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People v. Vargas

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 29, 2018
No. F073606 (Cal. Ct. App. Aug. 29, 2018)

Opinion

F073606

08-29-2018

THE PEOPLE, Plaintiff and Respondent, v. MANUEL MENDOZA VARGAS, Defendant and Appellant.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF316597)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Retired Judge of Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

After spending an evening out at a nightclub, defendant Manuel Mendoza Vargas ended up asleep on a living room couch in an apartment where his brother-in-law's girlfriend, her 16-year-old daughter and her 15-year-old son lived. Defendant later entered the 16-year-old victim's unlocked bedroom and raped her twice. He was charged with two counts of rape by force (Pen. Code, § 261, subd. (a)(2)) (counts 1 and 3), two counts of rape by threat (§ 261, subd. (a)(6)) (counts 2 and 4), first degree robbery (§ 211) (count 5), criminal threats (§ 422) (count 6), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 7), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count 8). A jury convicted defendant of all eight counts and found true the burglary special circumstances allegations attached to counts 1 through 4. (§ 667.61, subds. (d)(4), (e)(2).)

All further statutory references are to the Penal Code unless otherwise stated.

The trial court imposed a total sentence of 50 years to life plus four years, as follows. Pursuant to section 667.61, subdivision (a), the trial court imposed indeterminate sentences of 25 years to life each on counts 1 through 4, and stayed the sentences on counts 2 and 4 under section 654. Pursuant to section 667.6, subdivision (d), the court determined the rapes "involve[d] the same victim on separate occasions" and imposed mandatory consecutive terms on counts 1 and 3. On the determinate counts, the court imposed the lower term of three years for robbery; the middle term of two years for criminal threats, stayed under section 654; one year (one-third of the middle term) for dissuading a witness by force or threat, consecutive to the robbery term; and the middle term of two years for dissuading a witness from reporting a crime, stayed under section 654.

On appeal, defendant claims the jury's findings on the burglary special circumstances allegations under section 667.61, subdivisions (d)(4) and (e)(2), are not supported by substantial evidence. He also claims the trial court erred in its instructions to the jury under CALCRIM Nos. 3180 (burglary special circumstances) and 3426 (voluntary intoxication). Finally, he claims his sentences of 25 years to life under section 667.61, subdivision (a), are unauthorized because the jury did not make the requisite finding that he intended to commit rape by force or threat; the trial court abused its discretion in determining the rapes involved the same victim on separate occasions under section 667.6, subdivision (d); and his cumulative sentence of 50 years to life constitutes cruel and/or unusual punishment under the federal and state Constitutions.

The People concede the trial court's instruction under CALCRIM No. 3180 was erroneous as given, but contend the error was not prejudicial. They otherwise dispute defendant's entitlement to any relief.

As explained herein, we conclude there is insufficient evidence supporting the jury's burglary special circumstances findings with respect to defendant's intent upon entry to the bedroom. (§§ 459, 667.61, subds. (d)(4), (e)(2).) Therefore, the jury's findings that defendant committed rape by force or threat during the commission of first degree burglary with intent to commit rape by force or threat (§ 667.61, subd. (d)(4)) and that he committed the crime of theft, rape, criminal threats or dissuading a witness during the commission of a burglary must be reversed (§ 667.61, subd. (e)(2)). This determination renders defendant's instructional challenge to CALCRIM No. 3180, his challenge to his sentence as unauthorized with respect to the jury's finding under section 667.61, subdivision (d)(4), and his claim that his sentence constitutes cruel and/or unusual punishment moot. We consider his instructional challenge to CALCRIM No. 3426 and his claim that the trial court abused its discretion in imposing consecutive sentences pursuant to section 667.6, subdivision (d), however, and find them without merit.

FACTUAL SUMMARY

I. Events Preceding Crimes

Around 10:30 or 11:00 p.m. on April 17, 2015, Maria and her friend, V., went to a nightclub in Tulare County. V. drove and her two young children stayed at Maria's apartment, where they were watched by Maria's 15-year-old son, M. Maria's 16-year-old daughter, L., arrived home that night around 11:00 p.m., changed her clothes, used the hallway bathroom and went to bed. She closed her bedroom door, but did not lock it. She testified her brother's bedroom door was open at the time.

At the club, Maria and V. met up with Maria's then-boyfriend, Alejandro, and defendant, who was Alejandro's brother-in-law. Maria had never met defendant before and did not talk with him much that night. V. had never met either man. Alejandro's ex-wife, who is also defendant's sister, was at the club as well and, at one point during the evening, she tried to start a fight with Maria. V. intervened and defendant separated the two women. Maria was largely unaware of what had occurred, however, because her back was turned, but she felt someone pull her hair.

