NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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(Marin County Super. Ct. No. 143294A)
Defendant Terry Ray Hawes sexually assaulted Jane Doe while she was camping near Stinson Beach. A jury found him guilty of multiple offenses in a first trial. Following a mistrial on one count, a second jury found defendant guilty of penetration by a foreign object and with the infliction of great bodily injury. On appeal, defendant contends that the trial court erroneously revoked his self-representation status; abused its discretion by denying a continuance and refusing to order a new competency hearing; and misinstructed the jury. He also argues that retrial of a great bodily injury allegation attached to count 1 was barred by collateral estoppel and double jeopardy. Finally, he contends that the trial court committed various sentencing errors, and that the abstract of judgment must be amended. We agree with the last two contentions in part, but reject the others. We will, therefore, order the abstract of judgment corrected. We will also reverse the judgment and remand the matter for resentencing.
STATEMENT OF THE CASE
A seven-count information charged defendant Terry Ray Hawes with the rape of Jane Doe by foreign object (counts 1 and 2); aggravated assault (count 3); attempted forcible rape (count 4); criminal threats (count 5); assault with intent to commit rape (count 6); and battery with serious bodily injury (count 7); (Pen. Code, §§ 289, subd. (a)(1), 245, subd. (a)(1), 664/261, subd. (a)(2), 422, 220, 243, subd. (d)).
Unless otherwise indicated, all further statutory references are to the 2005 version of the Penal Code.
The information further alleged, among other things, that defendant personally inflicted great bodily injury on Jane Doe "in the commission of counts 1 and 2 within the meaning of section 667.61, subdivision (e)(3) (the "One Strike" law).
In September 2006, after trial counsel declared a doubt as to defendant's competency to stand trial, a jury found defendant incompetent to stand trial and he was committed to Atascadero State Hospital (ASH) pursuant to section 1370. In April 2009, the court found that defendant had been restored to competency pursuant to section 1372.
Trial by jury commenced June 12, 2009. On June 19, 2009, the jury convicted defendant of the rape by foreign object alleged in count 2, but found the great bodily injury allegation not true. The jury was unable to reach a verdict on the rape by foreign object alleged in count 1. The jury did convict defendant of the attempted forcible rape alleged in count 4, the criminal threats alleged in count 5, and assault with intent to commit rape alleged in count 6. The jury returned no findings on counts 3 (aggravated assault) and 7 (battery with serious bodily injury), having been instructed by the court that those counts were alternative charges to count 6, assault with intent to commit rape. The court declared a mistrial on count 1.
On July 21, 2009, defendant entered a plea of former jeopardy. Retrial on count 1 commenced July 30, 2009. On August 3, 2009, the court denied a defense motion to submit the question of former jeopardy to the jury. On August 4, 2009, the jury convicted defendant of rape by a foreign object and found true that defendant had personally inflicted great bodily injury on Jane Doe in the commission of the crime. The court sentenced defendant to a total indeterminate term of 33 years eight months to life.
STATEMENT OF THE FACTS
In August 2005, a friend dropped 28-year-old Jane Doe off at Muir Woods to start hiking. She camped out that night, and hiked all the next day, arriving in the town of Stinson Beach late in the afternoon. While she was looking at a bulletin board outside Becker's Market, a man approached her and asked if she had been hiking. They engaged in a conversation for about 30 minutes. They exchanged names. They walked out of town together, talking, and eventually parted ways. Jane decided to camp that night in a clearing by the side of the highway, and set out her sleeping bag.
After about 30 minutes, defendant walked into the campsite. He seemed surprised to see her and asked her if he could camp there for the night. She said, "[S]ure," and he placed his bag on the other side of the clearing. He was smoking a marijuana "joint" and offered her some. She took two puffs and decided she needed to get to sleep. She fell asleep, but then woke up needing to "use the restroom." Defendant turned on his flashlight as she walked out of the clearing, saying that she had startled him. She went back to her bag and fell asleep.
Defendant woke her while it was still dark. He was "hunched, crouching beside" her, telling her that it was time for her to go back to the Green Gulch Farms Zen Center (the Zen Center) where she worked and that he would hike there with her. He then announced he wanted to have sex with her. At this point, Jane tried to get up to reach her knife that was in her backpack, but the backpack was too far away. She was screaming and saying, "[N]o . . . [a] lot." She was on her stomach and defendant was on top of her; she was fighting him. He pulled her out of her sleeping bag and started "slamming" her head against the ground. She was trying to get away from him, but he had her in a headlock with his hand over her mouth. He told her that "he could fuck a live person or he could fuck a corpse. It was up to me. And that people would come into the campsite and find my body parts all over the site." Jane thought she was going to die. At that point, defendant punched her in the face and she lost consciousness.
Jane had no idea how long she was unconscious, but when she regained consciousness, she was on her stomach and naked below the waist, except that her shorts and underpants were around her lower legs. Defendant was on top of her and she could feel his erect penis on her buttocks, "trying to go inside me." She could not tell which part of her body he was trying to penetrate with his penis. His movements were "fast and frantic," and he had three or four fingers inside her vagina. He ejaculated on her back and told her she was "lucky that he came before he could get inside me." He gave her a blue towel from his backpack and told her to clean herself up. When she told him she needed to use the restroom, he told her she "could do it right there," and he kept his flashlight on her as she urinated. She cleaned his semen off her back and gave him back the towel.
She put her clothes back on. She was going to get back into her sleeping bag, but he told her to stand up. She went and sat down near his sleeping bag. She did not run at that point because it was dark and there was nowhere to go. Her head and throat hurt, she was sore, and she was afraid. Defendant took a prescription bottle out of his back pack, broke a pill in half and told her to take it. When she tried not to take it, he started to threaten her. She tried not to swallow it, but he grabbed her throat and made her open her mouth. When he saw the pill under her tongue he started choking her and telling her he "wasn't playing around" and she "had better swallow it." He told her it was Vicodin.
Defendant directed Jane to get into his sleeping bag with him so that if anyone came into the campsite "they'd think all my screaming was just us having fun." He allowed her to zip herself into her fleece liner, but then he unzipped the liner and started touching her. Defendant grabbed her breast, put his fingers in her vagina and moved them around, and kissed her neck. This went on for about 10 minutes. Jane was crying and asked him to stop. He eventually stopped after she told him that she had been raped when she was 12 and she couldn't go through all of that again. He apologized for everything he had done. When he apologized, she told him not to worry about it and engaged him in conversation for about three hours so that she could "stay alive until the sun came up."
When the sun came up, she told him if she did not get back to the Zen Center by 6:00 a.m., they would start looking for her. He agreed to walk her up the highway to the Zen Center. She was being friendly so that he would not think that she would go to the police when they were done. While he bandaged his foot with supplies from her first aid kit, Jane surreptitiously grabbed her knife out of her backpack so that she would have it with her while they walked on the highway.
On the highway, he started out in front of her, but she noticed that he was slowing down because his feet hurt. She started walking faster to get some distance between them and he got angry. Defendant told Jane that "there [were] many people that has [sic] fallen off those cliffs. He was sure there were many people that had fallen off the cliff and never been seen and kept telling me to slow down." Jane understood that statement to mean that he was going to push her off the cliff, "that he would kill me." He also reminded her she had promised not to tell anyone what happened—and that she had better keep her promise.
Jane saw a Jeep coming around the highway and ran in front of it, waving her arms. Defendant kept calling her name and telling her it wasn't a big deal, to come back, and that he was supposed to take her to the Zen Center. The person in the Jeep stopped. She got into the car and explained to the driver that she did not know defendant and that she needed to go.
At 6:00 a.m., on that morning, Eric Parada was driving towards Stinson Beach, where he worked, when he saw a man and a woman walking southbound on Highway 1. The woman, who was very young, had a black eye and bruises, and she flagged him down. Parada stopped for her. She looked "upset, stressed out, afraid." She got into Parada's car and asked him to drive away. The man tried to approach the car, but Parada told him to stay away. Parada then drove the young woman to the restaurant where he worked.
