and Nicole B. began living together in an RV. Although the couple had some good times together, defendant was belligerent and drunk on a daily basis. Nicole B. thought defendant was an alcoholic. Nicole B. felt trapped because defendant was very possessive and isolated her from her family and friends. Defendant punished her if she associated with other people and slapped her face or choked her if she said something he did not like.
Early in the afternoon of January 28, 2014, the couple was at a Quik Stop when a group of girls walked by who Nicole B. thought were around 15 years old. Defendant began making sexual sounds that indicated his interest in them. When Nicole B. told defendant that the girls were younger than her, defendant said, " 'I don't care, they're hot, I would love to put it in them [and] sleep with them . . . .' " The girls' youth seemed to excite him.
Once they were inside the RV, Nicole B. asked defendant about his interest in children, and defendant said that he liked to have sex with 13-year-old girls because they liked it. Nicole B. began surreptitiously recording defendant on her cell phone, and he told her about a girl between the ages of 12 and 14 whom he had raped. He also described other sex acts he had performed on children. Defendant wanted Nicole B. to help pick up a little girl for him, and he told her that he married her because she looked a lot younger than she was and because she was a virgin like a child. Nicole B. planned to take the recordings to the police.
Nicole B. became terrified of defendant and afraid for her life, and wanted nothing to do with him sexually. Defendant held a knife in his hand and told Nicole B. not to tell anyone what he had said, which made her think he was going to kill her and that there was no way he would let her go. Defendant repeatedly tried to put his hands between Nicole B.'s legs and rub her vagina, and he told her she could not say no to him because they were married. Nicole B. pushed him away.
Around midnight, the couple went to a liquor store on 41st Avenue. Nicole B. texted her mother to come get her because she was scared to stay with defendant in the RV. Nicole B. tried to sneak out of the RV when her mother came to get her around 2:00 or 3:00 in the morning, but defendant woke up and told her there was " 'no way [she was] leaving.' " Nicole B. made up an excuse and left with her mom.
a. Counts 1-2
Nicole B. fell asleep in her mother's room, woke up around 9:00 a.m. on January 29, 2014, and started getting ready for the day. Her mother had already left for work. When Nicole B. was washing her face, she turned around and saw defendant in the doorway of her mother's bedroom. He did not have a key to the house or permission to be there. Defendant told her that they were going to have sex and that she did not have a choice. Nicole B. said, " 'No way. We are not gonna have sex.' " Defendant wrapped his arms around Nicole B. and forced her onto her mother's bed while she resisted. Defendant told Nicole B. she had to let him have sex with her, but Nicole B. repeatedly told defendant " 'no' " and to stop.
Nicole B. tried to fight defendant off and was able to scratch him with her wedding ring, but he pinned her down and choked her and was able to lower her pants. Pushing on her with all of his strength, defendant digitally penetrated Nicole B.'s vagina at least 10 times and her anus several times. He also pressed his penis past her labia and past the cheeks of her buttocks, but his penis did not penetrate her anus. At some point, defendant forced his tongue inside of Nicole B.'s mouth, and Nicole B. bit defendant's lip, making him bleed. Defendant then got up, and with Nicole B. yelling at him to go, he left.
b. Counts 3-5
Defendant returned later that day to take Nicole B. to her 6:00 o'clock class. They began talking inside the RV while it was still parked on the street by Nicole B.'s mother's house, and defendant asked Nicole B. if he could have sex with her friend Kelli, who was 14 or 15 years old. When Nicole B. said "no," defendant told Nicole B. that she had to have sex with him. Nicole B. responded, " 'No way, we're not gonna have sex.' " Nicole B. was sitting in the front passenger seat, and defendant ordered her to go up to the RV's upper bed cabin. When Nicole B. refused, defendant grabbed her by her hair, pulled her out of the seat, and dragged her approximately 12 to 15 feet down the RV's hallway to the very end of the RV.
Defendant pinned Nicole B. down with his arm and elbow on her neck, so she could not move or breathe or make any noise. Defendant said, "[W]hat now, bitch," pulled Nicole B.'s pants down, and put his penis inside her vagina twice. At some point, Nicole B. was able to stand up, but defendant grabbed her and forced her into the upper cabin. Defendant then orally copulated Nicole B. and digitally penetrated her vagina while she told him not to. Afterwards, defendant told Nicole B. not to move, and he went to smoke a cigarette. Nicole B. heard him lock the doors to the RV.
c. Counts 6-11
Although one of Nicole B.'s legs was in a cast and she was very scared, she jumped down from the top cabin, slid into the passenger seat, unlocked the door, and took off running as fast as she could. Nicole B. was able to run about a block, but defendant realized she had gotten out and chased after her in the RV. Once he caught up to her, he yelled at her to get back inside.
When Nicole B. refused, defendant exited the RV, picked her up, forced her into the passenger seat, and slammed the door. A woman who saw what happened confronted defendant, and Nicole B. slipped out of the RV again. Defendant told Nicole B. that she had to get back in the vehicle, and Nicole B. complied because she felt she had no choice. Defendant told her that he was going to take her someplace where she could not " 'do that again.' "
Defendant drove them to the parking lot of a church in Aptos, parked the RV, and began threatening Nicole B. Defendant told Nicole B. to get into the upper cabin, and she complied because was scared. She began to repeatedly call 911 while trying to hide her phone. She hoped the police would overhear them and determine their location. Defendant pinned Nicole B. down as she repeatedly told him "no," and eventually he ripped her clothes off. Nicole B. was crying and screaming but no one could hear her from the upper cabin. Defendant placed Nicole B.'s hand on his penis and moved her hand up and down. He then orally copulated her vagina and anus; digitally penetrated her vagina; and penetrated her vagina and anus with his penis.
Afterwards, defendant told Nicole B. that he was going to take her to a school so she could "bring him a new girl to fuck." He drove them to a preschool, and they noticed a police car behind them once the RV was stopped. Defendant said, " 'I'm going to jail.' "
2. Johneen Del Valle
Johneen Del Valle testified that she had been sitting in her parked car around 3:00 p.m. on January 29, 2014, typing up her nursing reports, when she saw movement in the back of a nearby RV. At some point, she saw a woman get into the front seat and noticed that the woman was pulling her shirt down and trying to button her pants. The woman then got out of the RV, quickly walked toward Del Valle, and stopped in front of another car while she frantically tried to use her phone. Next, Del Valle saw a man come out of the RV who was still buttoning his pants. He walked toward the woman. Although Del Valle could not hear what the man was saying, she realized he was speaking in a raised voice and she could tell that the woman was screaming "no" in response. The man then got back into the RV, drove it forward approximately 15 feet, pulled the vehicle up to the woman at an angle, and got out again. The man said something to the woman and when she did not respond, he grabbed her and pulled her into the vehicle while she kicked.
Del Valle got out of her car to confront the man. She made eye contact with the woman, who looked fearful, but after the man ordered the woman to tell Del Valle that she was his wife, the woman bowed her head, defeated. The woman walked slowly back to the RV with the man. The man got back into the driver's seat and drove away. Del Valle called 911 and gave the police the license plate number of the RV.
3. Deputy Jeffrey Simpson
On January 29, 2014, Santa Cruz County Sheriff's Deputy Jeffrey Simpson was dispatched on a 911 call where a man and a woman could be heard talking before the caller hung up. Deputy Simpson determined that the cell phone used to call 911 was located near a college. He then called the phone number associated with the 911 call, and a woman answered who was crying. The deputy got no response when he tried to talk to her, and he surmised that the phone had been put down because he could hear a man and a woman talking. He also heard yelling and screaming before the call terminated.
Deputy Simpson was aware of an earlier 911 call that reported a man pushing a woman into an RV on Willowbrook Lane, also near the college. Based on that information, he ran the partial license plate number given by that 911 caller, and determined that the vehicle was registered to "Scott Sturk." Deputy Simpson searched the area for the RV, and happened upon it while it was waiting at a stoplight. He initiated a traffic stop, and found defendant in the driver's seat with Nicole B. beside him in the passenger seat. Nicole B. looked scared and was reluctant to talk to the deputy. She did not want defendant to know she had called 911.
4. SART Nurse Catherine Bautista
Sexual assault forensic examiner Catherine Bautista examined Nicole B. and defendant later that day. Bautista observed that Nicole B.'s clothing and underwear were torn. Bautista's examination of Nicole B. revealed numerous scratches and bruises to Nicole B.'s arms, legs, and upper back. There was also bruising to Nicole B.'s face, a scratch on her neck, and tenderness to her scalp. Bautista found injuries to Nicole B.'s hymen, labia majora, labia minor, vaginal vestibule, perineum, and anus, and Nicole B.'s vagina was tender. Bautista determined that the injuries to Nicole B.'s genitalia were consistent with forceful attempts to penetrate; Nicole B.'s other injuries were consistent with blunt force trauma.
Although defendant told Bautista that he did not have any injuries, Bautista found several scratches on defendant's stomach that were consistent with getting scratched by a ring. Bautista also observed scraped and reddened skin on defendant's knuckles, fingers, and right elbow.
C. Evidence of Prior Domestic and Sexual Violence
1. Janice K. in 2001
Janice K. met defendant outside a Safeway store in Scotts Valley in 2001, about two years after her husband had unexpectedly passed away. She found defendant very attractive, talkative, and friendly, and they became friends. At some point, their relationship became intimate.
In the beginning, the sex was consensual, but one day, defendant told Janice K. that he wanted her to perform oral sex on him. When Janice K. refused, he forced her to orally copulate him. This happened many times, but Janice K. did not try to resist because she was scared. Janice K. told defendant that she did not like it, but defendant laughed and did not care.
Four to six weeks into their relationship, defendant expressed an interest in the five-year-old granddaughter of Janice K.'s housemate. Defendant told Janice K. that "he wouldn't mind fucking [the girl]." Janice K. thought defendant had consumed too many beers and was just making a disgusting remark, but he continued to talk about how cute the girl was. Janice K. told him that the remarks were not funny, but defendant did not seem to care.
Defendant would also comment on the children he saw on television. He talked about how cute they were and how much he would like to have sex with them. He also "eyeball[ed]" young girls near a playground and said "[h]e wanted to fuck 'em." Defendant spoke of having Janice K. lure children for him. Janice K. found the comments alarming. Defendant told her not to tell anyone about his interest in children.
One day, defendant brought his dog over to Janice K.'s house against her wishes. A fight ensued between defendant's dog and the black Labrador who lived at the property. When Janice K. tried to separate the dogs, defendant slapped her. She went to the ground and defendant kicked her in the stomach. Janice K. told defendant she was calling the police, and defendant said he would kill her. When a police officer interviewed her, Janice K. told the officer that defendant forced her to have sex with him four to five times over the previous six months.