V. testified defendant was drunk and bothered her some because he talked a lot about wanting to dance and wanting her phone number, which she declined to provide. The group left the club between 1:30 and 2:00 in the morning. Maria testified she only drank one Long Island iced tea. V. did not have anything to drink and defendant was drinking beer. Alejandro's brother, who gave him and defendant a ride to the club, had left by then, so V. drove Maria, Alejandro and defendant back to Maria's apartment. During the car ride, defendant was arguing with his sister about Alejandro over the phone. As they entered Maria's apartment, defendant asked who lived there and Maria said she did.

Maria laid down on one of the two couches in the living room while V. collected her sleeping children from Maria's bedroom and left. Alejandro and defendant conversed in the hallway and then took turns using the bathroom. L. had woken to the sound of voices and laughter. She recognized the voices of her mother, V., and Alejandro, but there was a male voice she did not recognize. She sent her mother a text at 2:20 a.m., telling her to be quiet, but Maria did not respond, as she did not see the text until later. V. testified all the lights were off in the apartment and it was very dark inside, even after she returned from getting her children.

Defendant laid down on the other couch in the living room. He seemed drunk, but had walked into the apartment on his own and was talking, and Maria did not see or hear him get sick. Alejandro joined Maria on the couch and the two engaged in some kissing. Defendant made a comment about not eating bread in front of the poor, and Maria teased him that he should have asked V. out. Maria testified the expression defendant used was a common one and she did not interpret it as suggestive of anything involving her or Alejandro. After defendant fell asleep on the couch, Maria went to bed. She did not notice whether her children's bedroom doors were open or shut. Sometime after Maria went into her bedroom, Alejandro joined her.

II. The Crimes

L. awoke to the feeling that someone was next to her and she glanced at the time on her cell phone, which was plugged into a charger by the bed. It was 3:09 a.m. She then looked over and saw a man she had never seen before next to her on the bed. The man put his hand over her mouth. He told her there was a man or men with her mother and if she screamed or said anything, he would send a text and her mother would be killed. The man pulled her shorts down.

L. told the man he had the chance to leave the room. She also told him that she had to get up at 4:00 a.m., and that she could not have sex with him because she was on her period. He responded he did not care and ordered her to take her tampon out. After she refused, he pulled it out himself and threw it on the floor. The man had his pants down, and he turned her toward the wall and penetrated her vagina with his penis while on top of her. At some point prior to penetration, he licked and then kissed her face, and touched her breasts under her shirt. L. tried pushing him off, but he was too strong and she asked him to stop multiple times. Although it was dark, there was enough light coming in the window from outside that L. could see the man's gray T-shirt and his face.

After some time, L. thought the man ejaculated. He pushed himself off of her and withdrew his penis. He then pulled L. by the backsides of her knees to the other side of the bed. Her thighs were hanging over the side of the bed and her feet were touching the floor. The man, who was then kneeling on the floor, penetrated L.'s vagina again with his penis. L. thought he ejaculated a second time. She estimated the acts may have lasted 20 minutes or more.

L.'s box spring and mattress sat directly on the floor.

After a noise came from Maria's room, the man ceased having intercourse with L., pulled his pants up, took her cell phone from where it was charging by the wall and left, shutting her bedroom door behind him. As he left, he again threatened to kill her mom if she said anything. L. then got up, placed a towel along the bottom of her bedroom door, turned on the light, and located her pepper spray and another cell phone, which she plugged in to charge so she could call 911. L. also picked up her discarded tampon from the floor and threw it in a trash bag. After changing her clothes, L. exited her bedroom and saw the man who raped her in the living room. Her keys were in the kitchen and she was afraid the man might see her if she tried to get them so she returned to her room and closed the door.

L. then exited her room again and tried to open her mother's bedroom door, but it was locked. Her brother's door was shut but unlocked so she entered his room and texted her mother with his cell phone. Although she could hear her mother's phone ring, her mother did not respond so she woke her brother and told him something was going to happen to their mom.

L. retrieved a dime from her bedroom and opened her mother's locked door with it. She then turned on the light and shook her mother awake. She told her mother and brother someone raped her. Maria dressed and L. handed her the pepper spray and pointed to defendant, who was asleep on the couch. L. then called 911 while Maria approached defendant, slapped at him, accused him of raping L., and sprayed him with the pepper spray.

Defendant denied raping L. and ran outside after he was sprayed. He returned and asked Maria what she put on his face, and he washed his face in the hall bathroom. Defendant was subsequently located outside walking near the apartment complex and detained.

III. Other Evidence

L. underwent a sexual assault examination later that morning. She informed the forensic nurse she felt some vaginal pain and was on her period. The nurse observed four superficial lacerations in L.'s perineal area, but the internal examination with a speculum was limited due to L.'s menstruation. Based on L.'s description of the assault, the nurse swabbed her right cheek and breasts as well as L.'s vaginal, cervical and anal areas.