There, the manager of the restaurant helped her call the Zen Center for a ride. A mentor from the Zen Center drove Jane Doe to her own home where Jane took a long shower. Jane's roommate picked her up and took her to see Emila Heller, the director of the Zen Center. Emila called the police, who took Jane back to the campsite, and then to the hospital, where Jane was examined by medical staff. Jane had a black eye, her lip was cut open, there was a cut on her forehead and her cheek, bruises around her throat and bruises on her hips. According to Dr. Michael Fox, who saw her at the emergency room of Marin General Hospital at 4:00 p.m. on August 14, 2005, Jane "had a facial contusion or a blow, by her description, to the face and that as a result of that she'd had a concussion, which is that she had a blow with loss of consciousness. And that was my . . . diagnostic impression." She gave a detailed statement to the police, leaving out that she had smoked marijuana with defendant. She did tell police that defendant had a tattoo of a marijuana leaf on his upper left shoulder.
Photographs of the tattoo on defendant's shoulder were taken by Sergeant Sandra Scott of the Marin County Sheriff's Department on July 12, 2006 at the Marin County Jail. They were introduced into evidence.
Jane also told police that defendant had mentioned walking to a 7-Eleven store. A few days later, the police asked her to view footage from surveillance cameras in various 7-Eleven stores in the area. Jane recognized footage of defendant walking up to the store and around inside it. Later, she also identified defendant from a photo lineup, and she identified him in court.
The parties stipulated that half of a Vicodin tablet "would not be sufficient to significantly affect an average-sized adult who is the victim of a sexual assault so as to facilitate the commission of such an offense." They also stipulated that DNA tests performed on cigarette butts found at the campsite showed a positive match with defendant's DNA.
Defendant testified on his own behalf that he did not remember Jane Doe or anything that occurred in August of 2005. He blamed his memory loss on the forcible administration of medication. The court struck defendant's testimony as "incompetent" and instructed the jury to ignore it.
I. Defendant Did Not Unequivocally Assert His Right To Represent Himself.
Defendant argues that the trial court erred in revoking his right to self-representation, because his assertion of the right was timely, "hardly equivocal," and intelligent. Also, he points out that his behavior was not disruptive and he "successfully represented himself at the preliminary hearing." We disagree. On this record, we find defendant's adamant refusal to waive his right to counsel made his assertion of the right to self-representation highly equivocal. Therefore, the court did not err.
Although defendant refused to waive his right to counsel prior to the preliminary hearing, the magistrate court permitted him to represent himself at that hearing. At the arraignment held on July 21, 2006, defendant again stated that he wished to represent himself. Defendant was extensively questioned by the court about his understanding of the dangers of self-representation, and defendant indicated that he understood them.
Defendant stated he understood that he had a right to the effective assistance of a lawyer at all stages of the case, and if he could not afford a lawyer the court would appoint one to represent him. He also indicated he understood that the lawyer appointed for him "would be trained and experienced in legal proceedings and would perform various legal services" for him; that the appointed attorney would assist in jury selection; would give an opening statement, question witnesses against him and present witnesses, physical evidence and documentary evidence for him; make objections, if appropriate; argue the case to the jury; prepare and provide to the court favorable jury instructions; make motions and present argument at sentencing if he were convicted. Defendant also stated he understood that "without a lawyer [he] would have to do all of those things by [him]self . . . [and would have to] follow all of the rules of law governing jury selection, presentation of evidence, objections, argument, motions, and other matters even though he had no legal training or experience."
The court also explained the role of the prosecutor, and that the prosecutor's training and experience would probably "give her a great advantage over [him]" which defendant indicated he understood. He also indicated he understood that his custodial status would limit his ability to investigate, research and prepare his defense, and that a lawyer would not have those limitations. Defendant also indicated he understood that if he was disruptive or disorderly his right to represent himself could be revoked, that by representing himself he enhanced the "likelihood of a possible conviction and greater punishment," that he could not complain on appeal that he did not effectively represent himself, but that he could argue ineffective assistance if he were represented by a lawyer.
After reading the information to defendant, and ascertaining that defendant wished to be dressed in jail clothes for trial, the court stated: "Okay. So let me ask a few more questions regarding your waiver of the assistance of a lawyer." Defendant responded: "No, ma'am. No, ma'am. I signed no waiver. And I indicated no waiver of any rights whatsoever. And I am not waiving any rights. . . . [¶] I'm simply exercising my right under the 6th Amendment." Defendant indicated he did not understand that "[y]ou've indicated that you don't want a lawyer which means you're giving up the right to have one." Defendant adamantly maintained that he was not "giving up or waiving anything." Since defendant did not waive his right to counsel, the court continued the matter for appointment of counsel.
"Criminal defendants have the constitutional right to have an attorney represent them, and the right under the federal Constitution to represent themselves, but these rights are mutually exclusive. [Citations.] [T]he circumstance that a defendant must choose between the exclusive rights of being represented by an attorney or representing himself or herself does not create a conflict of interest . . . ." (People v. Moore (2011) 51 Cal.4th 1104, 1119-1120.) A request for self-representation under Faretta v. California (1975) 422 U.S. 806 must be unequivocal. "This rule 'is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation.' " (People v. Roldan (2005) 35 Cal.4th 646, 683, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) See also People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001-1002 ["Faretta motions must be both timely and unequivocal. Otherwise, defendants could plant reversible error in the record."]
In our view, defendant's request to represent himself was equivocal. He refused to acknowledge that he could represent himself, or he could be represented by an attorney, but he could not do both. In fact, he professed not to understand that "indicat[ing] that you don't want a lawyer . . . means you're giving up the right to have one." On this record, the court had no choice but to deny defendant's request, since it was not clear that defendant had intelligently understood and waived his right to counsel. No error appears.
II. Defendant Did Not Show Good Cause For A Continuance.
On June 10, 2009, the trial court denied defense counsel's motion to continue trial for two weeks. Defendant contends that the trial court's ruling was an abuse of discretion, and the error "was prejudicial as to both trials under any standard." We disagree. As we explain below, because trial counsel did not demonstrate good cause for a continuance, the trial court properly denied defendant's request for one.
Defense counsel Jon Rankin was appointed on July 24, 2006, and thereafter represented defendant throughout the proceedings below. On September 13, 2006, in the midst of in limine motions, criminal proceedings were suspended pursuant to section 1368. On December 12, 2006, trial commenced on defendant's competency. A jury was sworn and, on December 15, 2006, returned a verdict finding defendant incompetent to stand trial. Defendant was committed to a secured treatment facility and ordered to be involuntarily medicated.
On June 11, 2007, criminal proceedings were reinstated. On June 28, 2007, criminal proceedings were again suspended. On July 24, 2007, the court found, on the basis of doctors' reports, that defendant was incompetent to stand trial. The court ordered defendant to remain at a state hospital and involuntarily medicated "until needed in court for trial as the defendant decompensates in the interim without the administration of his medications."
On April 23, 2009, the court found on the basis of doctors' reports that defendant had been restored to competency. Criminal proceedings were reinstated. Jury trial on the criminal charges was set for June 12, 2009, with in limine motions set for June 11.
On May 20, 2009, the court was informed that defendant was not taking his medications in the jail and, as a result, he had decompensated again. However, ASH was willing to house defendant and keep him medicated until June 11. The court was prepared to sign the order transporting defendant to ASH at 6:00 a.m. the next day, even though Attorney Rankin was not able to be present in court, because defendant's mental decompensation had been "a continuing problem," and "it [is] imperative that Mr. Hawes be transported as soon as possible." The court instructed the clerk to contact Mr. Rankin immediately and inform him that "if [he] wants to put it on calendar, he can do that."
On May 27, 2009, Attorney Rankin filed an "objection to transfer from county jail to Atascadero." He asserted that he "will not be able to effectively communicate with the defendant in preparation for trial[; will] not be able to practically clothe defendant in a trial appropriate manner"; and complained that he had not seen defendant since May 3, 2009, and "therefore is unable to make an assessment of defendant's competency to stand trial," and would be "obliged to 'shoot from the hip' when defendant is returned." Defense counsel requested defendant's immediate retransfer to Marin County Jail. The court denied the request.