2. Priscilla B. in 2010
On December 24, 2010, Lakewood (Colorado) Police Officer Michelle De Leon responded to a report of domestic violence. When she arrived at the scene, she heard a man and woman yelling. Officer De Leon located where the sound was coming from, and looked through a window to see defendant straddling a woman who was lying face down on the ground. Defendant was slamming the woman's head into the concrete floor and the woman's head was bobbing up and down. Officer De Leon ordered defendant to get off of the woman, and he complied. Officer De Leon contacted the woman, Priscilla B., who was very upset and had a swollen left eye and forehead. Priscilla B. told her that defendant was her boyfriend of seven years; they had been drinking that night; and they got into an argument because a friend of defendant's wanted him to pick up prostitutes. During the argument, defendant shoved Priscilla B. to the floor.
D. Defense Case
1. Katherine Wolf
On November 4, 2013, while working as a county clerk, Katherine Wolf issued a marriage license to defendant and Nicole B. Wolf testified that clerks had the authority to deny marriage licenses if they observed something that appeared untoward. Wolf stated that she would not issue a license if she believed an individual was being forced into marriage.
2. Tricia Webber
Tricia Webber was the county clerk who married Nicole B. and defendant in November 2013. It did not appear to Webber that either Nicole B. or defendant was being forced to get married. Nicole B. seemed giddy; Webber remembers her giggling.
3. Judy Stewart
Forensic toxicologist Judy Stewart tested the blood that was drawn from defendant at 7:48 p.m. on January 29, 2014. Stewart determined that on that date and time, defendant's blood alcohol concentration was 0.20 percent. Defendant's blood did not test positive for any controlled substances. Stewart stated that she would expect a person with a 0.20 percent blood alcohol concentration to experience some level of alcohol impairment.
Stewart estimated that at 3:15 p.m. on January 29, 2014, defendant's blood alcohol concentration would have been between 0.26 and 0.29 percent, if she assumed defendant's absorption of the alcohol was complete at that time. Stewart testified that the blood alcohol concentration that is indicative of alcohol impairment varies among individuals, but ranges anywhere from 0.09 percent to 0.25 percent. The higher the blood alcohol concentration, the higher the impairment to one's judgment and cognitive reasoning.
4. Defendant
a. Nicole B.
Defendant stated that he met Nicole B. in a college math class in August 2013 and became interested in her a month later when she began sitting next to him. One day, when defendant had been drinking, Nicole B. boarded a bus he was on and they struck up a conversation. Defendant told her that he " 'would love to have a girl like [her],' " and she told him that she would be his girlfriend and agreed to have dinner with him. Defendant continued to drink throughout their date and gave Nicole B. alcohol, although he was aware that she was under 21 years old. At some point, defendant told Nicole B. that he was 42 years old, but he was really 52. Nicole B. eventually learned defendant's true age, but she said it did not matter.
Defendant testified that about a week after their date, defendant saw Nicole B. and apologized " 'for being inappropriate with [her].' " She seemed to still like him, and they began to spend every day together. Nicole B. told defendant that she was a virgin and made it clear there would be no sex before marriage, so they decided to get married. He thought Nicole B. loved him. They spent every night together after they got married. At first, they did not have sex because it was painful for Nicole B. and she would tell him to stop, which he would because he wanted to wait for her to be ready. Sometimes, though, Nicole B. would tell him that " '[i]t has to get done . . . . We have to consummate our marriage,' " and that he should continue to "do it" whether she was yelling or not. Another time, Nicole B. told him that if he were "a real man," he would do it. Two months into their marriage, they had sex, although they had oral sex before that. Defendant stated that Nicole B. continued to love him during the span of their marriage because she would tell him so and showed him a lot of affection. Defendant purchased a 24-foot RV at the end of November, and they stayed there together every night.
Defendant stated that on either January 27 or January 28, 2014, he was drinking beer and decided to get some whiskey so Nicole B. would drink with him. Once he started drinking the whiskey, "he was on a drunk" for several days, meaning he drank all day, passed out at night, woke up very early, and began drinking again. Defendant testified that he did not realize Nicole B. was recording him on January 28. Defendant stated that he had been feigning an interest in children when Nicole B. recorded him because Nicole B. enjoyed it and it was "a form of sex play for [them]." Defendant testified that he and Nicole B. did not have any kind of sexual contact on January 28.
Defendant stated that the next morning, he drank a couple of 24-ounce Budweisers when he woke up. Around 8:30 a.m., he went to Nicole B.'s mother's condominium to see Nicole B. because he knew she was mad at him. He let himself inside using the key the family kept hidden underneath a hose bib. Once inside, he tried to talk to Nicole B. and kiss her, but she bit his lip. Defendant stated that he touched her genitals with his hands, but he did not think that he penetrated her vagina. They did not have intercourse. He could not remember whether they had oral sex. He could tell that Nicole B. probably did not want to have sexual contact with him because she was mad. He stated that he was forcing himself on her, but that "[i]f she said no, [he] stopped."
Defendant testified that after Nicole B. bit his lip, he went to a gas station to buy more whiskey, and he thought he finished the 750-milliliter bottle that day. He went to his RV and drank and slept from around 10:00 a.m. until approximately 3:00 p.m., when he awoke to find Nicole B. there. He and Nicole B. planned to spend time together until her class in Watsonville. Defendant stated that he did not remember what happened between them inside the RV, but he did not think they had any sexual contact even though he wanted to have sex with her. He believed that they were sitting in the front passenger seats and he was trying to get her to go up to the loft area, and he ordered her to get up there. Although he did not recall pulling her hair, he was sure that he did. He believed that he made her get into the back of the RV and he pulled her four or five feet on the floor, but he was not sure why. Nicole B. was crying and pleading, " 'No, no, no.' " He was threatening her because she was not going up to the loft. The struggle could be heard on the recording Nicole B. made. He did not believe that he raped her in the loft area of the RV; he did not recall having sex with Nicole B. in the loft and did not recall penetrating her on the floor of the RV. He did hurt her when he grabbed her by the hair.
Defendant remembered that Nicole B. exited the RV at some point, and that he followed her out and tried to get her back inside the vehicle. He moved the RV from where it was parked over to Nicole B. He got out of the RV and grabbed Nicole B. from behind because he wanted her to get back inside. He pulled her back toward the RV for a few steps, but then he released her. He knew she did not want to get back in the RV. He was concerned because he was on parole and was not supposed to be drinking, and he did not want to get arrested and lose his RV. He was worried they were creating a scene. Del Valle approached them and he told her that Nicole B. was his wife. Defendant was concerned Del Valle was going to call the police.
Nicole B. got back into the RV. They left the location on Willowbrook Lane together and he drove them about a quarter of a mile to their usual spot at a church parking lot in Aptos, where he had a permit to park the RV. His only intention was to get away from the area and hang out with Nicole B. until it was time to take her to school. He also testified that he drove there because he was worried about the police coming, and because he was worried about getting a DUI.
Once at the church parking lot, they kissed and defendant touched Nicole B.'s vagina. He told Nicole B. that he wanted to have sex with her whether she wanted to or not. Nicole B. never told him that she wanted to have sex with him, but she acted like she wanted to be with him. He orally copulated her vagina, but he did not orally copulate her anus and they did not have intercourse or anal sex. He did not digitally penetrate her. Afterwards, they left the lot to drive Nicole B. to school, but they were stopped by the police. He was not taking Nicole B. somewhere to pick up a child for him to have sex with.
Defendant stated that he caused the bruising to Nicole B.'s body. He also stated on cross-examination when confronted with the cell phone recordings that some of the sex acts that occurred when Nicole B. was in the RV the second time were not consensual and were against Nicole B.'s will.
b. A.O.
Defendant stated that one day while he was working at a Goodwill donation trailer in Watsonville in May 2013, he interacted with two children, A.O. and J.O., who lived next door to the trailer. The kids had ridden their bikes over to the trailer and asked him if they could have various items, like a radio and a baseball bat. The children left and came back several times, and eventually defendant let them have some things including baseball hats. Defendant stated that he did not say anything to A.O. about "grabbing her" or "grabbing it" and denied that she went into the trailer. Defendant did not mention anything to J.O. about grabbing A.O., but J.O. did go inside the trailer.
Defendant testified that he spoke with Nicole B. about his interaction with A.O. and J.O., and acknowledged that Nicole B. recorded him stating that he had sex with the little girl. Defendant testified that he did not have sex with A.O. Defendant also stated that he did not have sex with the other children mentioned in the recordings.
c. Janice K.
Defendant testified that he was in a romantic relationship with Janice K. in 2002. He stated that their sexual encounters were consensual and that he never forced her to orally copulate him. He also testified that he did not strike or kick Janice K. during the dog fight. Defendant never told her that he had a sexual interest in children or that he was sexually interested in a girl who would visit Janice K.'s property.
d. Priscilla B.
Defendant testified that he had been in a relationship with Priscilla B. for seven years, and that they had lived together in an apartment in a Denver suburb. On December 24, 2010, during an argument, he got on top of her back while she was on her stomach on the ground, and he grabbed her hair and shoved her head repeatedly into the basement floor. Defendant stated that he was restraining Priscilla B. from hitting him and that she had struck him many times before he wrestled her to the ground. He stopped when a police officer pointer her taser light at him and yelled at him.
Defendant stated that he pleaded guilty to the case involving Priscilla B. He testified that he had called out her name while they were in court in violation of a protective order. He stated that he was sorry for what he had done.
e. Criminal Record
Defendant testified that he had been convicted of attempted sexual assault, a felony, in Colorado in 1982; dissuading a witness in Santa Cruz County in 2002; and domestic violence assault and violating a court protective order in Colorado in 2010. Janice K. was the victim in the Santa Cruz County case; Priscilla B. was the victim in the 2010 Colorado case.
E. Rebuttal Evidence
Deputy Simpson testified that the RV was stopped at a red light when he first saw it. He followed the vehicle for about a block and did not notice anything unusual or anything that suggested the driver was under the influence. After Deputy Simpson pulled the RV over, defendant complied with his orders and did not have trouble following the orders. He did not appear to be drunk.
Deputy Simpson stated that he saw defendant go into the back of the RV after he pulled the RV over. Defendant was in the back for approximately 10 seconds, which would have been enough time for someone to take a drink from a liquor bottle.
F. Charges , Verdicts , and Sentence
In case No. F26257, defendant was charged with four counts of sexual penetration by a foreign object (counts 1-3, 10; § 289, subd. (a)(1)); two counts of spousal rape (counts 4, 7; § 262, subd. (a)(1)); two counts of aggravated kidnapping (counts 5, 11; § 209, subd. (b)(1)); two counts of forcible oral copulation (counts 6, 9; § 288a, subd. (c)(2)); and forcible sodomy (count 8; § 286, subd. (c)(2)). As to counts 3 and 4 and 6 through 10, the information alleged that defendant kidnapped the victim to commit a felony sex offense (§ 667.8, subd. (a)).
In case No. M73933, defendant was charged with molesting a child (count 1; § 647.6, subd. (a)(1)); attempting a lewd act on a child (count 2; §§ 664/288, subd. (a)); and contacting a minor with the intent to commit a sex offense (count 3; § 288.3, subd. (a)).