L.'s room was examined for bodily fluids via ultraviolet light, but no fluids fluoresced. DNA from one of the anal swabs was subsequently matched to defendant and DNA from one of vaginal swabs was matched to defendant as the major contributor and L. as the minor contributor.

The defense called two character witnesses, both female relatives of defendant's who had lived with him for several months. They testified he was always respectful.

DISCUSSION

I. Sufficiency of the Evidence: Burglary Special CirmstancesAllegations

A. Background

Defendant was charged with two counts of rape by force and two counts of rape by threat. (§ 261, subds. (a)(2), (a)(6).) Attached to the four rape counts were the following two special circumstances allegations: (1) the rapes were committed during the commission of a burglary of the first degree ... with the intent to commit rape by force or threat (§ 667.61, subd. (d)(4)), and (2) the rapes were committed during the commission of a burglary (§ 667.61, subd. (e)(2)). As to each of the four rape counts, the jury found true the two special circumstances allegations. Under section 667.61, a jury's finding under subdivision (d)(4) mandates a sentence of 25 years to life, while a finding under section 667.61, subdivision (e)(2) mandates a sentence of 15 years to life. (§ 667.61, subds. (a), (b).)

First degree burglary is the burglary of an inhabited dwelling and second degree burglary is burglary of all other kinds. (§ 460.) The commission of a first degree burglary is an element of subdivision (d)(4) of section 667.61 while subdivision (e)(2) is not limited to first degree burglary. In this case, the distinction is immaterial, as there is no dispute the alleged burglary was of the first degree.

Defendant challenges the jury's findings as unsupported by substantial evidence that he committed burglary with the intent to commit rape by force or threat under section 667.61, subdivision (d)(4), or with the intent to commit theft, rape, criminal threats or dissuading a witness under section 667.61, subdivision (e)(2). He points out there was no evidence he knew L. or anyone else was in the room and, therefore, he could not have entered the room intending to commit rape by force or threat, or intending to make criminal threats or dissuade a witness. With respect to theft as a motive, he points to the absence of any evidence he entered the room intending to steal anything.

In accordance with the prosecutor's theory underlying subdivision (e)(2) of section 667.61, the jury was instructed that it had to find defendant entered the room intending "to commit theft or rape or criminal threats or dissuading a witness."

The People respond that the evidence supports an inference defendant entered the bedroom with the intent to commit rape by force or threat. The People rely on defendant's failure to leave the room once he entered and discovered L. inside. They argue that instead, he entered the bedroom, went over to L., covered her mouth when she awakened, threatened her and then raped her.

Intent is generally proved through circumstantial evidence (People v. Abilez (2007) 41 Cal.4th 472, 508), but, as we shall explain, in this case the jury's special circumstances findings are not supported by substantial evidence of intent and must be reversed.

B. Standard of Review

"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)

"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt.'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 36; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

C. Analysis

Subdivisions (d)(4) and(e)(2) of section 667.61 both involve the special circumstance of burglary and, as such, require the prosecutor to prove a defendant committed a qualifying offense, or offenses, during the commission of a burglary. "The crime of burglary consists of an act—unlawful entry—accompanied by the 'intent to commit grand or petit larceny or any felony.' (§ 459.) One may b[e] liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed." (People v. Montoya (1994) 7 Cal.4th 1027, 1041-1042, fn. omitted; accord, People v. Harris (2013) 57 Cal.4th 804, 842; Magness v. Superior Court (2012) 54 Cal.4th 270, 273).

It is uncontroverted that Maria consented to defendant's presence inside her apartment, but not to his entry into L.'s bedroom or any other bedroom. As well, there is no dispute that entry without consent into a bedroom within a house may satisfy the element of unlawful entry. (People v. Sparks (2002) 28 Cal.4th 71, 86-88; accord, People v. Garcia (2016) 62 Cal.4th 1116, 1123.) The issue here is the absence of evidence that defendant entered L.'s bedroom with the requisite felonious intent.

In attempting to prove the burglary special circumstances allegations, the prosecutor relied on the same reasoning the People now pursue on appeal: defendant's subsequent felonious actions in the bedroom evidence his felonious intent in entering the bedroom. With respect to the special circumstance allegation of burglary with intent to commit rape by force or threat under section 667.61, subdivision (d)(4), the prosecutor argued:

"And how do we know what he intended to do, ladies and gentlemen, is by his actions. He went into her bedroom. And she said the first thing she remembers is waking up to him laying by her and he covers her mouth. When he went in there, he wasn't saying, 'Oh, Maria, I thought it was you. My mistake. Let me get out of here.'