Two days before trial, on June 10, 2009, defense counsel filed a motion to continue (§ 1050) which alleged the same grounds in virtually identical terms as the earlier motion. Counsel averred that he had not seen defendant since May 3, 2009 because "[i]t was not possible for counsel to travel to [ASH] between defendant's removal and the date set for trial, notwithstanding the fact that a long weekend in the Central Coast area would have been unquestionably therapeutic for counsel." As a result, defense counsel anticipated that he "will have absolutely no opportunity to confer with defendant" prior to motions and jury selection, and "[t]here will be insufficient time within to properly clothe defendant prior to sitting him in front of prospective jurors." Finally, defense counsel opined that it would be "highly likely that there will be no meaningful opportunity to confer with defendant prior to commencement of the evidentiary portion of the trial" or assess defendant's competency to stand trial.
A hearing was held on defense counsel's motion the same day. Counsel declined the invitation to add to the showing made in his written motion. The district attorney opposed the request. The court denied the motion, indicating that the previous week the court had indicated that defendant would be transported to Napa State Hospital (Napa) on June 9, and the court assumed that had been done, not having heard otherwise.
A continuance may not be granted in a criminal case absent a showing of good cause. (§ 1050, subd. (e).) "Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party, under Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance." (Cal. Rules of Court, rule 4.113.) " 'Whether a defendant has affirmatively demonstrated that justice requires a continuance is a factual matter' " (People v. Rhodes (1989) 212 Cal.App.3d 541, 555), and we review the denial of a continuance for abuse of discretion. (People v. D 'Arcy (2010) 48 Cal.4th 257, 287.)
Defense counsel's showing falls short of this standard. Attorney Rankin had continuously represented defendant since July 24, 2006. In that time, he had to prepare for trial in 2006, and he had tried defendant's competency to stand trial to a jury. Under these circumstances, the trial court cannot be faulted if it assumed that defense counsel was very familiar with defendant's case and mental issues. Nor would it be unreasonable for the trial court to consider that if defense counsel deemed it important to the defense strategy to personally meet with defendant prior to trial, presumably defense counsel would have visited him at ASH sometime between May 3 and June 11, 2009. In any event, defendant had been transferred to Napa two days before trial, and defense counsel gave every indication that he would be visiting defendant there. Furthermore, given that defendant had been found competent to stand trial, and had been moved to ASH in an effort to maintain his competency to stand trial through involuntary medication, defense counsel's concerns about defendant's mental state would necessarily have to wait to be tested until defendant's return to county jail. Finally, inasmuch as defendant had on at least two occasions—July 21, 2006 and September 12, 2006—insisted that he wished to appear at trial in his jail clothes, the trial court was entitled to give counsel's concern on that score little weight. In short, the record supports the trial court's implied finding that the ends of justice would not be served by a two-week continuance of trial. No abuse of discretion appears.
III. A New Competency Hearing Was Not Required.
Defendant argues that the trial court abused its discretion when it failed to suspend criminal proceedings at the start of the second trial when defense counsel declared a doubt as to defendant's competency to stand trial. We disagree because, as we explain below, substantial evidence supports the trial court's finding that defendant's unresponsiveness was willful. The trial court's decision to continue with trial was not an abuse of discretion under these circumstances.
On July 30, 2009, defense counsel announced that he had "concerns" about defendant's mental condition. He had noticed a change in defendant's behavior. A week and a half earlier, when counsel visited defendant at Napa, they had productive discussions about things such as in-court behavior, court clothes, participation, and interactions between client and lawyer, "that now seem to be a problem." Also, defendant was noncommunicative, making it difficult for counsel "to make a definitive statement about a concern about his mental health." Counsel asked the court to make inquiries of the personnel at Napa to see if defendant was being given his medication, because "that's been a problem in the past where the [c]ourt has ordered medication that didn't happen for whatever reason." Defense counsel concluded that, "for whatever reason," defendant did not seem to be assisting in his defense in a rational manner. "Whether he's capable of it or not, I don't know." For the record, defense counsel described defendant's behavior: "He is leaned, propping his head up with his right arm for the entire length of the proceedings, has closed his eyes. . . . [H]e's refused to participate in any manner and has refused to communicate in any manner." The court agreed, but noted that on several occasions he had observed defendant communicate by responding to questions appropriately by shaking his head "no" although he did not speak.
The court indicated for the record that defendant was being housed at Napa under a "forced medication order" because of problems in the past with defendant refusing to take his medications. He was being transported from Napa to court and back on a daily basis. The court agreed that "it appears Mr. Hawes is behaving differently than he did the last trial. I also think that Mr. Hawes has a history of doing things his own way and refusing to accept valid advice on his own, of his own accord." The court was "not convinced this is not a situation of Mr. Hawes just simply thumbing his nose up at the [c]ourt and counsel." However, the court agreed to make inquires at Napa about defendant's medication compliance.
On August 3, 2009, the court indicated that it had received a message from defendant's doctor and nurse at Napa that defendant was taking his medication daily and that the doctor and nursing staff felt that defendant "is stable and competent and they have no concerns in that regard." The prosecutor had also reviewed messages from Dr. Sing, defendant's treating physician, confirming the court's information. The prosecutor had spoken with one of the nurses on defendant's treatment team who reported "there have been no incidents . . . of acting up or violence or difficulties, that he keeps to himself, but he is medicated every day."
Defense counsel stated that he believed, "irrespective of the fact he's taking his medication, [and that] there have been no incidents at Napa, I think his behavior is indicative of deep-seated mental issues that have interfered with his ability to rationally assist his lawyer in the defense of this case." The court ruled: "Ordinarily, . . . that statement would cause me to suspend criminal proceedings; however, because of the long history with regard to Mr. Hawes and my observations of his behavior, I think that he is choosing not to participate with his lawyer. I'm not a doctor, but his treating physician has been contacted and has indicated that Mr. Hawes is stable and, in his view, competent. [¶] And so I'm not going to make any changes with regard to this case or competency issues."
Both federal and state due process guarantees are violated when a person is tried or sentenced while he or she is incompetent. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Dunkle (2005) 36 Cal.4th 861, 885.) In addition, California statutory law provides, in relevant part: "A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) In People v. Jones (1991) 53 Cal.3d 1115, 1152 (Jones), the California Supreme Court held that "[w]hen the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing." "Evidence is 'substantial' if it raises a reasonable doubt about the defendant's competency to stand trial." (Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666.) All criminal proceedings must be suspended until "the question of the present mental competence of the defendant has been determined." (§ 1368, subd. (c).)
However, the Jones court also stated that "[w]hen a competency hearing has already been held and the defendant has been found competent to stand trial, . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it 'is presented with a substantial change of circumstances or with new evidence' casting a serious doubt on the validity of that finding." (Jones, supra, 53 Cal.3d at p. 1153.) The standard of proof for a substantial change of circumstances "is the same standard applied by the trial court in determining whether an original competency hearing should be held." (People v. Kaplan (2007) 149 Cal.App.4th 372, 376.) When considering a renewed motion, the court "may appropriately take its personal observations into account." (Jones, supra, at p. 1153.) Bizarre statements and actions alone do not require further inquiry. (People v. Marks (2003) 31 Cal.4th 197, 220.)
A trial court's decision whether to grant a competency hearing is reviewed for abuse of discretion. (People v. Ramos (2004) 34 Cal.4th 494, 507.) Under this deferential standard, " ' "[a]n appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." ' [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 33.)
As of July 30, 2009, when defense counsel announced that he had "concerns" about defendant's mental condition, defendant had been housed in a state mental hospital, and presumably medicated, for over two months.
Pointing to evidence in the record that his demeanor had changed from reasonably cooperative to uncommunicative with defense counsel, defendant contends that the trial court abused its discretion in denying the renewed motion to suspend criminal proceedings pending a second competency hearing in the face of a demonstrable change of circumstances. (See Jones, supra, 53 Cal.3d at p. 1153.) However, defense counsel failed to show that there was a substantial change in circumstances or that there was new evidence that cast serious doubt on the pretrial finding of competency. In requesting another competency hearing, counsel stated that defendant's behavior had changed, "for whatever reason," and defendant did not seem to be assisting in his defense in a rational manner. But "[w]hether he's capable of it or not, I don't know." In other words, defense counsel himself was cautious about attributing defendant's change of behavior to incompetence. He suggested that the court inquire of hospital staff whether defendant was taking his medication. The trial court did so, and learned that, in fact, defendant was taking daily medication and was not engaging in any disturbing behavior at the hospital. At this point, defense counsel argued that "irrespective of the fact he's taking his medication, [and that] there have been no incidents at Napa, I think his behavior is indicative of deep-seated mental issues that have interfered with his ability to rationally assist his lawyer in the defense of this case."