Case No. F26257 and case No. M73933 were joined for trial. At the conclusion of the evidence, the trial court dismissed the charge of molesting a child in case No. M73933 at the prosecution's request. A jury found defendant guilty of the remaining charges and found the special allegations true.
The trial court imposed two life terms plus a determinate term of 43 years. In case No. F26257, the trial court imposed life terms for the aggravated kidnappings in counts 5 and 11. For the sexual penetration by a foreign object in count 1, the trial court imposed the eight-year upper term. For the sexual penetration by a foreign object in count 3, the trial court imposed a consecutive eight-year upper term plus a consecutive nine-year term for the allegation that defendant kidnapped Nicole B. to commit a felony sex offense. For the forcible oral copulation in count 6, the trial court imposed a consecutive eight-year upper term. For the spousal rape in count 7, the trial court imposed a concurrent eight-year term plus a consecutive nine-year term for the allegation that defendant kidnapped Nicole B. to commit a felony sex offense. The trial court imposed concurrent terms of eight years each for the remaining counts and declined to impose a sentence for the special allegations attached to counts 4, 6, 8, 9, and 10.
In case No. M73933, the trial court imposed a consecutive one-year term, which was one-third of the midterm, for the attempted lewd conduct on a minor in count 2. The trial court imposed a concurrent one-year term, or one-third of the midterm, for contacting a minor with the intent to commit a sexual offense in count 3.
III. DISCUSSION
A. Substantial Evidence of Two Kidnappings
Defendant contends that there was insufficient evidence to support two convictions of aggravated kidnapping (§ 209, subd. (b)(1); counts 5, 11) because his kidnapping of Nicole B. constituted one continuous offense.
1. Standard of Review
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well established. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138 (Ceja).) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.)
2. Analysis
Relying on People v. Thomas (1994) 26 Cal.App.4th 1328 (Thomas) and Parnell v. Superior Court (1981) 119 Cal.App.3d 392 (Parnell), defendant contends that this court must dismiss one of his aggravated kidnapping convictions because his conduct was "improperly fragmented" into two crimes. Defendant asserts that the evidence supports only one conviction of aggravated kidnapping.
Section 207 defines the crime of kidnapping as follows: "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a).) Aggravated kidnapping occurs when a "person who kidnaps or carries away any individual" acts with the intent "to commit . . . spousal rape, oral copulation, sodomy, or any violation of Section . . . 288[] or 289," among other crimes, and "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b).)
" '[T]he forcible detention of the victim is an implied element of the crime of kidnaping and, therefore, as long as the detention continues, the crime continues.' " (Thomas, supra, 26 Cal.App.4th at p. 1335.) Thus, where there is "a single abduction, followed by a continuous period of detention," a kidnapping continues until the victim has been "released from that detention and the danger it presented." (Ibid.; accord, People v. Jackson (1998) 66 Cal.App.4th 182, 190 ["kidnapping . . . cannot be divided into separate incidents to permit multiple convictions" where there is "a single abduction followed by a continuous period of detention"].)
In Thomas, the defendant kidnapped the victim in a parking lot by pointing a gun at her, demanding her car keys, and telling her to get in the car. (Thomas, supra, 26 Cal.App.4th at p. 1331.) The defendant took the victim's wallet, which contained her money and credit cards, and began driving the victim to her apartment to get her ATM card. (Id. at p. 1332.) On the way there, he parked the car on a side street, ordered the victim into the backseat, and repeatedly raped her. (Ibid.) Afterwards, the defendant drove them to the victim's apartment and told her to get her ATM card. (Ibid.) The victim went inside and called the police. (Ibid.) The defendant was found guilty of two counts of kidnapping based on the prosecution's theory that the first kidnapping began when the defendant forced the victim into her car at gunpoint and ended when the defendant parked the car to commit rape, and the second kidnapping began when the defendant drove the victim from the location of the sex offenses to her apartment. (Id. at p. 1334.) The court reversed the second kidnapping conviction, holding that "a defendant may be convicted of only one kidnapping offense where there is but one abduction and detention of a solitary victim." (Id. at p. 1331.)
Parnell involved the abduction of a seven-year-old boy who was detained by his kidnapper for over seven years. (Parnell, supra, 119 Cal.App.3d at pp. 398-400.) During that time, the child went to school, slept overnight at friends' houses, went on a multi-night school trip, and was even briefly in police custody for shoplifting. (Id. at p. 399.) Because the defendant asserted that his prosecution was barred by the three-year statute of limitations, the court addressed "whether kidnaping is a continuing offense, and the statute of limitations therefore d[id] not commence to run as long as the victim [wa]s forcibly detained, or, on the other hand, whether the crime [wa]s complete upon the initial forcible taking." (Id. at pp. 405, 407.) The court determined that "the kidnaping charge [wa]s supported by sufficient circumstantial evidence that [the victim's] detention was effected by the threat of force within the limitations period," and that the child "remained with [the defendant], not of his own free will, but out of fear induced by [the defendant]." (Id. at p. 409.) Thus, there was evidence that the child was forcibly detained for the entirety of the seven-year period, and the prosecution was not barred. (Id. at pp. 408-409.)
This case involves a different factual scenario from that present in Thomas and Parnell. Here, defendant first forcibly took Nicole B. when he grabbed her by the hair, pulled her out of the front passenger seat, and dragged her approximately 12 to 15 feet to the back of the RV. Defendant then continued to detain Nicole B. inside the RV by force and fear, pinning her down and speaking in a threatening manner as he sexually assaulted her.
Unlike the kidnapping victims in Thomas and Parnell, however, Nicole B. was able to break free from defendant's detention. When defendant left the RV to smoke a cigarette by the back door, Nicole B. defied his order "not [to] dare move [or] even think about trying to escape." Nicole B. "work[ed] up enough courage to leave," unlocked the passenger door, and "took off running." She "ran as fast as [she] could with a broken leg" to her brother's parked truck because she wanted to be "out in public" and hoped she could wait there for her friend to pick her up. Nicole B. ran for "[a]bout a block," a distance she described as "[p]robably bigger than th[e] courtroom." Johneen Del Valle saw Nicole B. get out of the RV and "move briskly" to another vehicle, where she frantically tried to use her phone before defendant chased after her. From this evidence, a reasonable trier of fact could have determined that defendant's " 'forcible detention' " of Nicole B. had ended when she ran about a block from the RV and stood on a public street to wait for her friend. (Thomas, supra, 26 Cal.App.4th at p. 1335.)
A second detention began after defendant moved the vehicle to Nicole B.'s location and he yelled at her to get back inside. Defendant exited the vehicle, picked Nicole B. up, forced her into the passenger seat, and slammed the door. Del Valle saw Nicole B. scream " '[n]o, no,' " and observed defendant put his arms under Nicole B.'s chest to pull her into the RV as she kicked. Although Nicole B. briefly exited the RV when Del Valle confronted defendant, Nicole B. returned to the vehicle when defendant told her she had to. Defendant then detained Nicole B. inside the RV as he drove to the church parking lot, a place he described as " 'somewhere [she] can't get away from [him].' "
Although defendant asserts that "[a] kidnapping continues until the victim is freed, even if he or she reaches a place of relative safety," the cases he relies on do not stand for that proposition. Rather, Thomas held that the evidence established only one kidnapping because there was one abduction followed by a continuous detention; the victim was detained from the time she was ordered into her car at gunpoint until she went into her apartment and called the police. (Thomas, supra, 26 Cal.App.4th at pp. 1331, 1335.) In Parnell, although the victim had many opportunities to break free from the detention, the court determined that he was forcibly detained for the entirety of the seven-year period because he "remained with [the defendant] . . . out of fear." (Parnell, supra, 119 Cal.App.3d at p. 409, italics added.)
Here, instead of a "single abduction, followed by a continuous period of detention" (Thomas, supra, 26 Cal.App.4th at p. 1335), there was substantial evidence of two abductions and two detentions. Thus, based on the evidence at trial, a reasonable trier of fact could have found, beyond a reasonable doubt, that defendant kidnapped Nicole B. twice. Substantial evidence therefore supports defendant's aggravated kidnapping convictions.
B. Instruction on Aggravated Kidnapping and the Kidnapping Allegation
Defendant contends that the trial court erroneously instructed the jury regarding the crime of aggravated kidnapping and the allegation that he kidnapped the victim to commit a felony sex offense because the court failed to define the term "substantial distance" in its aggravated kidnapping instructions, failed to adequately respond to the jury's question on the meaning of "incidental," and failed to instruct the jury sua sponte on a defense to kidnapping. Defendant also contends that if we determine that any of the claims has been forfeited by his failure to raise it below, his counsel was ineffective.
1. Proceedings Below
When the trial court instructed the jury on the crime of aggravated kidnapping pursuant to CALCRIM No. 1203, it stated that the prosecution had to prove that "defendant moved the other person or made the person move a substantial distance," and that "[t]he other person was moved or made to move a distance beyond that merely incidental to the commission of a spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force." It also told the jury that the prosecution had to prove that "[t]he other person did not consent to the movement." Although CALCRIM No. 1203 provides a definition of "substantial distance," the trial court did not include it in its aggravated kidnapping instruction.
The trial court instructed the jury on aggravated kidnapping as follows:
"The defendant is charged with two counts of kidnapping for the purpose of committing specified sexual offenses in violation of Penal Code section 209(b).
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant intended to commit spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force;
"2. Acting with that intent, the defendant took, held, or detained another person by using force or instilling a reasonable fear;
"3. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance;
"4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force;
"5. When that movement began, the defendant already intended to commit spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force;
"AND
"6. The other person did not consent to the movement.
"To be guilty of kidnapping for the purpose of spousal rape, oral copulation by force, sodomy by force, or sexual penetration, the defendant does not actually have to commit the spousal rape, oral copulation by force, sodomy by force, or sexual penetration.
"To decide whether the defendant intended to commit spousal rape, oral copulation by force, sodomy by force, or sexual penetration, please refer to the separate instructions that I will give you on that crime."
CALCRIM No. 1203 defines "substantial distance" as "more than a slight or trivial distance. The movement must have increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the (robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration/ [or] <insert other offense specified in statute>). In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
In its instructions on the lesser included offense of simple kidnapping and the allegations that defendant kidnapped Nicole B. for the purpose of committing a felony sex offense, the trial court defined "substantial distance" as follows: "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of spousal rape, oral copulation, sodomy, digital penetration[,] whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
The trial court instructed the jury on simple kidnapping as follows:
"Simple kidnap is a lesser included offense to Kidnapping for Rape or Certain Sexual Offenses.
"To prove Simple Kidnap, the People must prove that:
"1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;
"2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance;
"AND
"3. The other person did not consent to the movement.
"Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition, to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of spousal rape, oral copulation, sodomy, [or] digital penetration[,] whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
The trial court instructed the jury on the allegations that defendant kidnapped Nicole B. to commit a felony sex offense as follows:
"Certain charges allege that Nicole [B.] was kidnapped for the purpose of committing a sexual offense.
"To prove this allegation, the People must prove that:
"1. The defendant took, held, or detained another person by using force or by instilling reasonable fear;
"2. Using that force or fear, the defendant moved the other person or made the other person move a substantial distance;
"AND
"3. The other person did not consent to the movement.
"4. The defendant took, held, or detained another person for the purpose of committing spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force.
"Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition, to considering the actual distance moved, you may also consider other factors such as whether the distance the other person was moved was beyond that merely incidental to the commission of spousal rape, oral copulation, sodomy, digital penetration[,] whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection."
Defendant did not object to the trial court's jury instructions or request modification.
Although it appears that the trial court met with the parties regarding the jury instructions, the conference was not transcribed.
During deliberations, the jury asked, "For the charge of kidnapping (Pen. Code 207(a)), what is the definition of 'incidental'—in relation to the law[?]" After discussing the question with counsel off the record, the trial court stated outside of the jury's presence that "[t]he word 'incidental' is not defined in any instruction that [it had] been able to locate; nor in any case, really. All the cases that address it use the word but don't really define it." The court told the parties that it intended to reread to the jury the portion of CALCRIM No. 200, the pattern instruction on the duties of the judge and the jury, that addresses the definitions of words and phrases. Defendant responded, "That's fine."
In response to the jury's question, the trial court told the jury that it was going to "reread . . . an instruction that [it] gave . . . , and that's really all [it] can do." The court instructed, "Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings." The court also "assure[d] [the jury] that the word 'incidental' is not defined in these [instructions], and [it could not] give . . . any better definition."
The court then spoke with the jury regarding a request for readback of Johneen Del Valle's testimony. Immediately after that discussion, the foreperson inquired, "[R]egarding 'incidental,' is it okay if we just look up the Webster's definition?" The court responded, "It is not okay," and told the jury that it was "to use [its] collective understanding of what the word means."
2. Standard of Review
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We determine the correctness of the challenged instruction "in the context of the instructions as a whole and the trial record," and not " 'in artificial isolation.' " (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) "In addition, ' " 'we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" [Citation.]' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 915.)
3. Failure to Instruct on the Meaning of "Substantial Distance"
for Aggravated Kidnapping
Defendant contends that his aggravated kidnapping convictions must be reversed because the trial court failed to instruct the jury on the meaning of "substantial distance," which would have informed the jury of a required criminal element: that "the movement of the victim . . . increase[] the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b)(2).) The Attorney General concedes the error but asserts that it was harmless beyond a reasonable doubt.
The pattern instruction on aggravated kidnapping, CALCRIM No. 1203, includes this requirement in its definition of "substantial distance." The instruction states, "As used here, substantial distance means more than a slight or trivial distance. The movement must have increased the risk of [physical or psychological] harm to the person beyond that necessarily present in the [underlying offense]. In deciding whether the movement was sufficient, consider all the circumstances relating to the movement."
Regarding the element of asportation, the offense of aggravated kidnapping requires that the perpetrator's movement of the victim: (1) be "not merely incidental to the commission of the underlying crime," and (2) "increase the risk of harm to the victim over and above that necessarily present in the underlying crime itself." (People v. Martinez (1999) 20 Cal.4th 225, 232-233 (Martinez); see § 209, subd. (b)(2).) " 'These two aspects are not mutually exclusive, but interrelated.' " (Martinez, supra, at p. 233.)
The statute no longer requires a substantial increase in the risk of harm. (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20 (Vines), overruled on another ground by People v. Hardy (2018) 5 Cal.5th 56, 104.)
Although the trial court told the jury when instructing on the crime of aggravated kidnapping that the prosecution had to prove that "defendant moved [Nicole B.] or made [Nicole B.] move a substantial distance," it failed to define the meaning of "substantial distance" in the context of that offense. Thus, the trial court did not instruct the jury that the prosecution had to prove that the movement "increase[d] the risk of harm to [Nicole B.] over and above that necessarily present in, the intended" sex crimes. (§ 209, subd. (b)(2).) This error constituted a failure to instruct the jury on an element of the offense. (See § 209, subd. (b)(2); Martinez, supra, 20 Cal.4th at pp. 232-233.)
The trial court's failure to instruct on an element of the crime was "constitutional error" because it relieved the prosecution of proving each element of the charged offense beyond a reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819, 824-825 (Merritt).) Thus, we review the error for prejudice under the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Merritt, supra, at p. 826; see also Neder v. United States (1999) 527 U.S. 1, 15 (Neder).) Under the Chapman standard, we will conclude that the error was harmless only if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, at p. 24.) We therefore must determine whether " 'it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.' " (Merritt, supra, at p. 827, quoting Neder, supra, at p. 18.) The "court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder, supra, at p. 19; see also Merritt, supra, at pp. 831-832.) "The United States Supreme Court has repeatedly noted that in conducting Chapman harmless error analysis, we must evaluate the 'entire record . . . .' " (People v. Avila (1995) 35 Cal.App.4th 642, 662 (Avila).)
The determination of whether the asportation subjected a kidnapping victim to an increased risk of harm beyond that necessarily present in the underlying crime "involves a comparison of the victim's physical location before and after the asportation" (People v. Salazar (1995) 33 Cal.App.4th 341, 348 (Salazar)), and "includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes" (People v. Rayford (1994) 9 Cal.4th 1, 13 (Rayford)). "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." (Rayford, supra, at p. 14.) "[E]xamples of such risk of harm 'include not only desperate attempts by the victim to extricate himself [or herself] but also unforeseen intervention by third parties.' " (Id. at pp. 13-14.)
Having reviewed the entire record, including defendant's testimony and the trial exhibits, we determine that the instructional error was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. Although the trial court did not instruct the jury that for defendant to be found guilty of the crime of aggravated kidnapping, it had to find that defendant's asportation of Nicole B. increased her risk of harm beyond that necessarily present in the underlying sex offenses, the jury was not entirely unaware of the factors involved in such a determination. The court defined the term "[s]ubstantial distance" in its instructions on simple kidnapping and the kidnapping allegations, telling the jury that it "must consider all the circumstances relating to the movement" and that "in addition to considering the actual distance moved, [it] may also consider other factors such as . . . whether the movement increased the risk of physical or psychological harm, increased the danger of a foreseeable escape attempt, or gave the attacker a greater opportunity to commit additional crimes, or decreased the likelihood of detection." The last three factors recited are the same factors to be considered when determining, in the context of aggravated kidnapping, whether the asportation caused the victim an increased risk of harm (see Rayford, supra, 9 Cal.4th at pp. 13-14), and the jury found the kidnapping allegations true. Moreover, the jury was told to consider the instructions together, and we presume that jurors follow the instructions (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 820 (Daveggio)) and are capable of understanding and correlating them (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151).
Regarding the first charge of aggravated kidnapping (count 5), defendant did not contest that he pulled Nicole B. from the front passenger seat to the back of the RV where he pinned her down on the floor. Nicole B. testified that defendant "yanked [her] back by [her] hair and pulled [her] out of the seat and dragged [her] across the whole hallway all the way to the very end of the RV." Defendant testified that although he did not "recall" pulling Nicole B.'s hair when he was trying to get her to go into the back of the RV, he was "sure that [he] did."
Nicole B. testified that it would have been "[a] lot" harder for a passerby to see her on the floor in the back of the RV than it would have been for someone to see her while she was in the front passenger seat, and photographs of the RV support her testimony. In the photographs, the front of the RV appears similar to an older Ford truck or van, with living quarters affixed behind and above the driver's cab. The RV has a large, unobstructed windshield and driver's side and passenger side windows. The front passenger seat can be seen in the photographs through the windshield and front windows. In contrast, the photographs show that the floor of the RV's living quarters is blocked from a passerby's view by a couch, bench, and kitchen. Thus, the photographs demonstrate that defendant moved Nicole B. from a place where she could be seen, the front passenger seat, to a place obscured from view, the floor in the back of the RV. "[A] rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack." (People v. Hoard (2002) 103 Cal.App.4th 599, 607.)
The photographs also show that unlike the windshield and front windows, the windows in the back of the RV and the loft area had window coverings. Although Nicole B. testified that those were the "same kind of coverings [she] had [on] the RV," it is unclear from her testimony whether the coverings were closed when the crimes occurred.
We find several cases examining the sufficiency of the evidence to support an aggravated kidnapping conviction instructive although they do not apply Chapman's harmless error standard. For example, in Rayford, the California Supreme Court determined there was sufficient evidence to support a conviction for aggravated kidnapping based on the defendant's movement of the victim from a parking lot to the other side of a wall at the edge of the lot, in part because the wall blocked the view of any individuals on the parking lot side, which " 'substantially increased' [the victim's] risk of injury." (Rayford, supra, 9 Cal.4th at p. 23.) Other courts have reached similar conclusions. (See, e.g., People v. Arias (2011) 193 Cal.App.4th 1428, 1431, 1435 (Arias) [movement of victim from outside apartment building to inside apartment was sufficient evidence of increased risk of harm because victim was moved from "public area to the seclusion of [the] apartment," which decreased the likelihood of defendant's detection]; People v. Shadden (2001) 93 Cal.App.4th 164, 167, 169-170 (Shadden) [movement of victim into back room from front store counter increased risk of harm because it placed victim out of public view, thereby making it less likely for others to discover the crime and enhancing defendant's opportunity to rape and injure]; People v. Jones (1999) 75 Cal.App.4th 616, 629-630 (Jones) [moving victim 40 feet and then pushing her into car increased risk of victim's harm because it took her from public view]; Salazar, supra, 33 Cal.App.4th at p. 348 [movement from exterior walkway into motel room substantially increased risk of harm because it decreased likelihood of defendant's detection dramatically and placed victim in vulnerable position].) In each of those cases, the common critical factor was that the defendant secluded the victim.
When Rayford was decided, the offense of aggravated kidnapping required that the movement substantially increase the victim's risk of harm. (Rayford, supra, 9 Cal.4th at p. 12.)
The prosecutor argued to the jury here that defendant's movement of Nicole B. to the back of the RV and onto the floor caused her "not [to be] in a position to be seen . . . and that's a substantial movement." The increased risk of harm to Nicole B. was also manifested by defendant's increased violence against her once he had her on the floor, when he pinned her down by the neck and choked her. (See Jones, supra, 75 Cal.App.4th at p. 630.) Moreover, the manner of asportation—defendant's yanking and dragging Nicole B. by the hair—increased her risk of injury beyond that necessarily present in the underlying sex offenses. (See In re Earley (1975) 14 Cal.3d 122, 132, superseded by statute as stated in Vines, supra, 51 Cal.4th at p. 869.) During Nicole B.'s SART examination, the nurse found that Nicole B.'s scalp was tender, and certainly the injuries to Nicole B.'s head would have been more severe had she made a "desperate attempt[] . . . to extricate" herself from defendant's grip. (Rayford, supra, 9 Cal.4th at p. 13.)