"No. The testimony came out that the defendant had used the bathroom in that house. The bathroom is the first door down the hallway. And the testimony that came out was the bathroom door opens even a different direction than the bedrooms open.

"You saw the pictures of the bathroom. There's a sink. There's a toilet. You saw pictures of [L.'s] bedroom. There's no sink. There's no toilet in that bedroom.

"His intent was to go inside of that room and to rape [L.] He covered her mouth, and he told her that someone was in the bedroom with her mom. He said 'with your mom.' I submit to you he knew that was [L.'s] bedroom or a female was in that bedroom."

With respect to the other burglary special circumstance allegation under section 667.61, subdivision (e)(2), the prosecutor argued:

"I submit to you from the beginning his whole intent when he first went into that bedroom was to commit rape. No other reason to go in there, lay on [L.'s] bed, cover her mouth and make those threats.

"But if you don't agree, you can say that he entered with intent to at least commit a theft, to commit criminal threats, to dissuade a witness. Any of those or the rape. You do not need to all agree on which one of those he intended to commit.

"We know that, based upon the testimony, in the early morning hours he didn't go into [L.'s] room just to hang out and talk to a 16-year-old. And, again, we know his immediate statement to [L.] shows intent of what he went in there for.

"[L.] didn't even know him. He had absolutely no reason to be inside of her room except for one thing on his mind."

On appeal, the People argue that "[defendant's] conduct subsequent to entering [L.'s] bedroom reasonably supports the inference that he entered her bedroom with the intent to rape her." During oral argument, counsel for the People conceded there is no evidence in the record that defendant knew Maria had a daughter in that bedroom, but counsel nevertheless maintained that the fact L. awoke in the early morning hours to find defendant next to her was sufficient to support a reasonable inference that he entered the bedroom with the requisite intent. These arguments overlook the need for sufficient evidence of defendant's felonious intent at the time of entry, however. (People v. Hernandez (2009 180 Cal.App.4th 337, 349; People v. Leon (2001) 91 Cal.App.4th 812, 817.) Under the circumstances here, defendant's conduct after entry is not, without something more, sufficient to evidence his intent when he entered.

The People rely on People v. Holt (1997) 15 Cal.4th 619, 669-670, for the proposition that defendant's conduct once inside the bedroom supports a reasonable inference that he entered the room intending to commit rape by force or threat. In People v. Holt, the defendant, who was going door to door selling cleaning supplies, entered the victim's house through a screen door, sexually assaulted and strangled her, and stole items from her home. (Id. at pp. 639-640.) Unlike in this case, however, the defendant saw the victim in her home prior to entry, and at trial he admitted intending to steal from the victim and also stated, "'[A]ll I knew was I was going straight for her.'" (Id. at p. 670.) Thus, the facts supporting the jury's finding in People v. Holt are readily distinguishable from those here. To be clear, a defendant's conduct after entry may well be relevant to the inquiry, but the focus is on whether the evidence adduced is sufficient to support a finding of intent. (Id. at pp. 669-670.)

"'"[A] burglary is complete upon the slightest partial entry of any kind, with the requisite intent ...."'" (People v. McEntire (2016) 247 Cal.App.4th 484, 491, quoting People v. Valencia (2002) 28 Cal.4th 1, 8, disapproved on other grounds by People v. Yarbrough (2012) 54 Cal.4th 889, 894.) Defendant's act of opening L.'s door to enter suffices to establish burglary so long as there is evidence he possessed the requisite intent at the time of entry. As we stated, intent is often proven by circumstantial evidence (People v. Abilez, supra, 41 Cal.4th at p. 508), but in this case, there was no forced entry to rely on (e.g., People v. Stewart (1952) 113 Cal.App.2d 687, 691 [intent could be reasonably inferred from unlawful, forcible entry]), no evidence defendant knew that L. or anyone else was in the bedroom, and no evidence he entered intending to commit theft. "Inferences drawn from the evidence must be logical and reasonable, not merely speculative." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)

We note the issue of whether L.'s bedroom opened inward or outward was mentioned by the People during oral argument. The evidence establishes the door opened inward, but, again, the issue is whether there is any credible evidence to support a reasonable inference that defendant, at the time he opened the door to enter the bedroom, possessed the requisite felonious intent.

L. was asleep and her bedroom door was shut when the group entered the apartment. Defendant did not know Maria or her family, he had never been to the apartment before, and there were no family photos in view. Maria did not talk to defendant about her children and she did not hear anyone else talking to defendant about her having a daughter in the residence. Maria had a brief conversation regarding her daughter at the club with V., but it was so loud V. had to lean over to talk to Maria. Maria also testified Alejandro and defendant watched her cell phone for her while she danced, incoming text messages display on the screen and her daughter sent her an unspecified message while she was at the club. However, Maria only heard defendant speak Spanish that night and she could not recall if L.'s texts were sent in English or Spanish. L. was listed in Maria's phone by her first name, but there is no evidence of the message's content nor any evidence supporting a reasonable inference that defendant was able to see the message and understand the message or that he read the message and deduced the sender was Maria's daughter.