However, the question before the court was not whether defendant had deep-seated mental issues, but whether defendant had genuinely decompensated and, if so, whether decompensation made him legally incompetent to stand trial. The trial court here was well-acquainted with defendant's behavior over many years, including while he was medicated, while he was unmedicated, and while he was in the process of decompensating. And, by August 3, 2009, the trial court had observed defendant's behavior during two jury trials and numerous hearings. Moreover, the court had satisfied itself that defendant remained medicated, and was not acting bizarrely at the hospital. With this kind of background, we cannot say that the trial court abused its discretion in concluding that while defendant's new behavior may have been different from his earlier behavior, it was not indicative of decompensation or incompetence, but of his "history of doing things his own way and refusing to accept valid advice on his own, of his own accord." "[W]hen, as in this case, a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state." (Jones, supra, 53 Cal.3d at p. 1153.) The court properly denied defense counsel's request for a second competency hearing.
IV. Retrial On The Great Bodily Injury Allegation Attached To Count 1 Was Not Barred By Collateral Estoppel Or Double Jeopardy, And Former Jeopardy Did Not Need To Be Decided By The Jury.
Defendant contends that the first jury's not true finding on the great bodily injury allegation attached to count 2 precluded the retrial of the great bodily injury allegation attached to count 1, on double jeopardy and collateral estoppel grounds. We disagree because double jeopardy does not bar retrial after mistrial, and the test for application of collateral estoppel, which bars relitigation of identical issues, was not met here.
In this case, the first jury was unable to reach a verdict on count 1, which alleged the initial instance of digital penetration under section 289, or on the allegation, attached to count 1, that the defendant "personally inflicted great bodily injury on the said victim in the commission of the present offense . . . ." (§ 667.61, subd.(e)(3); Stats. 1998, ch. 936, § 9, p. 6875.) The first jury did convict defendant of count 2, which alleged a second count of digital penetration under section 289, pertaining to the second instance of digital penetration which occurred after defendant told Jane Doe to get into his sleeping bag with him. The jury did not find true the allegation, attached to that count, that defendant "personally inflicted great bodily injury on the said victim in the commission of the present offense . . . ." (§ 667.61, subd.(e)(3); Stats. 1998, ch. 936, § 9, p. 6875.) Prior to deliberating, the jury was instructed by the court: "If you find defendant guilty of the crimes charged in counts one and/or two, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jane Doe during the commission of the offense. [¶] You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Committing the crime of sexual penetration by force or fear is not by itself the infliction of great bodily injury." (Italics added.)
Double jeopardy does not ordinarily bar retrial of a charge after a mistrial has been declared. "The federal and state Constitutions protect persons against being twice placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Benton v. Maryland (1969) 395 U.S. 784, 794 [applying 5th Amend. to states through 14th Amend. due process clause]; Cal. Const., art. I, § 15.) Retrial after discharge of a jury without 'manifest' (in federal terminology) or 'legal' necessity violates the protections afforded under both charters. Jury deadlock constitutes necessity for declaration of a mistrial and permits retrial of the defendant. [Citations.] This principle is codified in section 1140, which prohibits discharge of the jury after the case is submitted to it until it has rendered a verdict, unless by consent of both parties or it appears there is no reasonable probability the jury can agree, and section 1141, which permits retrial under such circumstances. [Citations.] The determination whether there is a reasonable probability of agreement rests in the sound discretion of the trial court, based on consideration of all the factors before it. [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 425-426. See also People v. Anderson (2009) 47 Cal.4th 92, 108-109, 116 (Anderson).)Here, the jury deadlocked on count 1. Therefore, retrial on that count did not violate federal or state double jeopardy.
It is also possible that the jury deadlocked on the great bodily injury allegation. However, since the jury was not required to reach that issue if it did not convict on count 1, it would be speculative to infer that the jury could not agree on the allegation. "Conceptually, a penalty provision is an appendage that attaches to an offense and, if proven, prescribes additional punishment for the crime. [Citation.] [¶] Another important difference between a greater offense and a penalty provision . . . is that '[t]he jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged. [Citation.]' [I]t is only logical for the jury to decide first whether a defendant committed the substantive offense before considering whether the appended sentencing facts are true." (Anderson, supra, 47 Cal.4th at p. 115.)
Collateral estoppel is "embodied in the Fifth Amendment guarantee against double jeopardy." (Ashe v. Swenson (1970) 397 U.S. 436, 445 (Ashe).) As explained in Ashe, " '[c]ollateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Id. at p. 443.) However, for collateral estoppel to apply certain "threshold requirements" must be met: "1) the issue to be precluded must be identical to that decided in the prior proceeding; 2) the issue must have been actually litigated at that time; 3) the issue must have been necessarily decided; 4) the decision in the prior proceeding must be final and on the merits; and 5) the party against whom preclusion is sought must be in privity with the party to the former proceeding." (People v. Garcia (2006) 39 Cal.4th 1070, 1077; People v. Taylor (1974) 12 Cal.3d 686, 691, overruled on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 5.)
Factually, whether defendant inflicted great bodily injury on Jane Doe in the commission of count 1was not identical to whether he inflicted great bodily injury on her in the commission of count 2. Jane Doe testified that defendant woke her and announced that he wanted to have sex with her. When she fought him, he pulled her out of her sleeping bag and started "slamming" her head against the ground. She was trying to get away from him, but he had her in a headlock with his hand over her mouth. He told her that "he could fuck a live person or he could fuck a corpse. It was up to me. And that people would come into the campsite and find my body parts all over the site." Defendant punched her in the face and she lost consciousness. When she regained consciousness sometime later, she was on her stomach and she had no clothes on below her waist. Her shorts and underpants were around her lower legs. Defendant was on top of her and she could feel his erect penis on her buttocks, "trying to go inside me." He had three or four fingers inside her vagina. He ejaculated on her back and told her she was "lucky that he came before he could get inside me."
After that, he made her urinate in front of him, gave her half a Vicodin pill, and ordered her to get into his sleeping bag. In his sleeping bag, he fondled her breast, put his fingers in her vagina and moved them around, and kissed her neck for 10 minutes while Jane cried and asked him to stop. She did not testify that he hit her anymore during this second incident of digital penetration.
Although the prosecutor argued to the jury, with respect to the administration of Vicodin, that "during the commission of the crime includes the entire night," the trial court's instructions did not lend that argument any support. On the contrary, the trial court instructed the jury that the prosecutor had to prove the great bodily injury allegation for each discrete crime and return a separate finding for each discrete crime.
Defendant maintains that the only issue in dispute between the parties with respect to the great bodily injury allegation was whether Jane Doe's injuries were "significant or substantial . . . [;] greater than minor or moderate harm." However, the jury was not bound to see the issues exactly as the parties argued them. On these facts and instructions, the jury could well have determined that defendant did not inflict any injury on Jane Doe during the commission of count 2, substantial or otherwise.
Defendant reminds us that in Ashe, the court warned that "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." (Ashe, supra, 397 U.S. at p. 444.) However, the Ashe court went on to say: "Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' [Fn. omitted.] The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' " (Ibid., italics added.) Viewing the matter in a practical frame, we conclude that a rational jury could have grounded its verdict in count 2 upon an issue other than whether Jane Doe's injuries were substantial. Defendant has not demonstrated that the issue with respect to counts 1 and 2 were identical, or must have been necessarily decided. Therefore, collateral estoppel did not bar retrial of the great bodily injury allegation in connection with count 1.
Citing People v. Bechtel (1953) 41 Cal.2d 441 (Bechtel) and People v. Vigghiany (1960) 181 Cal.App.2d 621 (Vigghiany), defendant also argues that the trial court's failure to submit to the second jury the "disputed factual issues raised by" his plea of former acquittal and first trial was structural error requiring reversal per se. In our view, no such error occurred because defendant did not support his plea by proof that jeopardy had attached or that retrial was barred. Therefore, there was no disputed factual issue to submit to the jury.