Although defendant contested at trial that he moved Nicole B. a substantial distance when he dragged her to the back of the RV, he did not "raise[] evidence sufficient to support a contrary finding" on count 5. (Neder, 527 U.S. at p. 19.) Defendant testified on cross-examination that the floor of the RV was "[n]ot necessarily" more private than the front passenger seat. Given the photographic evidence and the fact that the jury's verdicts demonstrate it rejected defendant's testimony in toto, however, we conclude that a properly instructed jury would not have reached a different verdict on count 5 based on this testimony. (See Neder, supra, 527 U.S. at p. 19; cf. Avila, supra, 35 Cal.App.4th at p. 665 [observing that jury's verdict established it believed victim's testimony].)
Defendant also cites Del Valle's testimony that she could see into the RV, but Del Valle's testimony supports the inference that defendant and Nicole B. were standing up when she saw them, not struggling on the RV's floor. Del Valle testified that she "saw two white bodies fighting back and forth and then . . . a young woman come to the front and sit in the driver's seat pulling her clothing together." Del Valle also stated that she "saw a man's body, chest with pants [sic]" and he appeared to be "pulling his pants up." Del Valle did not testify that she saw the individuals while they were on the floor or that she saw the man pinning the woman down and raping her. Based on the photographs of the RV and Del Valle's testimony that when she saw the individuals inside the vehicle, she was sitting in her parked car, which was approximately 40 feet away from and facing the RV, it would have been impossible for her to see anyone on the RV's floor because the front seats and dashboard would have blocked her view. Rather, Del Valle's testimony regarding her observations of the people inside the RV supports the conclusion that defendant moved Nicole B. from a place inside the RV where she could be seen to a place where she was concealed.
Defendant also argues that the movement of approximately 12 feet from the front seat to the floor "was not substantial," but he appears to be conflating the two asportation requirements—first, that the movement be not merely incidental and, second, that it increase the risk of harm beyond that inherent in the underlying offense. We recognize that the two "aspects are . . . interrelated" (Rayford, supra, 9 Cal.4th at p. 12), but it is "[w]ith regard to the first prong [that] the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved," and even then "[t]here is . . . no minimum distance a defendant must move a victim to satisfy the first prong" (Vines, supra, 51 Cal.4th at p. 871; see also Martinez, supra, 20 Cal.4th at p. 233). "Where movement changes the victim's environment, it does not have to be great in distance to be substantial." (Shadden, supra, 93 Cal.App.4th at p. 169.)
In addition, defendant asserts that the trial court's omission of the increased harm requirement from the aggravated kidnapping instruction was prejudicial because it made it "harder for the jury to convict [him] of simple kidnapping," because unlike the aggravated kidnapping instruction, the simple kidnapping instruction included a definition of "substantial distance." However, as stated above, although the simple kidnapping instruction told the jury it could consider whether the movement increased the risk of harm to Nicole B., it did not require the jury to find that it did. Moreover, when determining whether the omission of an element from an instruction prejudiced the defendant, we review the record to determine whether " 'it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.' " (Neder, supra, 527 U.S. at p. 18; see also Merritt, supra, 2 Cal.5th at p. 831 [the reviewing court "determine[s] whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error"].) In doing so, we consider the entire record to determine whether it is clear beyond a reasonable doubt that a properly instructed jury would have found the defendant committed the crime of which he was convicted absent the instructional error. (See Neder, supra, at p. 19.)
Regarding the second charge of aggravated kidnapping (count 11), the unchallenged evidence established that before the asportation occurred, Nicole B. was standing on a public street where at least one person (Del Valle) saw her. Defendant did not contest that he moved Nicole B. from the street, into the RV, and over to the church parking lot; he argued that he did not intend to sexually assault her when the asportation began.
Defendant's movement of Nicole B. from the street, into the vehicle, and to the parking lot took her away from Del Valle, and anyone else who was present, which decreased Nicole B.'s ability to get help and increased defendant's ability to avoid detection. Defendant was recorded on Nicole B.'s cell phone telling her that he was " 'going to take [her] somewhere [she] can't get away from [him].' " Moreover, "the asportation gave rise to dangers, not inherent in [the underlying sex offenses], that an auto accident might occur or that [Nicole B.] might attempt to escape from the moving car." (In re Earley, supra, 14 Cal.3d at p. 132.)
Defendant contends regarding count 11 that he was prejudiced by the instructional error because, as he argued at trial, there was evidence that the church parking lot was not secluded or desolate, which meant "the location did not necessarily 'increase the risk of harm.' " This assertion is based on defendant's recorded statement, which he made as he and Nicole B. drove into the lot, " 'God, look at all the people parking where we usually park. . . . Is there . . . even anywhere up here to park?' " Immediately after he made that statement, however, defendant can be heard on the recording ordering Nicole B. to get up to the loft; telling her that she cannot scream; and asking her, " 'Okay, the easy way or the hard way?' " The recording corroborates Nicole B.'s testimony that after they got to the parking lot, she complied with defendant's command to go to the loft because she was scared. Nicole B. also testified that although she was screaming and crying, no one could hear her from the loft, which is where the final sexual assault occurred. This evidence establishes that defendant's movement of Nicole B. from the public street, into the RV, and over to the parking lot changed the nature of Nicole B.'s location in a way that increased her risk of harm, because it diminished the likelihood of defendant's detection and enhanced his ability to commit additional crimes. (See Rayford, supra, 9 Cal.4th at p. 23; Arias, supra, 193 Cal.App.4th at p. 1435; Shadden, supra, 93 Cal.App.4th at pp. 169-170].)
For these reasons, based on our careful examination of the record, we conclude that it is clear beyond a reasonable doubt that a rational jury would have found defendant guilty of the aggravated kidnappings (counts 5 and 11) absent the instructional error. Thus, the trial court's constitutional error when instructing the jury on counts 5 and 11 was harmless beyond a reasonable doubt.
4. Response to the Jury's Question on the Meaning of "Incidental"
Citing section 1138, which provides that if a deliberating jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given," defendant contends that the trial court erred when it told the jury that the term "incidental" was to be applied using its ordinary meaning, because the court "ha[d] a sua sponte duty to instruct on the meaning of terms with special legal significance" and "to provide guidance and meaningful re-instruction." The Attorney General argues that defendant forfeited this claim when he agreed to the court's response.
A party's failure to object to a trial court's response to a jury question forfeits the claim of error, even when the court's answer is not responsive to the question asked. (People v. Salazar (2016) 63 Cal.4th 214, 248-249; People v. Boyette (2002) 29 Cal.4th 381, 430 (Boyette).) This rule of forfeiture applies to assertions that a trial court's deficient answer violated section 1138 if the party claiming the error agreed to the response given. (People v. Ross (2007) 155 Cal.App.4th 1033, 1048; People v. Kageler (1973) 32 Cal.App.3d 738, 746, cited with approval in Boyette, supra, 29 Cal.4th at p. 430.) Because defendant told the trial court that its response to the jury's question was "fine," we agree that the claim has been forfeited.
Defendant alternatively argues that his counsel was constitutionally ineffective for failing to object to the trial court's response. To establish ineffective assistance of counsel, defendant must demonstrate that "(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected [him] to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to [him]." (In re Neely (1993) 6 Cal.4th 901, 908-909, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Jennings (1991) 53 Cal.3d 334, 357.)
Defendant's assertion of prejudice from the trial court's response to the jury's question pertains solely to the kidnapping that occurred inside of the RV while it was parked by Nicole B.'s mother's house (count 5). Defendant contends that had the court responded to the jury's question on the meaning of "incidental" by telling the jury it should " 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred,' " the "jury rationally could have considered that attempting to have sex in the front seat of the RV was impractical, and the movement was incidental."
Regarding the offense of aggravated kidnapping, the California Supreme Court has stated that "[i]n determining 'whether the movement is merely incidental to the [underlying] crime . . . the jury considers the "scope and nature" of the movement. [Citation.] This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim.' " (Martinez, supra, 20 Cal.4th at p. 233.)
In its instructions to the jury on the allegations that defendant kidnapped the victim to commit a felony sex offense, the trial court told the jury to "consider all the circumstances relating to the movement," including "the actual distance moved." As we stated earlier, we presume that jurors follow the instructions. (Daveggio, supra, 4 Cal.5th at p. 820.) Thus, the jury considered all of the circumstances related to defendant's movement of Nicole B. and the actual distance she was moved, when it determined that the kidnapping allegations pertaining to the sex offenses perpetrated inside of the RV while it was parked by Nicole B.'s mother's house were true. We conclude that it is not reasonably probable that had the trial court responded to the jury's question on the meaning of "incidental" by telling it to consider " 'the "scope and nature" of the movement' " and " 'the context of the environment in which the movement occurred,' " it would have resulted in a more favorable outcome for defendant.
Four photographs admitted into evidence showed the front interior of the RV, including the driver's seat and the passenger seat. With the exception of a more elaborate center console between the seats, the front area of the RV appears similar to a van. Other photographs admitted into evidence showed the RV's rear living quarters, which is where defendant moved Nicole B. from the front seat. Both parties urged the jury to look at the photographs, and the trial court instructed the jury to "impartially compare and consider all the evidence that was received." The jury's consideration of the photographs would have necessitated its examination of " 'the context of the environment in which the movement occurred.' "
Moreover, "[w]here a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape." (Shadden, supra, 93 Cal.App.4th at pp. 168-169 [victim dragged nine feet from front of store to back room where attempted rape occurred].) That is what occurred here when defendant dragged Nicole B. approximately 12 to 15 feet from the front passenger seat to the back of the RV and then sexually assaulted her.
For these reasons, defendant has not demonstrated that it is reasonably probable that the verdicts on the aggravated kidnappings (counts 5 and 11) would have been more favorable to him had the trial court answered the jury's question on the meaning of "incidental," by telling the jury that it should consider " 'the "scope and nature" of the movement' " and " 'the context of the environment in which the movement occurred.' "
5. Failure to Instruct on a Good Faith Belief in Consent
Defendant contends that the trial court erred when it did not instruct the jury sua sponte that the prosecution had to prove "[t]he lack of a good faith belief in consent" for defendant to be found guilty of the kidnapping offenses and allegations.
"[T]he sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses . . . . In the case of defenses, . . . a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citation.]" (Breverman, supra, 19 Cal.4th at p. 157, italics omitted.) As we stated earlier, substantial evidence is "evidence which is reasonable, credible, and of solid value." (Ceja, supra, 4 Cal.4th at p. 1138.)