It is certainly possible that defendant knew about L., perhaps through conversing with Alejandro at some point, but it is also possible he may have initially been looking for the bathroom. Although the People point out defendant had already used the bathroom once, he had never been in the apartment before, it was dark and he had been drinking. Under these circumstances, it is not unreasonable that he may have been looking for the bathroom a second time. He also may have been looking for an empty bed to sleep in or he may have been snooping around for some other reason. We simply do not know because there are no facts in evidence supporting an inference one way or the other, let alone a reasonable inference, and mere speculation will not suffice.

To the extent defendant's threats to harm L.'s mother, made after L. awoke to find defendant lying next to her on the bed, support an inference that he knew Maria had a daughter in the apartment at the time he entered the bedroom, it is at least equally inferable from the evidence that he realized he was in Maria's daughter's room after he entered. Notably, defendant already knew he was in Maria's apartment, L. testified there was some light coming into the bedroom through the exterior window, Deputy Jones described the bedroom as "a typical young girl's room," and photographs of the bedroom introduced into evidence show bedding and some room decorations typical for a girl. (See People v. Zamudio, supra, 43 Cal.4th at pp. 357-358 ["'[I]t is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence ....'"].)

The prosecutor focused in part on M.'s door during argument. L. testified M.'s door was open at around 11:00 p.m., when she came home, but shut after the rape. M. testified, however, that when he went to sleep, he and his sister were home and he shut his bedroom door. This suggests M.'s door was open when L. came home, as she testified, but thereafter shut by M. when he went to bed, as he testified. There is also some evidence, by way of a detective's testimony, that M.'s door was open when he went to sleep. As such, it is possible that defendant closed M.'s door, as the prosecutor suggested, but it is also possible M., his mother or Alejandro closed it, and even if defendant closed the door, this does not evidence his knowledge that L. or someone else was in the other bedroom behind the closed door.

It bears repeating that "'[a]n inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.' (Evid. Code, § 600, subd. (b).) However, '[a] reasonable inference ... "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] ... A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence." [Citation.]'" (People v. Davis (2013) 57 Cal.4th 353, 360.) In this case, the evidence is not sufficient to support a reasonable inference that defendant entered L.'s bedroom with the requisite felonious intent. The absence of substantial evidence that defendant entered L.'s bedroom with the intent to rape her by force or threat is fatal to the jury's finding under subdivision (d)(4) of section 667.61, and the absence of substantial evidence that defendant entered the bedroom with the intent to commit theft or rape, or make criminal threats or dissuade a witness is fatal to the jury's finding under subdivision (e)(2) of section 667.61. Accordingly, the jury's findings as to the burglary special circumstances allegations must be revered.

II. Instructional Error: Voluntary Intoxication

A. Background

Pursuant to CALCRIM No. 3426, the trial court instructed the jury as follows:

The portion of the instruction defendant asserts is erroneous is italicized.

"You may consider evidence, if any, of voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to do the act required.

"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.

"In connection with the charge of first-degree residential robbery in Count 5, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to remove property from the owner's possession permanently or for an extended period of time—hang on a minute—that the owner would be deprived of a major portion of the value or enjoyment of the property.

"In connection with the charge of criminal threats, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to make a statement that is understood as a threat.

"In connection with the charge of dissuading a witness by force or threat, the People have the burden of proving beyond a reasonable doubt
that the defendant acted with a specific intent to knowingly and maliciously prevent or dissuade a witness or victim or attempted to do so.

"In connection with the charge of dissuading a witness by force or threat in Count 8, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to prevent or dissuade a witness or victim or attempt to do so.

"In connection with the allegations in Count 1, 2, 3, and 4 of burglary, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to commit a larceny or felony.

"In connection with the allegations of Counts 1, 2, 3, and 4 of burglary with intent to commit sex offense, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent to commit the sex offense.

"You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to forcible rape, Counts 1 and 3.

"Voluntary intoxication is not a defense to rape by threat, Counts 2 and 4.

"Voluntary intoxication is not a defense to the lesser included offense of simple battery as to Counts 1, 2, 3, and 4.

"And voluntary intoxication is not a defense to the lesser included offense of simple assault, as to Counts 1, 2, 3, and 4." (Italics added.)