As the Supreme Court explained: "[W]e have long held that special pleas or defenses raising issues collateral to the issue of guilt or innocence do not require a jury finding. (See People v. Newell (1923) 192 Cal. 659, 668 [Newell].)Unlike the elements of a criminal offense, a defendant may waive these pleas and has the burden of proof. Therefore, '[i]t is just as necessary to support special pleas by proof [citation] as it is to interpose the pleas, and the failure to do either is to be deemed a waiver of the defense.' [Citation.]" (People v. Hernandez (2000) 22 Cal.4th 512, 528 (conc. opn. of Brown, J.) If a plea of former jeopardy is not proven, the court may strike it or enter a directed verdict against the defendant. (Ibid.)
In Newell, the Supreme Court affirmed the trial court's order directing a verdict in favor of the prosecution on defendant's plea of once in jeopardy because the defendant failed to present any evidence on the issue. The Newell court observed: " 'When the guilt of defendant is in question, he is protected by the presumption of innocence; but when a former conviction or acquittal is in question he has no such presumption to aid him. Therefore, to sustain such a plea, the burden is upon defendant, and he must prove not only the former conviction, acquittal, or jeopardy, but also the identity of the parties and of the offenses, and the jurisdiction of the court' [citation]." (Newell, supra, 192 Cal. at p. 667.) " 'Or, as the court held in [Vigghiany, supra, 181 Cal.App.2d at page 631]: "Where the facts are uncontradicted and different inferences cannot be drawn, the decision on a plea of once in jeopardy . . . is one of law for the court to decide, not the jury." ' " (People v. Ceja (2003) 106 Cal.App.4th 1071, 1087. See also Bechtel, supra, 41 Cal.2d at p. 445 ["Whether jeopardy has attached is generally a question of fact, but when the evidence is uncontradicted or leads to a single conclusion a question of law is presented."].)
Here, the court declared a mistrial on count 1 after the jury declared itself deadlocked, and defendant has not demonstrated that the jury necessarily decided the identical issue with respect to count 2. Therefore, defendant did not sustain his plea of once in jeopardy. No error occurred.
V. No Instructional Error Occurred.
Defendant complains that the trial court erred in giving the jury supplemental instructions on great bodily injury because such instructions were coercive and unbalanced. For the reasons which follow, we disagree.
Following deliberations at the second trial on count 1, the jury returned its verdict on the substantive count, but reported that it was "unable to reach a unanimous decision on the enhancing allegation." In response to the court's questions, the foreperson indicated that the jury had taken three or four votes and was split four to eight, but that the votes on the allegation had changed from the first time the jury took a vote to the last time. The foreperson believed that "possibly" further instruction could assist the jury in reaching a unanimous decision. The following colloquy then took place:
THE COURT: "Tell me what you're thinking in that regard.
FOREPERSON: "With respect to the special allegation, there seems to be some questions of whether the injury took place in the commission of a rape or that the injury
result—that we just look at the injuries that resulted period and whether they are substantial and significant in and of themself [sic]. [¶] Does that make sense?
THE COURT: "Say it again for me.
FOREPERSON: "Whether we should just be looking at the injuries—
THE COURT: "The totality of the injuries?
FOREPERSON: "Whether the injuries and the evidence presented on injuries are significant and substantial in and of itself or should we be looking at commission—should we be looking at the other factors in the rape, perhaps intent during the rape or any other circumstances during the actual act, during the actual commission of the crime?
THE COURT: "Okay. Let me talk to the attorneys at the bench for a minute. (Discussion at the bench.)
THE COURT: "I'm having trouble understanding the question.
FOREPERSON: "Okay. And this is better.
THE COURT: "Let's try again.
FOREPERSON: "Okay. We're having trouble on the—actually, two things. The definition itself, is there any more instruction? Is there any more definition between moderate? [¶] I mean, we understand that there's a continuum here. We're trying to figure out whether it meets this level or not. [¶] And the second thing, is there a stopping point? When we consider the injury, does it have to last—when do we consider . . . the injury? Until now? During the commission of the crime? [¶] When do we stop considering the significance of the injury? Does it need to be a lasting injury?
THE COURT: "All right, that's a little more clear for me."
The court asked the jury to return to the jury room while it conferred with the attorneys. After reading about People v. Escobar (1992) 3 Cal.4th 740 (Escobar) in the Bench Note to CALCRIM No. 3160, the court concluded that, "[I]t would be fair and proper . . . for me to state that the injury does not—is not required to be prolonged and protracted harm to qualify as great body injury. And that if they have further questions, I can't be more specific. They need to follow the instructions of [CALCRIM No.] 3160, and that that's all the guidance I can provide for them."
Over a defense objection, the court instructed as follows: "[W]hat I'm about to do is read to you one of the instructions that you obviously have been looking at. And it's going to be modified just a little bit, although I'm not modifying it in writing. [¶] Before I do so, I want to remind you that you should take all of the instructions as a whole, and ordinarily we don't point out particular instructions. And I'm only doing so in response to the particular question that was submitted to me. [¶] If you look through the jury instructions, you'll see one that has the number 3160 defining great bodily injury. [¶] So, as I said, I'm going to read the entire instruction to you with some slight modifications and see if that assists you in your decision or not. [¶] If you find the defendant guilty of the crime charged in count one, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on Jane Doe in the commission of that crime . . . and return a separate finding. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Great bodily injury does not require a permanent, prolonged, or protracted impairment. [¶] Committing the crime of sexual penetration by force is not by itself the infliction of great bodily injury. You must determine if the defendant inflicted substantial physical injury as defined over and above that inherent in the crime itself. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved. [¶] So I'm going to hand everything back to you. Maybe that helps. Maybe it doesn't. But I'll let you all talk about that. And let me give this back to them as well. [¶] Thank you." Shortly thereafter, the jury returned its true finding on the great bodily injury allegation.
Defense counsel objected on the grounds that to so instruct "is clearly manipulative and points [the jury] in a direction in favor of the prosecution," contradicted the directive that the instructions be taken as a whole, and that no one instruction is more or less significant than any other, and that for the court to tell a deadlocked jury "oh, wait a minute, you can do this is tantamount to saying you should do this."
The supplemental instruction given here faithfully reflected the law as stated in Escobar, supra, 3 Cal.4th 740, and defendant does not argue otherwise. Instead, he argues that the instruction was "unduly coercive of a verdict and it was unbalanced in substance." Citing People v. Gainer (1977) 19 Cal.3d 835 (Gainer)and other cases involving variations of the "Allen charge" (Allen v. United States (1896) 164 U.S. 492) used to "dynamite" a unanimous verdict from a deadlocked jury, defendant contends that the instruction here similarly coerced the jury. He also faults the trial court for failing to admonish the jury that jurors should not give up conscientiously held beliefs just to secure a verdict or that the admonition to deliberate applies equally to both the majority and minority jurors. We disagree.
The instruction here is unlike the "dynamite charge" condemned in Gainer and other similar cases. (See Gainer, supra, 19 Cal.3d at pp. 841-842.) The instruction in Gainer did not provide guidance on a principle of substantive law on which the jury requested clarification. It was solely concerned with tutoring the jurors on the importance of reaching a unanimous verdict, and the relative roles of minority and majority jurors. Here, by contrast, the trial court clarified the definition of great bodily injury and did not touch on jury unanimity at all. In fact, the court did just the opposite, telling the jury that its instruction might help, and it might not help.
Defendant also argues that the instruction was unbalanced because it did not tell the jurors that, "while protracted impairment may not be required, jurors could consider the duration of the injury or impairment." However, the instruction did not in any way suggest that the jurors could not consider duration and, such consideration was implicit in the instruction as a whole. The jury's questions presented the court with the statutory obligation under section 1138 "to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985; People v. Giardino (2000) 82 Cal.App.4th 454, 465 [Under "section 1138 the court must attempt 'to clear up any instructional confusion expressed by the jury.' [Citation.]"].) The court here shouldered its responsibility under section 1138, and defendant cannot now be heard to complain that the court should have further clarified certain points, when he failed to seek such clarification at the time. "[I]f the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed." (People v. Welch (1999) 20 Cal.4th 701, 757, original italics [internal quotations omitted.].)