A "defendant's reasonable good faith belief that the victim has voluntarily consented to accompany him constitutes a complete defense to the charge of kidnaping." (People v. Isitt (1976) 55 Cal.App.3d 23, 28; see also People v. Mayberry (1975) 15 Cal.3d 143, 155.) Thus, a trial court has a sua sponte duty to instruct on the defense, including that the prosecution must prove that the defendant did not actually and reasonably believe that the victim consented to the movement (People v. Eid (2010) 187 Cal.App.4th 859, 879), if the defendant relies on the defense or there is substantial evidence to support the defense and it does not conflict with the defendant's theory of the case.
Defendant does not contend that he relied on such a defense at trial, which would have required the trial court to instruct on it. (See People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Although defendant argued to the jury that he believed Nicole B. consented to the various sex acts, he did not argue that he believed that she consented to the asportation.
Regarding his movement of Nicole B. from the front seat to the back of the RV, defendant does not cite any evidence to support a good faith belief in consent defense, and we conclude there was not substantial evidence to mandate instruction on it. Defendant testified, "I think I made [Nicole B.] get into the back of the RV and struggled with her. I'm not sure exactly why." Defendant stated that he did not "recall pulling her hair, but . . . [he was] sure that [he] did." He also acknowledged that Nicole B. was pleading, " 'No, no, no.' " Nicole B. testified that defendant "grabbed" her hair, "yanked" her by the hair, and "pulled [her] out of the seat and dragged [her] across the whole hallway all the way to the very end of the RV." She stated that she did not want to move; he forced her to move; and there was nothing consensual about the movement. An audio recording taken on Nicole B.'s cell phone recorded her telling defendant that she did not want to go to the loft, followed by her asking defendant to stop pulling her hair and to stop dragging her.
Regarding the movement of Nicole B. from the street into the RV and then to the church parking lot, defendant argues that there was no evidence Nicole B. "expressed disapproval" and that the jury "could have rationally concluded [he] reasonably believed she consented, since any unwillingness to return to the RV or him driving to the lot was unexpressed."
Defendant also argues that "[a] reasonable jury could have concluded from the evidence that [Nicole B.] consented to returning to the RV" after Del Valle confronted him because Nicole B. "walked back to the RV on her own." However, this argument speaks to Nicole B.'s consent, not to defendant's belief in her consent, and the trial court instructed the jury that "the People must prove that . . . the other person did not consent to the movement."
Defendant testified that "after [Nicole B.] was out of the RV, [he] got out . . . and was trying to get her to get back in[side]." He stated that he "believe[d] that [he] moved the RV to where she was and got out and . . . grabbed her, wanting her to get back in the RV, but then [he] released her." On cross-examination, defendant testified that he moved the RV because he saw Nicole B. running and he wanted to get her back in the vehicle, and he knew that Nicole B. wanted to get away from him. Defendant acknowledged that he grabbed Nicole B. around her ribcage from behind; that her legs kicked up as he grabbed her; and that he pulled her towards the RV. He stated that he knew Nicole B. did not want to go back in the RV and that he was grabbing her against her will.
He testified that when Nicole B. returned to the RV after Del Valle confronted him, he "wasn't sure" if that was something she wanted to do. Defendant could be heard on an audio recording from Nicole B.'s cell phone stating, "I'm gonna take you somewhere where you can't get away from me," as he drove them away from the scene. At some point, Nicole B. asked defendant, " 'Will you let me leave the car, please?' " Defendant responded, " 'No, and don't even think about doing that.' " Nicole B. told defendant that she just wanted to leave.
"[A] trial court has no obligation to instruct sua sponte on a defense supported by 'minimal and insubstantial' evidence [citation]." (People v. Barnett (1998) 17 Cal.4th 1044, 1152.) For this reason, based on the record, we conclude that in this case the evidence did not require instruction on a good faith belief in consent defense to kidnapping. Accordingly, the trial court did not err in failing to instruct on that defense.
6. Cumulative Prejudice
Defendant contends that the instructional errors cumulatively require reversal and that "[t]he errors were prejudicial in combination." Since we have found only one instructional error committed by the trial court, we reject defendant's claim that the cumulative prejudice of the alleged instructional errors deprived him of a fair trial.
C. SART Nurse's Testimony
Defendant contends that the trial court abused its discretion and violated his right to due process when it permitted the SART nurse, Catherine Bautista, to testify that the injuries she observed on Nicole B. were consistent with the history Nicole B. gave. Defendant asserts that the testimony was beyond the scope of Bautista's expertise and "amounted to an opinion that [Nicole B.] was credible and . . . [he] was guilty." Defendant also contends that his "trial counsel was ineffective to the extent a better objection was necessary."
1. Proceedings Below
Bautista testified that she had been a registered nurse for 36 years and a sexual assault forensic examiner for four years. She received training to become a sexual assault forensic examiner through the California Clinical Forensic Medical Training Center and through her work with doctors and other nurses. She stated that as a sexual assault forensic examiner, she performs thorough physical examinations; conducts interviews; collects and packages evidence; and documents and photographs injuries. She testified that she had performed 107 sexual assault forensic examinations.
The prosecutor proffered Bautista "as an expert in the field of SART examinations and . . . the investigation and collection of evidence of . . . sexual assault victims and sexual assault perpetrators." The trial court inquired whether defendant had "[a]ny objection to [the court] allowing [Bautista] to express her expert opinion on sexual assault examinations." Defendant responded, "Not at this time." The court then stated it would allow Bautista "to render expert opinion on areas in the sexual assault evaluation arena."
Defendant did not conduct his own voir dire of Bautista's qualifications or later object to the trial court's decision to allow Bautista to testify as an expert.
Bautista described the procedures entailed in a SART examination and explained that she documents her findings on a standardized form that was created for SART exams. Bautista stated that the purpose of a SART examination is to document any evidence and injuries she may find. She also testified that she makes a determination at the end of every exam whether her findings are consistent with the history the patient gave.
Bautista's testimony next turned to her interview and examination of Nicole B. The prosecutor asked Bautista if she had been able to determine whether Nicole B.'s examination was consistent or inconsistent with the history Nicole B. gave. Bautista responded that she had concluded that Nicole B.'s examination was consistent with her history and that she documented her conclusion on the SART form. She also testified that her opinion remained the same "today." Bautista then relayed the history Nicole B. gave of her injuries and described the injuries she observed on her. The SART form was later admitted into evidence without objection.
At one point during her testimony, Bautista stated that Nicole B. winced when her scalp was examined, and that this was consistent with Nicole B.'s statement that her hair was pulled. Later, the prosecutor indicated that he wanted to ask Bautista about how "a rape victim get[s] injuries on their body in an assault." Bautista responded that she would "like to caution that [she] can give [her] opinion, but not a conclusion since [she] wasn't there during . . . this assault. However these injuries are consistent with blunt force trauma." The prosecutor then asked Bautista to explain how some of Nicole B.'s injuries may have occurred. Defendant objected, asserting that the question called for speculation. After stating that the question "[s]ound[ed] a little wide open," the trial court asked Bautista if she could answer. Bautista responded, "Honestly, I think just as anyone else in the room, you know, when people are fighting and struggling, the limbs are the ones that are grabbed and hit against objects more often." The court overruled defendant's objection. Defendant stated, "Once again, this is beyond the scope of her expertise," and the court overruled the objection.
The prosecutor next asked how vaginal injuries occur. Defendant objected, asserting that the question called for speculation and that the question was beyond the scope of Bautista's expertise. The trial court overruled the objection. Bautista explained that "[t]here are two kinds of injuries[,] . . . blunt force and sharp force trauma." Blunt force trauma is caused by "something that[] [is] not pointy and sharp," such as a hammer or a finger, and results in irregularly separated tissue; sharp force trauma is caused by something that can smoothly cut through tissue, such as a knife, and results in a deep, sharp cut. Bautista concluded her answer by stating that Nicole B.'s injuries were consistent with blunt force trauma, but also stated that "[w]hat caused them [she] can't say."
2. Forfeiture
The Attorney General contends that defendant's claims have been forfeited because he did not object to Bautista's testimony that Nicole B.'s injuries were consistent with the history she gave. The Attorney General asserts that defendant's objections pertained to Bautista's testimony regarding how certain injuries are caused.
We agree that defendant's claim that Bautista was improperly allowed to testify that Nicole B.'s injuries were consistent with her history has been forfeited by his failure to object to the testimony at trial. (See Evid. Code, § 353; People v. Doolin (2009) 45 Cal.4th 390, 448; People v. Champion (1995) 9 Cal.4th 879, 918, overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.) Although defendant objected to the prosecutor's request for Bautista to explain how some of Nicole B.'s injuries may have occurred and also to the prosecutor's question regarding how vaginal injuries occur, he did not object to the testimony complained of here. Nor did defendant request that any of Bautista's testimony in this regard be stricken.
We recognize that defendant objected when the prosecutor asked how vaginal injuries occur, and that after the trial court overruled the objection, Bautista's answer included her opinion that Nicole B.'s injuries were consistent with blunt force trauma. We find that this exchange did not preserve defendant's claim because the opinion testimony included in Bautista's answer was not responsive to the prosecutor's question and defendant did not move to strike Bautista's testimony.
Defendant asserts that his claim has not been forfeited because an objection to the testimony would have been futile, and cites People v. Dent (2003) 30 Cal.4th 213, 219 and People v. Alfaro (2007) 41 Cal.4th 1277, 1325. In both of those cases, however, the defendants brought the same contention raised on appeal to the trial courts' attention and the trial courts ruled against them. That did not occur here, and for this reason, defendant's claim has been forfeited.
3. Ineffective Assistance of Counsel
As we state earlier, "[a] defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of [a] reasonably competent attorney[] acting as [a] diligent advocate[], and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland, supra, 466 U.S. at pp. 687-696.)
Defendant contends that his trial counsel had a duty to object to Bautista's testimony that Nicole B.'s injuries were consistent with the history she gave because the testimony was inadmissible and prejudicial.
Bautista was qualified to testify as an expert on SART examinations and findings. (See Evid. Code, § 801.) A SART exam includes an interview of the complainant regarding the history of assault and a physical examination by a trained medical expert (§§ 13823.5, 13823.7, 13823.93), and a "major purpose" of the exam is to determine if the physical findings are consistent with the history related. (Uribe, supra, 162 Cal.App.4th at p. 1479; see also § 13823.93, subd. (a)(2).) Bautista was qualified by training and experience to express an opinion that the injuries she observed on Nicole B. were consistent with the history of assault Nicole B. relayed. Bautista did not offer an opinion on Nicole B.'s credibility or defendant's guilt; she testified that her findings were consistent with the history that Nicole B. gave. Bautista testified as a qualified medical expert who based that portion of her expert opinion on Nicole B.'s history of the incident, her observations of Nicole B.'s physical injuries, and her knowledge of the causes of injuries to the human body. The court properly admitted Bautista's testimony and opinion, and counsel did not provide ineffective assistance by failing to object to the testimony.