Defendant contends the court's instruction to the jury that it may consider the evidence of voluntary intoxication in effect informed the jury "that it had the discretion, but not the obligation, to consider evidence of [his] intoxication in relation to evidence of his commission of various offenses." Defendant contrasts this asserted shortcoming with CALJIC 4.21.1, which he states instructs the jury that it should consider voluntary intoxication.

B. Standard of Review

We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt, supra, 15 Cal.4th at p. 677; People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)

C. Analysis

As an initial matter, we note defendant's failure to cite any authority for the proposition that CALCRIM No. 3426 misstates the law. We also disagree with his characterization of the asserted error. It is within the jury's province, as the finder of fact, to accept or reject intoxication evidence, but in any event, the specific sentence defendant takes issue with does not inform the jury it may disregard a defendant's evidence of voluntary intoxication. Rather, the sentence informs the jury that evidence of voluntary intoxication may be considered only for a limited purpose. This is a correct statement of law and defendant does not argue otherwise. (§ 29.4; People v. Horton (1995) 11 Cal.4th 1068, 1118-1119; People v. Berg (2018) 23 Cal.App.5th 959, 968-970.) As such, we can discern no error.

Moreover, the asserted error is harmless under any standard of review. Substitution of the word "should" for the word "may" results in no practical difference. Either way, the sentence informs the jury of the limited purpose of evidence of voluntary intoxication.

State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.) Under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18, 24, courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16, 18; People v. Gonzalez (2012) 54 Cal.4th 643, 663).

III. Imposition of Consecutive Sentences Under Section 667.6, Subdivision (d)

A. Background

Finally, the trial court imposed mandatory consecutive sentences of 25 years to life on the forcible rape counts pursuant to section 667.6, subdivision (d), which provides in relevant part:

"A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) 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."

In finding defendant raped L. on separate occasions within the meaning of the statute, the trial court rule as follows.

"THE COURT: [M]y recollection was that the testimony was that he had ejaculated at the first occasion which was on the bed itself.

"That he then withdrew. Actually got up. Pulled her over to the side of the bed and then I was never clear whether he was standing on the side of the bed or kneeling on the side or what and then committed another act and ejaculated a second time. Is that accurate?
"[PROSECUTOR]: Yes.

"THE COURT: Is that accurate, [defense counsel]?

"[DEFENSE COUNSEL]: I think that she was a little unclear. I think she said he ejaculated a couple times at one point but she was a little unclear as to when and where.

"THE COURT: I think—my recollection is at one point, because there was some confusion, but one point she was asked did he ejaculate both times and I think she said yes. But in any event, it is clear he ejaculated the first time and then moved which distinguishes it from the issue of whether he is simply repositioning her and yet to ejaculate.

"As far as an appreciable period of time or not opportunity to reflect, there's, there's another case where the defendant actually there was a cigarette break. I think he allowed the victim to have a cigarette and then raped her again. And they said that was ample time. And that was five minutes, so somewhere between the ... two seconds to flip over and the five minutes but I think here under the evidence, the whole point being was there enough time for him to think about it[?] So it's not just moving her on the bed. It's enough time to think about it.

"And if you're getting up, walking around the bed, pulling somebody over, you have enough time to think about it.

"And in terms of the argument about his level of intoxication, we don't have any blood alcohol levels obviously but we do have leaving the bar he walked to the car and on the way home in the car he was on the telephone talking. When he got into the house, he walked into the house and he was talking there. And, of course, as was noted, he had the ability to commit this act.

"And he was talking the whole time there so whatever level of intoxication it was, the evidence indicates he was mentally alert sufficient to talk, make comments, even witty comments and that is not any indication that he was unable to reflect so I think he did have an opportunity for reflection and simply chose, made a deliberate choice to perpetuate a second assault."

B. Analysis

Defendant claims the trial court abused its discretion in finding that L. was raped on separate occasions, thereby subjecting him to mandatory consecutive sentences under subdivision (d) of section 667.6. Defendant argues "[t]he trial court's conclusion here that moving [L.] to another portion of the bed—which the court mistakenly found involved his getting up and walking around between the two acts—provided [defendant] with ample opportunity for reflection, justifying consecutive sentences, is unsupported by sufficient evidence."

On review, we will reverse the trial court's determination "'only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.'" (People v. King (2010) 183 Cal.App.4th 1281, 1325 (King), quoting People v. Garza (2003) 107 Cal.App.4th 1081, 1092 (Garza).)