Furthermore, "to resolve the claim of a defective jury instruction we must determine whether its 'meaning was objectionable as communicated to the jury.' [Citation.] ' " 'Here the question is, how would a reasonable juror understand the instruction. [Citation.] In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.' " [Citation.]' " (People v. Yarbrough (2008) 169 Cal.App.4th 303, 316-317.) In our view, the supplementary instruction given here correctly stated the applicable law and could not have misled the jury into thinking that it should not consider the duration of the impairment, or should "strive for a unanimous verdict." (Weaver v. Thompson (9th Cir. 1999) 197 F.3d 359, 365.) We find no instructional error.
V. Conceded Error In The Imposition Of A Full Consecutive Sentence On Count 6 Requires A Remand For Resentencing.
Defendant contends that the trial court erroneously imposed a fully consecutive term for count 6, assault with intent to commit rape, pursuant to section 667.6. The People concede that the version of section 667.6, subdivision (d) extant in 2005, when defendant committed the offense, did not authorize the imposition of a fully consecutive sentence for a violation of section 220. For the following reasons, we agree with the parties and accept the concession.
Defendant committed the assault with intent to commit rape (§ 220) in 2005. At that time, section 667.6, subdivision (d) authorized imposition of a full, separate, and consecutive term for a violation of section 220 only if "the person has been convicted previously of violating Section 220." (§ 667.6, subd. (d); In re Rodney (1999) 73 Cal.App.4th 36, 40.) The statute was amended in 2006 to authorize a full, separate and consecutive term for a violation of section 220, without a prior conviction for the same offense. (Stats. 2006, ch. 337, § 32, pp. 2164-2165, approved by voters as Prop. 83, eff. Nov. 8, 2006.) Defendant did not have a prior conviction for violating section 220. Consistent with ex post facto principles, he could not be sentenced to a full, separate and consecutive term for count 6. Therefore, we must reverse and remand for resentencing on this count.
VII. Remand For Resentencing On Counts 4 And 5 Is Also Required.
Defendant also contends that the trial court violated section 654 in sentencing him to separate consecutive terms on counts 4 (attempted rape, §§ 664/261), 5 (criminal threats, § 422), and 6 (assault with intent to commit rape, § 220). He argues that the attempted rape (count 4) and the assault with intent to commit rape (count 6) were not separately punishable because "these counts were based on the initial attack and attempted penile penetration involving the same victim and transaction." He also argues that section 654 bars separate sentencing for the criminal threats conviction (count 5) because the offense consisted of the threats made "during the initial attack" and were "intended to facilitate the other charged sex offenses."
This argument was not made below. The argument made below, which is not renewed here, is that section 654 barred multiple punishment for assault with intent to commit rape in count 6 and the digital penetration with great bodily injury alleged in count 1. We address defendant's claim as to counts 4 and 6 because a sentence that violates section 654 is an unauthorized sentence which can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
The People counter that, under People v. Hicks (1993) 6 Cal.4th 784 (Hicks),"Penal Code section 654 does not 'prohibit the imposition of multiple punishment for separate sexual offenses committed during a continuous attack, "even where closely connected in time." ' " (Hicks, supra, at p. 788, fn. 4.) The People further argue that under People v. Harrison (1989) 48 Cal.3d 321, defendant "harbored multiple distinct objectives when committing count 4, attempted forcible rape, count 5, criminal threats, and count 6, assault with intent to commit rape." Our research indicates that neither defendant nor the People have correctly analyzed the issues posed by the court's sentencing choices in this case.
Certainly "[t]he sentencing relationship between the Determinate Sentencing Law (DSL), Indeterminate Sentencing Law (ISL), and violent sex crimes sentenced under section 667.6 can be difficult to understand." (Couzens & Bigelow, Sex Crimes: California Law and Procedure (The Rutter Group 2011) ¶ 13.14, p. 13-67.) Here, the trial court sentenced defendant under all three schemes: section 667.61 (indeterminate), 667.6, subdivision (d) (violent sex crimes) and 1170.1 (determinate). Pursuant to section 667.61, the court imposed an indeterminate sentence of 15 years to life for the digital penetration with great bodily injury in count 1. Pursuant to section 1170.1, the court designated count 4 (attempted rape) the principle term and imposed the aggravated term of four years. Also, pursuant to section 1170.1, the court imposed a one-third the midterm consecutive term of eight months for count 5 (criminal threats). These determinate terms were ordered to be served consecutively to the indeterminate term imposed for count 1.
In 2005, section 667.61 (the "One Strike" law) provided in relevant part:
"(b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).
"(c) This section shall apply to any of the following offenses:
"[¶] . . . [¶]"(f) If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).
"(5) A violation of subdivision (a) of Section 289. "[¶] . . . [¶]
"(e) The following circumstances shall apply to the offenses specified in subdivision (c):
"[¶] . . . [¶]
"(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
"[¶] . . . . [¶]
"(g) The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable." (Stats. 1998, ch. 936, § 9, pp. 6874-6876, italics added.)
Pursuant to section 667.6, the court then imposed full, consecutive, aggravated terms of eight years for count 2 (digital penetration, § 289), and six years for count 6 (assault with intent to commit rape, § 220), for a total term of 33 years 8 months to life.
In 2005, section 667.6, subdivisions (c) and (d) provided in relevant part: "(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of Section 220 . . . provided that the person has been convicted previously of violating Section 220 . . . [or] subdivision (a) of Section 289, . . . whether or not the crimes were committed during a single transaction. If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (d) A full, separate, and consecutive term shall be served for each violation of Section 220, . . . provided that the person has been convicted previously of violating Section 220 [or] subdivision (a) of Section 289 . . . if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. [¶] The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Stats. 2002, ch. 787, § 16, pp. 5003-5004, italics added.)
With respect to section 654, the court stated: "I disagree with the argument that the 220, count six is 654 [as] to the first count because of the enhancement." The court also indicated that it agreed with the probation report's recommendation that all sentences be consecutive and found the analysis at pages 14 and 15 very good.
The probation report reviewed the facts in light of the criteria affecting concurrent or consecutive sentences. "[R]ule PC 667.6(d) . . . indicates consecutive terms shall be imposed for each violation of an offense specified in subdivision (e) of this section even if the crime involves the same victim on separate occasions. [¶] The code sections define separate occasions . . . if the defendant had reasonable opportunity to reflect upon his actions and nevertheless resumed the sexually assaultive behavior." Applying this criteria, the probation report saw count 6 (assault with intent to commit rape) as reflected in defendant crouching beside the sleeping victim, and waking her by calling her name and saying "I want to fuck you," then grabbing her by the throat and strangling her when she tried to leave. "At this point the defendant had an opportunity to reflect upon his behavior and continued to proceed with the sexually assaultive behavior."
According to the report, the great bodily injury reflected in the jury's finding occurred when defendant "slam[med] the victim's head against the ground and end[ed] the battle by punching [her] in the face knocking her unconscious." Count 4 occurred when, "after the victim regain[ed] consciousness the defendant attempted to penetrate her . . . ." The report indicated that when defendant was unable to penetrate the victim, he had another opportunity to reflect and desist, but instead he chose to continue his sexually assaultive behavior by "reaching around and digitally penetrat[ing] the victim" in the commission of count 1. With respect to count 5, the report included all of the threats defendant made "[o]ver the course of the evening," beginning with his comment about the corpse and continuing with threats "during the attacks," and into the next morning with his threat to throw her over the cliffs if she told anyone.
Defendant appears to assume, we think erroneously, that the trial court sentenced him under 667.6, subdivision (c). Although the court never expressly stated whether it was sentencing under subdivision (c) or subdivision (d), sentencing under the latter provision is indicated. First, the probation report expressly stated that that defendant's sentencing was mandated by subdivision (d). Second, the court failed to state separate reasons for sentencing under the discretionary provisions of subdivision (c), as required by People v. Belmontes (1983) 34 Cal.3d 335, 344, 346. Third, subdivision (c) applies when the defendant has been convicted of one of the enumerated violent sex crimes, whereas as subdivision (d) applies when the defendant has been convicted of more than one. (People v. Pelayo (1999) 69 Cal.App.4th 115, 123-124.)