D. Cumulative Error
Defendant contends that even if each asserted error was independently harmless, the cumulative effect of those errors violated his federal constitutional right to due process and requires reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) However, we have not found multiple errors, and thus there can be no cumulative error.
E. Sentencing Claims
Defendant contends that the sentence was "unauthorized" for the following reasons: (1) in case No. F26257, section 654 required the punishment imposed for the sex offenses (counts 3-4 and 6-10) underlying the aggravated kidnappings (counts 5 and 11) to be stayed; (2) alternatively, section 654 required the punishment imposed for the allegations attached to counts 3 and 7 that defendant kidnapped Nicole B. to commit a felony sex offense (the kidnapping allegations) to be stayed; (3) unstayed punishment for the kidnapping allegations could only be imposed once; (4) the trial court erred when it did not impose, and stay, punishment on the remaining kidnapping allegations; and (5) section 654 required the punishment imposed for either count 2 or count 3 in case No. M73933 to be stayed.
The Attorney General also raises sentencing claims. The Attorney General contends that the trial court could not properly impose a consecutive term for the kidnapping allegation attached to count 7 because it imposed a concurrent term of punishment for the underlying count. The Attorney General also asserts that the trial court improperly imposed punishment on counts 2 and 3 in case No. M73933.
1. Proceedings Below
In case No. F26257, the trial court found there were "three separate transactions," namely, the offenses at Nicole B.'s mother's condominium (counts 1-2), the offenses in the RV while it was parked on Willowbrook Lane (counts 3-5), and the offenses in the RV while it was parked at the church (counts 6-11), and stated that it would "treat them accordingly." It then imposed sentences for defendant's sex offenses. The trial court imposed an eight-year term for count 1, designating it to be the "principal term," and full, consecutive eight-year terms for counts 3 and 6. The trial court imposed concurrent eight-year terms for the remaining sex offenses (counts 2, 4, 7-10). The trial court recognized that it had the discretion to impose full, consecutive terms for each of the sex offenses, but declined to do so.
The trial court stated that there is "always . . . a question of whether" a sentence enhancement should not be imposed, should be imposed and stayed, or should be stricken, and decided to impose only one sentence enhancement for the kidnapping allegations per transaction. Thus, the court added consecutive nine-year terms for the kidnapping allegations to the terms imposed on counts 3 and 7, but declined to impose a sentence for the kidnapping allegations attached to counts 4, 6, 8, 9, and 10. Finally, the trial court imposed a life term for each of defendant's aggravated kidnapping convictions (counts 5 and 11).
In case No. M73933, the trial court imposed a one-year term, which was one-third of the midterm, for count 2 and count 3. The trial court ordered the term imposed on count 2 to be served consecutively to the sentence imposed in case No. F26257, and the term imposed on count 3 to be served concurrently with count 2.
2. Section 654 and the Sex Offenses Underlying the Aggravated Kidnappings
(Counts 3-4 and 6-10)
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The California Supreme Court has long held that "[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.)
" 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208 (Latimer).) "In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for the offense with the longest sentence." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338 (McCoy).) "The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal." (Ibid.)
Here, the trial court did not make any express findings regarding the applicability of section 654. Thus, in imposing but not staying the sentences for defendant's crimes, the court impliedly determined that defendant's course of conduct (1) did not involve a single physical act and (2) reflected multiple intents or objectives. (See People v. Corpening (2016) 2 Cal.5th 307, 311.)
We note that had the trial court exercised its discretion to sentence defendant pursuant to section 667.6, subdivision (c), which "was intended to allow enhanced punishment of certain sexual offenders who commit multiple offenses," it could have imposed "consecutive full-term sentences, notwithstanding the provisions of section 654," for defendant's sex offenses, even if the offenses "constituted part of an indivisible course of conduct." (People v. Hicks (1993) 6 Cal.4th 784, 792, 796; see id. at p. 792 [interpreting section 667.6, subdivision (c) to "permit[] imposition of consecutive full-term sentences, notwithstanding the provisions of section 654, when the defendant is convicted of an [enumerated] offense . . . based upon the commission of a separate act that constituted part of an indivisible course of conduct"].)
A trial court's finding of separate intents or objectives is "a factual determination that must be sustained on appeal if supported by substantial evidence." (People v. Osband (1996) 13 Cal.4th 622, 730.) This deferential standard of review applies whether the trial court's findings are explicit or implicit. (People v. Lopez (2011) 198 Cal.App.4th 698, 717.) "Thus, '[w]e review the trial court's finding "in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence." ' " (Ibid.)
Relying primarily on Latimer, supra, 5 Cal.4th 1203, defendant contends that section 654 requires the punishment imposed for the sex offenses in counts 3-4 and 6-10 to be stayed because he cannot be punished for both the aggravated kidnappings (counts 5 and 11) and the sex offenses underlying those kidnappings as he acted with one objective.
In Latimer, the defendant kidnapped the victim, drove her to the desert, and raped her. (Latimer, supra, 5 Cal.4th at p. 1205.) The California Supreme Court held that section 654 applied, explaining that "[a]lthough the kidnapping and the rapes were separate acts, the evidence d[id] not suggest any intent or objective behind the kidnapping other than to facilitate the rapes." (Id. at p. 1216.) Thus, "section 654 bar[red] execution of sentence on the kidnapping count," which carried the lesser sentence. (Id. at pp. 1206, 1216.)
The Attorney General attempts to distinguish Latimer by asserting that there was evidence that defendant "harbored multiple intents for each kidnapping," which therefore permitted the trial court to punish him for the kidnappings and the underlying sex offenses. The Attorney General contends there was evidence that defendant kidnapped Nicole B. inside the RV while it was parked on Willowbrook Lane with "the intent not only to sexually assault [her], but to physically dominate her." With regard to the second kidnapping, which occurred when defendant moved Nicole B. from the street into the RV and then to the church parking lot, the Attorney General contends that defendant "was at least partly motivated by his desire to escape the scene."
However, "where there is a basis for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (McCoy, supra, 208 Cal.App.4th at p. 1339.) Thus, the charging document, the trial court's instructions, the jury's verdicts, and the prosecutor's arguments are considered when determining whether section 654 bars punishment. (Id. at pp. 1337, 1339; see also People v. McKinzie (2012) 54 Cal.4th 1302, 1369 [Attorney General conceding that defendant could not be punished for both carjacking and kidnapping for robbery because prosecutor argued victim's car was the object of the robbery], limited on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Jones (2012) 54 Cal.4th 350, 359 [amended information and prosecutor's argument established defendant's convictions were based on single act for which defendant could only be punished once]; People v. Siko (1988) 45 Cal.3d 820, 826 (Siko) [section 654 prohibited punishment for rape and sodomy because charging instrument and verdict identified rape and sodomy as basis for lewd conduct conviction and nothing in prosecutor's closing argument or the jury instructions suggested "any different emphasis"]; cf. People v. Centers (1999) 73 Cal.App.4th 84, 101 ["trial court could properly find multiple victims," and punish defendant accordingly, as "the information did not specify, and the jury did not make any finding regarding, the identity of any victim of the burglary or the personal firearm use," and the court's finding was supported by substantial evidence].)
Here, the information charged defendant with two counts of aggravated kidnapping "to commit [r]ape." Based on the trial court's instruction on the crime of aggravating kidnapping, the jury determined that defendant twice kidnapped Nicole B. with the intent "to commit spousal rape, oral copulation by force, sodomy by force, or sexual penetration by force," and that defendant had already formed that intent "[w]hen th[e] movement began." The verdict form for count 5 stated that the jury found defendant "GUILTY of Kidnapping to Commit Another Crime, in violation of . . . section 209(b)," and the verdict form for count 11 stated that the jury found defendant "GUILTY of Kidnap for Certain Crimes, in violation of section 209." In addition, the prosecutor argued to the jury regarding the first kidnapping that defendant's "intent . . . was solely to get [Nicole B.] in a spot where he could sexually assault her." The prosecutor argued that defendant kidnapped Nicole B. again when he took her from the public street to the church parking lot so that he "could continue" to sexually assault her, and told jurors to reject defendant's assertion that he drove to the parking lot to avoid getting a DUI.
On this record, we determine "there [was] a basis for identifying the specific factual basis for [the] verdict[s]." (McCoy, supra, 208 Cal.App.4th at p. 1339; see also Siko, supra, 45 Cal.3d at pp. 825-826.) Based on the verdict forms, the jury instructions, the charging document, and the prosecutor's arguments, the trial court was " 'foreclos[ed]' " from finding that defendant acted with an objective other than committing a felony sex offense when he kidnapped Nicole B.. (McCoy, supra, at p. 1340.) For this reason, we conclude that section 654 applies to prohibit unstayed punishment for the sex offenses underlying the kidnappings.
Rather than ordering the trial court to stay the sentences imposed on counts 3-4 and 6-10, we conclude that the interests of justice require us to remand the matter for resentencing. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184.) "On remand, the trial court is entitled to reconsider its entire sentencing scheme. [Citation.] However, in order to 'preclude vindictiveness and more generally to avoid penalizing a defendant for pursuing a successful appeal' [citation], [defendant] may not be sentenced on remand to a term in excess of his original sentence." (Ibid.)
3. Guidance on Remand
While it is not necessary to address the remaining claims, we exercise our discretion to do so in an effort to provide some guidance for the trial court.
a. Sentences for the Kidnapping Allegations Under Section 667 .8
Defendant raises several claims in the alternative pertaining to the sentences imposed for the kidnapping allegations. Defendant contends that even if section 654 does not require the punishment for the sex offenses underlying the aggravated kidnappings to be stayed, the plain language of section 667.8, subdivision (c) prohibits punishment for both the aggravated kidnappings in counts 5 and 11 and the kidnapping allegations attached to the sex offenses in counts 3-4 and 6-10. Defendant also contends that even if punishment is permitted for the aggravated kidnappings and the kidnapping allegations, section 667.8, subdivision (c) allows unstayed punishment to be imposed only once, and the trial court was required to impose and stay punishment for the remaining kidnapping allegations.
As stated above, the trial court imposed sentence for the kidnapping allegations attached to counts 3 and 7. It did not impose sentence for the kidnapping allegations attached to counts 4, 6, 8, 9, and 10.
" 'Issues of statutory interpretation are questions of law subject to de novo review.' " (People v. Martinez (2016) 5 Cal.App.5th 234, 240.) In interpreting a statute, " 'our fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language." (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) " 'Additionally, however, we must consider the [statutory language] in the context of the entire statute [citation] and the statutory scheme of which it is a part.' " (Phelps v. Stostad (1997) 16 Cal.4th 23, 32.) The words used in a statute " ' " 'must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]" ' " (Ibid.)
Section 667.8, subdivision (a) provides that "any person convicted of a felony violation of Section 261, 262, 264.1, 286, 288a, or 289 who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207 or 209, shall be punished by an additional term of nine years." Subdivision (c) of the statute states, in pertinent part, that "[o]nly one enhancement shall be imposed for a victim per incident," and "[t]he enhancement may be in addition to the punishment for either, but not both, of the following: [¶] (A) A violation of Section 207 or 209. [¶] (B) A violation of the sexual offenses enumerated in this section." (§ 667.8, subd. (c)(1), (3).)
We agree that the plain language of section 667.8, subdivision (c) prohibits the imposition of unstayed punishment to enhance the sentence imposed for a conviction of one of the enumerated sex offenses when a defendant is also punished for kidnapping under section 207 or 209. Although the Attorney General contends that the trial court's imposition of unstayed punishment for the aggravated kidnappings and for the kidnapping allegations was proper because "section 667.8 forbids the imposition of two enhancements, one for the kidnapping term and one for the sexual offense term," the statute cannot enhance kidnapping terms as it applies to "any person convicted of a felony violation of Section 261, 262, 264.1, 286, 288a, or 289." (§ 667.8, subd. (a).) Thus, section 667.8, subdivision (a) adds a nine-year term to the punishment for "a felony violation of Section 261, 262, 264.1, 286, 288a, or 289" for all offenders "who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207 or 209." (§ 667.8, subd. (a).) Because section 667.8, subdivision (a) solely enhances sentences imposed for violations of the enumerated sex offenses, the plain language of subdivision (c)(3) must prohibit the imposition of additional, unstayed punishment (the nine-year term) when the offender is also punished for kidnapping pursuant to section 207 or 209. (§ 667.8, subd. (c)(3).)
The Attorney General also relies on Latimer, supra, 5 Cal.4th at page 1215 and People v. Hernandez (1988) 46 Cal.3d 194, 203 to assert that "section 667.8 was enacted to serve as an exception to section 654." However, those cases were decided before the 1994 amendment to section 667.8, which added subdivision (c). (See Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 18, § 1, pp. 8579-8580.) Before subdivision (c) was enacted, section 667.8 did not prohibit the sentence enhancement to "be in addition to the punishment for either, but not both, of the following: [¶] (A) A violation of Section 207 or 209. [¶] (B) A violation of the sexual offenses enumerated in this section." (§ 667.8, subd. (c)(3); see Stats. 1986, ch. 249, § 8, p. 1316; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 18, § 1, p. 8579.)
For these reasons, we find that the plain language of section 667.8, subdivision (c) prohibits the imposition of unstayed punishment for both a kidnapping under section 207 or 209 and a finding pursuant to section 667.8 that the defendant kidnapped the victim for the purpose of committing a felony sex offense.
Defendant next contends that because section 667.8, subdivision (c)(1) permits the imposition of "[o]nly one enhancement . . . for a victim per incident," the trial court erred when it imposed unstayed punishment for the kidnapping allegations attached to both counts 3 and 7. Defendant relies on People v. Douglas (1995) 39 Cal.App.4th 1385 (Douglas) and on this court's decision in People v. Adams (1993) 19 Cal.App.4th 412 (Adams).
The crimes in both Douglas and Adams were committed before section 667.8 was amended to add subdivision (c). (Douglas, supra, 39 Cal.App.4th at p. 1390 [crimes committed in 1993]; Adams, supra, 19 Cal.App.4th at p. 419 [crimes committed in 1990]; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 18, § 1, pp. 8579-8580, eff. Nov. 30, 1994.)
In Douglas, the court addressed whether the defendant could be punished for an aggravated kidnapping and for findings pursuant to section 667.8 that he kidnapped the victim for the purpose of committing a felony sex offense. (Douglas, supra, 39 Cal.App.4th at p. 1392.) There, the defendant kidnapped the victim with the intent to rob her, then formed the intent to sexually assault her, and subsequently forcibly orally copulated and raped her. (Id. at pp. 1389-1390, 1392.) He was convicted of kidnapping to commit robbery, robbery, forcible oral copulation, and rape, and the jury found true the section 667.8 allegations that he kidnapped the victim for the purpose of committing forcible oral copulation and rape. (Id. at p. 1388.) Based on section 654's proscription against double punishment for the " ' "same act or omission," ' " the court held that the defendant could not be punished for the kidnapping with intent to rob and for the findings on the section 667.8 allegations because "[t]here was only one kidnapping; the kidnapping for robbery was the same as the kidnapping which gave rise to the two enhancements." (Id. at pp. 1393, 1395.) Although the defendant was properly punished separately for the kidnapping to rob and for the sex offenses because he entertained multiple criminal objectives, "the trial court had no grounds to punish defendant again for the identical kidnapping" through the sentence enhancement. (Id. at p. 1394.)
In Adams, this court addressed whether the trial court properly imposed the section 667.8 sentence enhancement on two counts of sodomy. (Adams, supra, 19 Cal.App.4th at p. 446.) The defendant in that case, along with his coworker, took the victim to three different locations where they perpetrated various sex offenses against her. (Id. at pp. 421-422.) The victim was sodomized at two of the locations. (Ibid.) This court held that the sentence enhancement imposed on one of the sodomy counts had to be stayed pursuant to section 654 based on the trial court's conclusion that the defendant's "multiple acts constituted a single course of conduct unified by a single intent." (Id. at p. 447.)
Douglas and Adams are factually inapposite because here, defendant committed two kidnappings, and, at sentencing, the trial court found they were part of "separate transactions." Although subdivision (c)(1) of section 667.8 states that "[o]nly one enhancement shall be imposed for a victim per incident," defendant has brought nothing to our attention that compels us to conclude that unstayed punishment pursuant to section 667.8 cannot be imposed on one sex offense perpetrated in the course of each kidnapping, so long as the offender is not also punished for the kidnapping. (§ 667.8, subd. (c)(1), (3).)
The Attorney General correctly observes that the abstract of judgment indicates that a consecutive nine-year term was imposed on the kidnapping allegation attached to count 7. It is unclear from the oral pronouncement of sentence whether this was the trial court's intention. In any event, we note that a consecutive term could not be properly imposed for the kidnapping allegation attached to count 7 because the trial court imposed a concurrent term of punishment for that count. Sentence enhancements cannot be sentenced separately from the underlying offense. (See People v. Smith (1985) 163 Cal.App.3d 908, 914; see also People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.)
Lastly, as both parties contend, punishment must be imposed for each of the kidnapping allegations found true, even if the punishment must be stayed pursuant to section 654 or section 667.8, subdivision (c). " 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citation.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' " (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 (Alford); see also § 12.) Thus, "the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment" or to comply with other statutory provisions. (Alford, supra, 180 Cal.App.4th at p. 1469; see also People v. Gonzalez (2008) 43 Cal.4th 1118, 1125, 1130 [interpreting section 12022.53 enhancement].)
California Rules of Court, rule 4.447(a) provides that a trial court "may not strike or dismiss an enhancement solely because imposition of the term is prohibited by law or exceeds limitations on the imposition of multiple enhancements. Instead, the court must: [¶] (1) Impose a sentence for the aggregate term of imprisonment computed without reference to those prohibitions or limitations; and [¶] (2) Stay execution of the part of the term that is prohibited or exceeds the applicable limitation. The stay will become permanent once the defendant finishes serving the part of the sentence that has not been stayed." The Advisory Committee comment to the rule recognizes that "[s]tatutory restrictions may prohibit or limit the imposition of an enhancement in certain situations," and cites as examples "sections 186.22(b)(1), 667(a)(2), 667.61(f), 1170.1(f) and (g), 12022.53(e)(2) and (f), and Vehicle Code section 23558." (Advisory Com. com., Cal. Rules of Court, rule 4.447.) The comment also provides that the "[p]resent practice of staying execution is followed to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence." (Ibid.)
California Rules of Court, rule 4.447(b) provides regarding multiple enhancements: "If a defendant is convicted of multiple enhancements of the same type, the court must either sentence each enhancement or, if authorized, strike the enhancement or its punishment. While the court may strike an enhancement, the court may not stay an enhancement except as provided in (a) or as authorized by section 654."
For these reasons, we agree that the trial court was obligated to impose a sentence for each of the jury's findings on the kidnapping allegations, even if the imposition of sentence was required to be stayed pursuant to section 654 or section 667.8, subdivision (c).
b. Punishment Imposed in Case No . M73933
Defendant contends that the punishment imposed on either count 2 or count 3 in case No. M73933 must be stayed pursuant to section 654. The Attorney General concedes that section 654 prohibits the imposition of unstayed punishment on both of the counts, but asserts that the punishment imposed on count 3 must be stayed because the trial court imposed a consecutive term on count 2.
As the parties observe, both convictions were based on the same act, namely, defendant's grabbing gesture toward A.O., and defendant acted with one intent. Thus, defendant cannot be punished for both offenses, and the punishment imposed on count 2 or count 3 must be stayed pursuant to section 654. (See § 654, subd. (a); Latimer, supra, 5 Cal.4th at p. 1208.) In addition, we note that, should the trial court again impose consecutive punishment for one count and concurrent punishment for the other count, it is the concurrent punishment, rather than the consecutive punishment, that should be stayed. (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 (Cantrell) ["a stayed sentence cannot be consecutive to a principal sentence"].)
We also observe that "[t]he one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654." (Cantrell, supra, 175 Cal.App.4th at p. 1164.)
The Attorney General also contends that if the trial court sentenced defendant in case No. F26257 pursuant to the enhanced penalty provisions for forcible sex offenses (§ 667.6, subd. (d)), instead of the determinate sentencing law (§ 1170 et seq.), the trial court was obligated to "impose[] a full term for case [No.] M73933, count 2, as the 'principal term' for the portion of [defendant's] sentence imposed pursuant to section 1170.1." Defendant asserts that we do not have jurisdiction to determine the claim because the Attorney General does not contend that the trial court imposed an unauthorized sentence, a claim which can be raised at any time, and the Attorney General did not independently appeal the sentence. Defendant also raises the fact that the prosecutor did not object to the sentence below.
We need not address the Attorney General's claim, or the propriety thereof, because we are remanding case Nos. F26257 and M73933 for resentencing. We note, however, that should the trial court decide on remand to exercise its discretion to sentence defendant for the forcible sex offenses in case No. F26257 pursuant to section 667.6, subdivision (c), the statute mandates that "[t]he term shall not be included in any determination pursuant to Section 1170.1." (§ 667.6, subd. (c).)
Defendant also contends that the sentencing minutes and the abstract of judgment reflect a $1,000 restitution fine that was not imposed by the trial court and that is unauthorized by law. (See § 1202.4, subd. (b)(1).) The Attorney General concedes the error. Because we are remanding the case for resentencing, which will result in new sentencing minutes and a new abstract of judgment, we will not order the abstract of judgment to be corrected.
We also observe that the abstract of judgment does not reflect the trial court's imposition of a consecutive term on count 2 in case No. M73933 that was imposed as a subordinate term to the sentence imposed in case No. F26257. Again, we will not order the abstract to be corrected because we are remanding the case for resentencing.
IV. DISPOSITION
The judgment is reversed and remanded for resentencing.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.