Defendant argues the facts of this case "differ[] markedly" from those in People v. Corona (1988) 206 Cal.App.3d 13 (Corona), People v. Plaza (1995) 41 Cal.App.4th 377 (Plaza), Garza, supra, 107 Cal.App.4th 1081 and King, supra, 183 Cal.App.4th 1281, and are instead analogous to those in People v. Pena (1992) 7 Cal.App.4th 1294 (Pena), all of which considered "separate occasions" within the meaning of section 667.6, subdivision (d). Turning first to Corona, the defendant in that case kidnapped the victim from her home and drove off with her. After stopping the car, he kissed the victim, penetrated her vagina with his finger, kissed her genitals, and then penetrated her vagina with his penis. After raping her, the defendant exited the car. (Corona, supra, at p. 15.) He reentered the car five minutes later and raped her a second time. (Ibid.) The Court of Appeal affirmed the trial court's determination that the rapes occurred on "separate occasions" under section 667.6, subdivision (d), stating, "We see no grounds to fault an inference that in this interval [the] defendant had a reasonable opportunity to reflect upon his actions." (Corona, supra, at pp. 17-18, fn. omitted.) The court accepted the Attorney General's tacit concession that the sex crimes preceding the first rape did not support the imposition of consecutive sentences and concluded, "There is no evidence of any interval 'between' these sex crimes affording a reasonable opportunity for reflection; there was no cessation of sexually assaultive behavior hence [the] defendant did not 'resume[] sexually assaultive behavior.' Hence, the trial court erred in imposing sentence for those offenses under section 667.6, subdivision (d)." (Id. at p. 18.)

In Pena, the defendant raped the victim in her home and then "got off of her, twisted her by the legs violently, and orally copulated her." (Pena, supra, 7 Cal.App.4th at p. 1299.) The Court of Appeal reversed the trial court's imposition of consecutive sentences under section 667.6, subdivision (d), concluding that "nothing in the record ... indicates any appreciable interval 'between' the rape and oral copulation. After the rape, [the] appellant simply flipped the victim over and orally copulated her. The assault here was ... continuous. [The] [a]ppellant simply did not cease his sexually assaultive behavior, and, therefore, could not have 'resumed' sexually assaultive behavior." (Id. at p. 1316.)

In Plaza, the defendant was convicted of five sex offenses committed against a former girlfriend approximately one week after they broke up. (Plaza, supra, 41 Cal.App.4th at pp. 381-382.) The trial court imposed consecutive sentences under section 667.6, subdivision (d). (Plaza, supra, at p. 382.) The Court of Appeal affirmed, finding, "The first act of forced oral copulation (count 1) was in the victim's bathroom. Although [the defendant] continued to restrain [the victim], his assaultive sexual behavior then stopped as he pushed her into the bedroom, forced her onto the bed, grabbed her by her throat, ripped off her underwear and inserted his fingers into her vagina (count 4). [The defendant] then again stopped his assaultive sexual behavior, listened to [the victim's] answering machine, then punched three holes in the wall. Only then did he commit another act of oral copulation (count 2). [¶] At that point, although [the defendant] did not get up, he stopped what he was doing, removed his penis from [the victim's] mouth, slid down, repeatedly slapped her face and called her names over and over again for a period of about five minutes and, only after he was through verbally abusing her, kicked her legs apart and raped her (count 3). Although [the defendant] was not convicted of the rape charged in count 6 or the oral copulation charged in count 5, those acts of intercourse and oral copulation plus three telephone calls preceded the final act of oral copulation of which [the defendant] was convicted (count 7). [¶] It is clear, therefore, that in between each of the five separate offenses, [the defendant] 'had a reasonable opportunity to reflect upon his ... actions and nevertheless resumed [his] sexually assaultive behavior.'" (Id. at pp. 384-385, quoting § 667.6, subd. (d).)

In Garza, the victim accepted a ride from the defendant, whom she knew. (Garza, supra, 107 Cal.App.4th at p. 1086.) He parked his car by a warehouse and sexually assaulted her. (Id. at pp. 1086-1087.) Citing to Plaza, the Court of Appeal "conclude[d] the trial court here could reasonably have decided that counts 3, 7, and 15 (forcible oral copulation, rape, and forcible digital penetration) occurred on separate occasions. After [the] defendant forced the victim to orally copulate him, he let go of her neck, ordered her to strip, punched her in the eye, put his gun to her head and threatened to shoot her, and stripped along with her. That sequence of events afforded him ample opportunity to reflect on his actions and stop his sexual assault, but he nevertheless resumed it. Thus, [the] defendant's first act of rape was committed on a separate occasion from the forcible oral copulations. [Citation.] [¶] Similarly, [the] defendant had an adequate opportunity to reflect upon his actions between the time he inserted his finger in the victim's vagina and the commission of the first rape. During this interval, [the] defendant (1) began to play with the victim's chest; (2) put his gun on the back seat; (3) pulled the victim's legs around his shoulders and, finally, (4) forced his penis inside her vagina. A reasonable trier of fact could have found the defendant had adequate opportunity for reflection between these sex acts and that the acts therefore occurred on separate occasions for purposes of application of section 667.6, subdivision (d)." (Garza, supra, at pp. 1092-1093.)