In this case, defendant was convicted of more than one enumerated offense: two counts of digital penetration against Jane Doe under section 289. Under current law, defendant would have had a third qualifying conviction for assault with intent to commit rape, and the trial court did sentence defendant to a fully consecutive term for that offense. However, as we discussed above, under the law as it existed in 2005, defendant's conviction for assault with intent to commit rape was not one of the enumerated offenses under section 667.6, subdivisions (c) or (d). This happenstance raises a number of considerations for resentencing, and also bears on defendant's multiple punishment contentions. Depending on whether defendant qualifies for discretionary sentencing under subdivision (c), or mandatory sentencing under subdivision (d), section 654 does or does not apply to defendant's convictions for the nonenumerated offenses in counts 4, 5, and 6, as we now explain.
Section 654 "literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the 'same act or omission.' [Citation.] But decisions interpreting section 654 have extended its protection 'to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time." [Citation.]' [Citations.] '[S]ection 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.]' [Citation.]" (Hicks, supra, 6 Cal.4th at p. 791.)
Since 1997, section 654 has provided, in pertinent part: "(a) 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." (Stats. 1997, ch. 410, §1, p. 2753.)
In People v. Siko (1988) 45 Cal.3d 820 (Siko), our Supreme Court held that "the enactment of Penal Code section 667.6, subdivision (c), which permits the imposition of consecutive full-term sentences when a defendant has been convicted of certain enumerated sexual offenses, did not repeal the prohibition of Penal Code section 654 against multiple punishment based upon 'the same act or omission.' " (Hicks, supra, 6 Cal.4th at p. 787.) Siko was convicted of lewd and lascivious conduct with a child under 14, forcible rape, forcible sodomy, and felonious assault. The trial court sentenced him to a three-year sentence for the assault and, pursuant to section 667.6, subdivision (c), to three consecutive full-term sentences of six years each for the three sex offenses. The issue before the Siko court was whether, by adopting section 667.6, subdivision (c), the Legislature intended to repeal the prohibition of section 654 against multiple punishment for multiple Penal Code violations based on the " 'same act or omission' " insofar as the serious sex offenses enumerated in subdivision (c) are concerned. The court determined that section 667.6, subdivision (c) did not repeal this aspect of section 654. Therefore, since the lewd and lascivious conduct conviction was based on two acts, not three—the forcible rape and the forcible sodomy—under section 654 defendant could be punished for two convictions, but not all three. (Siko, supra, at pp. 823-824.)
In Hicks, supra, 6 Cal.4th 784, the defendant was convicted of burglary and 10 sex offenses enumerated in section 667.6, subdivision (c). The court sentenced defendant to the three-year aggravated term for the burglary, and to full, consecutive eight-year terms for the sexual offenses. The issue before the court was "whether imposition of sentence on the burglary count constitutes an impermissible multiple punishment." (Hicks, supra, at p. 788.) Resolution of this issue required the court to address the question left unanswered in Siko: "whether the enactment of section 667.6, subdivision (c), created an exception to section 654 so as to permit the imposition of consecutive full-term sentences for enumerated offenses constituting separate acts committed during an 'indivisible' or 'single' transaction." (Hicks, supra, at p. 787.) The court held that it did.
Interpreting the statutory phrase "whether or not the crimes were committed during a single transaction," the Hicks court noted that, unlike section 1170.1, which expressly states that the general provisions governing consecutive sentences are subject to section 654, "section 667.6 (c), by its terms, is not expressly subject to section 654 . . . [and] contains no similar limitation." (Hicks, supra, 6 Cal.4th at pp. 791-792.) Therefore, the Hicks court concluded, "the only reasonable interpretation of section 667.6(c) is that it permits imposition of consecutive full-term sentences, notwithstanding the provisions of section 654, when the defendant is convicted of an offense enumerated in section 667.6(c), based upon the commission of a separate act that constituted part of an indivisible course of conduct." (Hicks, supra, at p. 792.)
The Hicks court concluded that section 654 did not bar separate punishment for the burglary, even though the burglary was the means of facilitating the sexual assault, and defendant committed the burglary with the intent to subject the victim to a sexual assault. (Hicks, supra, 6 Cal.4th at pp. 796-797.) It held that "the imposition of a sentence for the burglary conviction, in addition to the consecutive full-term sentences imposed for the related enumerated sexual offenses, was authorized by section 667.6(c), notwithstanding section 654's general proscription against multiple punishment for offenses committed during an indivisible course of conduct." (Hicks, supra, at p. 797.)
Applying these principles to the situation before us, we make the following observations. If defendant has only one qualifying conviction for a violent sex offense (count 2, forcible digital penetration), the discretionary provisions of subdivision (c) may apply to count 4 or to count 6, pursuant to Siko, supra, 45 Cal.3d 820. However, pursuant to Hicks, supra, 6 Cal.4th 784, section 654 would not bar punishment for his conviction in count 5 for criminal threats. On the other hand, if defendant has at least two qualifying convictions for enumerated sex offenses, then he is subject to mandatory full consecutive sentencing under subdivision (d), but section 654 would bar punishment for count 5. This is because the reasoning of Hicks does not apply to subdivision (d). Hicks held that subdivision (c) created an exception to section 654's prohibition of multiple punishment when the prohibition is premised on multiple offenses committed during a single, indivisible, course of conduct, since it expressly permitted consecutive sentences "whether or not the crimes were committed during a single transaction." (§ 667.6, subd. (c).) This language does not appear in section 667.6, subdivision (d). " ' "[W]hen different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended." ' " (People v. Albillar (2010) 51 Cal.4th 47, 56.)
Under Siko, section 654 may bar punishment for both count 4 (attempted rape) and count 6 (assault with intent to commit rape), depending on whether those convictions reflect two acts, or one act. (Siko, supra, 45 Cal.3d at pp. 823-824.) In this case, the trial court expressly stated that it was imposing sentence on counts 4 (attempted rape) and 5 (criminal threats) under section 1170.1.
Defendant has two convictions for forcible digital penetration. However, the court used one of those convictions, along with the great bodily injury finding, to increase the penalty for that crime from a determinate one to an indeterminate 15 years to life under section 667.61. It then designated the digital penetration conviction in count 2, and the nonqualifying assault with intent to commit rape conviction in count 6, as the two enumerated sex offenses that qualified defendant for mandatory full consecutive sentencing on those counts under section 667.6, subdivision (d). This raises the question whether it is permissible, under section 654, California Rules of Court, rule 4.425, or section 667.61, to use the same offense twice: once to increase the penalty under section 667.61, and once to enhance the sentence with full, consecutive sentences under section 667.6, subdivision (d). Because we determine that subdivision (f) of former section 667.61 bars the "dual use" of the same conviction to impose an indeterminate term under that section and full, consecutive sentences under section 667.6, subdivision (d), we need not reach the question whether section 654 or California Rules of Court, rule 4.425 require the same result.
As previously noted, in 2005 subdivision (f) of former section 667.61 provided: "If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e)." (Italics added.)
In this case, only a single pleaded and proven offense and circumstance brought section 667.61 into play: count 1, digital penetration with great bodily injury. Under the unambiguous, plain meaning of subdivision (f), the digital penetration in count 1, with its attendant great bodily injury finding, was required to be used to impose an increased penalty of 15 years to life, rather than as the basis for imposing punishment under any other law—such as the mandatory, full, consecutive sentence under section 667.6, subdivision (d)—unless the other law provided for a longer sentence. In this case, section 667.61's indeterminate term of 15 years to life was greater than the penalty that could be imposed under section 667.6, subdivision (d).
Since the digital penetration in count 1 could not be used to impose a mandatory, full, consecutive sentence under former section 667.6, subdivision (d), and since neither the attempted rape, nor the assault with intent to commit rape, qualified as enumerated sex offenses under former section 667.6, subdivision (d), defendant had only one enumerated sex offense that qualified him for enhanced punishment under either subdivision (c) or (d) of former section 667.6: the digital penetration conviction in count 2. Because defendant had only one such conviction, subdivision (c), and not subdivision (d) should have been applied at sentencing, and will apply on remand.
Subdivisions (c) and (d) of former (and current) sections 667.6 do not list attempts among the enumerated sex offenses.
Under subdivision (c) of former section 667.6, the court will have the discretion to impose a full, consecutive sentence for the digital penetration conviction in count 2, or impose a regular sentence, either concurrent or consecutive, under section 1170.1. However, under the reasoning of Hicks, supra, 6 Cal.4th 784, the "indivisible course of conduct" prong of section 654 will not apply to bar a separate punishment on count 5, criminal threats.