Finally, in King, the defendant was an officer with the Los Angeles School Police Department. (King, supra, 183 Cal.App.4th at p. 1286.) He stopped a young woman late at night after she made an illegal U-turn and conducted a full body search of her, which included massaging her breasts inside her bra and digitally penetrating her twice. (Id. at p. 1287.) While the defendant was digitally penetrating her, some lights passed by and he removed his fingers. (Id. at p. 1290.) The victim testified the defendant "'kind of looked around. And he looked uneasy. But after the car passed by, he reinserted his fingers in [her] vagina and resumed searching' with his other hand." (Ibid.) The Court of Appeal affirmed the trial court's imposition of consecutive sentences for the two counts of digital penetration. (Id. at p. 1287.)

Although we agree with defendant that distinctions may be made between the facts in Corona, Plaza, Garza and King and those here, we do not agree with him that Pena compels the conclusion the trial court here erred. The California Supreme Court has described the "'separate occasions'" standard as broad and recognized that "the Courts of Appeal have not required a break of any specific duration or any change in physical location." (People v. Jones (2001) 25 Cal.4th 98, 104.) Further, defendant fails to acknowledge our decision in People v. Irvin (1996) 43 Cal.App.4th 1063, in which we explained, "To the extent the facts of Corona, Pena, or Plaza suggest a finding of 'separate occasions' requires a change of location or an obvious break in a perpetrator's behavior, we disagree. Subdivision (d) [of section 667.6] provides otherwise. What the trial court must decide is whether 'the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.' A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. Sexual acts, such as those committed by [the] defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way. Therefore, at sentencing a trial court could find a defendant had a 'reasonable opportunity to reflect upon his or her actions' even though the parties never changed physical locations and the parties 'merely' changed positions." (Id. at pp. 1070-1071.)

More recently, in People v. Solis (2012) 206 Cal.App.4th 1210, 1220, the Court of Appeal considered and rejected a challenge to section 667.6, subdivision (d), on the ground it was unconstitutionally vague. Although the court was not considering a challenge to the trial court's sentencing discretion, it considered Corona, Pena, Plaza, Garza, and King and disagreed with the defendant's argument that the decisions were inconsistent and left defendants to guess at the meaning of "separate occasions" under the statute. (People v. Solis, supra, at p. 1219.) The court stated, "It takes no particular depth of reasoning to be able to distinguish between a situation where a perpetrator engages in a continuous course of conduct involving multiple sex offenses with no break in between and one in which the individual offenses are separated by some other activity, either of the defendant or another, that interrupts the assault and affords the perpetrator an opportunity to reflect on what he or she is doing. The activity need not involve any type of movement of the victim and need not be of any particular duration. It may be nothing more than car lights going by that cause the perpetrator to pause and reflect before proceeding, as in King, or some activity not amounting to a sex offense, like pausing to listen to the victim's answering machine or punching the wall, as in Plaza. We believe a perpetrator can reasonably be held to recognize this distinction." (Id. at p. 1220.)

Turning to the facts of this case, L. testified defendant ejaculated during the first rape and she told the investigating detective the same thing. The record does not reflect defendant walked around the bed, as he points out, but the court's ruling did not turn on this single fact. The evidence, which includes L.'s statements to the investigating detective, shows that after raping L. on the side of the bed by the wall where she had been asleep, he ejaculated, withdrew his penis, moved off of her, and then repositioned her on the other side of the bed by pulling her from behind her knees so that her thighs hung off the bed and her feet touched the floor. He also repositioned himself so that he was kneeling on the floor on that side of the bed. He then raped L. a second time and again ejaculated.

We may not reverse the judgment unless no reasonable trier of fact could decide there was a reasonable opportunity for reflection. (King, supra, 183 Cal.App.4th at p. 1325; Garza, supra, 107 Cal.App.4th at p. 1092.) Although this is a close case, we cannot so conclude here and, accordingly, we reject defendant's claim that the trial court abused its discretion in finding he raped L. on separate occasions within the meaning of section 667.6, subdivision (d).

DISPOSITION

The burglary special circumstances findings under subdivisions (d)(4) and (e)(2) of Penal Code section 667.61 are reversed. The judgment is otherwise affirmed. This matter is remanded for resentencing, after which the trial court shall prepare an amended abstract of judgment and deliver it to the appropriate authorities.

/s/_________

MEEHAN, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
ELLISON, J.

Retired Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Vargas

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Aug 29, 2018
No. F073606 (Cal. Ct. App. Aug. 29, 2018)
Case details for

People v. Vargas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL MENDOZA VARGAS, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Aug 29, 2018

Citations

No. F073606 (Cal. Ct. App. Aug. 29, 2018)

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