The question remains whether section 654 bars separate punishments for count 4, attempted forcible rape, and count 6, assault with intent to commit rape. Under Siko, supra, 45 Cal.3d 820, and Hicks, supra, 6 Cal.4th 784, the answer depends on whether both counts reflect the same act, or merely component parts of a single course of conduct. The cases cited by defendant do not address this point, because all three analyze the multiple punishment problem in terms of the "single objective/indivisible course of conduct" prong of section 654 analysis, a pathway foreclosed by Hicks. However, in other contexts it has been stated that "an assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.]" (People v. Rupp (1953) 41 Cal.2d 371, 382.) And, People v. Ramirez (1969) 2 Cal.App.3d 345 (Ramirez)held that section 654 prohibited multiple punishments for both attempted rape and assault with intent to commit rape because "[a]n attempt to commit rape by force and violence and an assault with intent to commit rape against the same victim and at the same time are but two different ways of describing the same criminal act." (Ramirez, supra, at p. 354; see also People v. De Porceri (2003) 106 Cal.App.4th 60, 68.)
Defendant cites People v. Bradley (1993) 15 Cal.App.4th 1144 (Bradley),disapproved on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 7; People v. Liakos (1982) 133 Cal.App.3d 721 (Liakos), and People v. Delgado (1973) 32 Cal.App.3d 242 (Delgado), disapproved on other grounds in People v. Rist (1976) 16 Cal.3d 211, 221, for this proposition. The Bradley court did bar concurrent sentences for assault with intent to commit rape and sexual battery, but it specifically noted that none of the crimes at issue "invoke[d] the exceptions to section 654 for completed sexual crimes under section 667.6." (Bradley, supra, 15 Cal.App.4th at pp. 1157, fn. 7.) In Liakos, "[t]he People concede[d] the assault was the means by which the oral copulation was attempted. Accordingly, they concede that the sentence in count two, attempted oral copulation, should be stayed pursuant to Penal Code section 654." (Liakos, supra, 133 Cal.App.3d at p. 725.) In Delgado, the court found that under section 654 "as judicially interpreted [t]he offenses of assault with intent to commit rape (count 1), assault by means likely to produce great bodily injury (count 2), and attempted forcible rape (count 4) constitute a course of criminal conduct indivisible because carried out with one intent and objective, to wit, to commit forcible rape. Multiple punishment for these offenses is therefore prohibited." (Delgado, supra, 32 Cal.App.3d at p. 255.)
Nevertheless, "[w]hether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." [Citation.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In this case, the trial court adopted the probation report's view that the assault with intent to commit rape was an act separate from the attempted rape, presenting defendant with a chance to reflect on his conduct and stop his attack. According to the probation report, which relied on the factual assertions made in the police report: "As the victim lies sleeping the defendant crouched beside her, began calling her name saying '[I] want to fuck you.' The victim is jolted awake and wants to leave. The defendant grabs the victim by the throat and begins to strangle her, a crime reflected by the elements of Count 6 [assault with intent to commit rape]. At this point, the defendant had an opportunity to reflect upon his behavior and continued to proceed with the sexually assaultive behavior. [¶] The victim fights the defendant off of her and struggles to get away; the defendant slams the victim's head against the ground and ends the battle by punching the victim in the face knocking her unconscious which we believe are the elements reflected by the enhancement [Penal Code section] 12022.8 alleged [in count 1]. After the victim regains consciousness the defendant attempted to penetrate her while she was lying on her stomach with her clothing pulled down, the elements of Count 4 [attempted rape]." (Italics added.)
We note that the probation department's summary of the offenses does not accurately reflect the victim's trial testimony in certain important respects. Jane did not testify that defendant grabbed her by the throat and tried to strangle her, before slamming her head against the ground, knocking her unconscious. Instead, Jane testified that when defendant said he wanted to have sex with her, she tried to get up to reach her knife, which was in her backpack, but the backpack was too far away. She was screaming and saying "No . . . [a] lot." She was on her stomach and defendant was on top of her; she was fighting him. He pulled her out of her sleeping bag and started "slamming" her head against the ground. She was trying to get away from him, but he had her in a headlock with his hand over her mouth. He told her that "he could fuck a live person or he could fuck a corpse. It was up to me. And that people would come into the campsite and find my body parts all over the site." At that point, defendant punched her in the face and she lost consciousness. When she regained consciousness, she was on her stomach, naked below the waist, and defendant was on top of her, frantically attempting to penetrate her with his penis and digitally penetrating her vagina with his fingers.
To the extent that the court relied on factual assertions in the probation report that were not borne out by Jane's testimony, its implied finding that the assault and the attempt were divisible acts is not supported by substantial evidence in the record. Thus, it was error for the court to separately punish the attempted rape and the assault to commit rape if the probation report was the foundation for the court's sentence. But Jane's actual testimony and other evidence may support a finding of two acts or one. Since the nature of the conceded error with respect to count 6 requires a remand for resentencing in any event, on remand the court should determine, based on Jane Doe's trial testimony and other evidence, whether the "separate act or omission" prong of section 654 analysis would be violated by imposition of punishment for both the assault and the attempt. We leave it to the trial judge to make the factual determination.
VIII. No Cunningham Error Occurred.
Defendant contends that "the complete failure to submit any of the relevant aggravators relied on by the court here to a jury" violates his Sixth Amendment right to a jury trial; therefore, the imposition of full, consecutive, aggravated terms pursuant to section 667.6, subdivisions (c) through (d) is per se reversible error.
Defendant's argument is based upon Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. 270 (Cunningham). In Apprendi, the United States Supreme Court held that " '[o]ther than the fact of a prior conviction 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citations.]" (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the court explained that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the court applied the reasoning of Apprendi and Blakely to California's determinate sentencing law and concluded that the middle term—not the upper term—is the "statutory maximum" for Apprendi purposes. (Cunningham, supra, 549 U.S. at p. 288.) The court held that, by allowing imposition of an upper-term sentence based on aggravating circumstances found solely by the judge, California's determinate sentencing law "violates Apprendi's bright-line rule" (ibid.), and that the upper term may be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. 293; former § 1170, subd. (b), Stats. 2004, ch. 747, § 1, pp. 5808-5809. See also People v. Sandoval (2007) 41 Cal.4th 825, 852-853 (Sandoval).)
However, defendant was sentenced on November 24, 2009. Section 1170, subdivision (b), was amended effective January 1, 2008. (Stats. 2007, ch. 740, § 1, p. 4728.) Thus, at the time defendant was sentenced, that statute provided that "the choice of the appropriate term shall rest within the sound discretion of the court." This amendment "cure[d] the constitutional defect in the statute" and permitted the trial court to impose an upper-term sentence based on facts not found by a jury beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 844.) Furthermore, application of the amendment to crimes committed before its effective date does not violate ex post facto or due process principles. (Id. at pp. 853-857.)
Defendant recognizes that state law is contrary to his arguments, but maintains them in order to exhaust state remedies. However, as an intermediate state appellate court, we are bound to follow California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) Therefore, we reject defendant's contention that the trial court's findings in aggravation of the sentence violate the Sixth Amendment.
IX. The Abstract Of Judgment Must Be Corrected.
Defendant argues, the People concede, and we agree, that the abstract of judgment incorrectly reflects that counts 2 and 6 were committed in 2006 (instead of 2005). We will order the trial court to amend the abstract of judgment to reflect the correct year.
The trial court correctly revoked defendant's self-representation status. The court did not abuse its discretion in refusing to order a new competency hearing and denying a continuance. The court did not misinstruct the jury. Retrial of the great bodily injury allegation was not barred by collateral estoppel or double jeopardy. Sentencing under section 667.6, subdivision (d) and 667.61 does not violate Apprendi, supra, 530 U.S. 466, or its progeny.
The trial court did err in sentencing defendant under section 667.6, subdivision (d) on count 6, and basing a section 654 determination on factual inaccuracies in the probation report. The matter is remanded for resentencing on counts 4, 5, and 6, consistent with the views expressed in this opinion. Finally, the abstract of judgment must be corrected as to the dates for counts 2 and 6.
The judgment is reversed and remanded for resentencing. The trial court is directed to amend the abstract of judgment to reflect that counts 2 and 6 were committed in 2005.
Marchiano, P.J. We concur: