Filed 10/24/17 P. v. Anderson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH CHANDLER ANDERSON,
Defendant and Appellant.
| C082543
(Super. Ct. No. 14F02094)
|
A jury found defendant Kenneth Chandler Anderson guilty of five counts of forcible sexual penetration (Pen. Code, § 289, subd. (a)(1))[1] with great bodily injury and tying or binding the victim allegations (§ 667.61, subds. (d)(6), (e)(5)) and one count of dissuading a witness (§ 136.1, subd. (b)(1)). The trial court sentenced defendant to a state prison term of 125 years to life plus three years.
On appeal, defendant contends the trial court erred in imposing mandatory consecutive terms for all five counts of forcible sexual penetration pursuant to section 667.6, subdivision (d). Finding possible error in only one of the consecutive terms, and finding that error harmless beyond a reasonable doubt, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Trial Evidence
In March 2014, defendant and the victim worked at a restaurant. The victim was the restaurant manager. When she worked the early shift, it was her responsibility to open the restaurant.
The victim opened the restaurant on March 25, 2014. After she unlocked the door and turned off the alarm, she was attacked by defendant,[2] who punched her in the head, sprayed mace in her eyes, and dragged her into the back room. The victim described the punches as being “pummeled,” and as she was being hit, she noticed that defendant was wearing black gloves. He used duct tape to tie the victim’s shirt over her head and taped her hands behind her back. Next, defendant forced the victim onto her stomach, removed her panties, and zip tied each leg to a different shelf. He then committed five sexual acts on the victim.
Defendant first put a dildo in the victim’s vagina. At first, the victim thought it was the assailant’s penis, but when he got up and walked into the office, she still felt it inside of her. The office was approximately 10 to 20 feet from where the defendant assaulted the victim. Defendant asked her if she ever had a penis that big before. Next, defendant put his finger inside her vagina. He also used lubricant on her during the attack. After removing his finger, defendant then asked the victim if she had ever been “fisted.” Defendant next placed his entire fist inside her vagina. Defendant got up and walked around between each of these three acts. This part of the sexual assault took between 30 and 40 minutes.
After the last vaginal penetration, defendant got up and went to the cash register in front of the store. When he returned, defendant placed his finger in the victim’s anus. He then placed an object, possibly the dildo, in her anus. This part of the assault ended after about 10 minutes. Defendant left the restaurant at approximately 8:00 a.m.
A Sacramento County Sherriff’s deputy responded to the restaurant at 8:28 a.m. When the deputy knocked on the door, the victim, who was on the phone, poked her head from around the corner. She was covered head to toe in blood, the phone she had been using was covered in blood, fresh blood was running through her face and hair, her shirt was ripped and torn, and the lower half of her body was covered by a piece of torn clothing. According to the deputy, “I’ve been to multiple homicide scenes, and it looked worse than any homicide scene I’ve been at.”
Verdicts and Sentencing
The jury found defendant guilty as charged on all counts and found the One Strike great bodily injury and tying and binding enhancement allegations true.
Before imposing sentence, the trial court noted defendant’s lack of remorse, as shown by a statement defendant made at sentencing trying to make his situation morally equivalent with the victim’s,[3] which the court called “ridiculous” and “insulting.” The court recounted the testimony of the first officer at the scene that she had never seen so much blood at a crime scene before, including homicide scenes. In selecting the upper term for count six, dissuading a witness, the court said the upper term was appropriate because defendant “carried out this crime in a methodical and preplanned manner that evinced a high level of sophistication and professionalism.” The court later stated: “[Y]ou selected this young woman. You knew she would be alone in the early morning hours to open up the store. You took advantage of your knowledge of the inner workings of that business, and you used such to commit crimes for which you thought you would avoid detection. You wore a disguise. You disguised your voice.”
Before imposing sentence, the court said: “This evidences some of the worst depravity I have ever seen in my 17 years on the bench, and that included five years in the District Attorney’s Office. You took advantage of a position of trust and confidence to commit these offenses. Finally, you have engaged in extremely violent conduct that poses a serious danger to our community. You should never walk free. Ever. You are a dangerous individual.”
The trial court then imposed consecutive terms for all five counts of forcible sexual penetration. The court found, “I am aware that there must be proof that each sexual assault was a separate and distinct act such that you had time to pause and reflect before continuing your assaults. I make that finding.” The court continued: “Between each crime charged in Counts 1 through 5, you had time to pause and reflect about your conduct. And in doing so, you continued to violently assault her in different ways, in different places, on the outside and inside of her body.”
After imposing the terms, the court said, “The aggregate term imposed, Mr. Anderson, will be three years consecutive to 125-years-to-life.[[4]] You deserve every minute of every day of every month of every year allowed under our law. If I could give you more time, I would. I’m giving you the most I can give you, and I hope you [will] never be released.”
DISCUSSION
Defendant’s sole contention is that the trial court erred by imposing consecutive sentences for the three counts involving vaginal penetration and the two counts involving anal penetration. The trial court imposed consecutive 25-year-to-life terms for each count, finding that each count involved a separate act and that defendant “had time to pause and reflect before continuing [his] assaults.”
Section 667.6, subdivision (d), provides in pertinent part: “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [(including forced oral copulation)] 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.” (Italics added.) Separate occasions need only be established by a preponderance of the evidence. (People v. Groves (2003) 107 Cal.App.4th 1227, 1231-1232 (Groves).) As this court has previously noted, “we may reverse 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. Garza (2003) 107 Cal.App.4th 1081, 1092.)
Defendant concedes that vaginal and anal assaults were separate but argues that the assaults within those groups were not. He asks us to vacate his sentence and remand for resentencing. We decline to do so.
“Under the broad standard established by Penal Code section 667.6, subdivision (d), 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.) “[T]he duration of time between the acts and the retention of the opportunity to attack again are not themselves determinative. [Citation.] . . . [W]here . . . the trial court finds the time and the circumstances were sufficient to afford the defendant with the required opportunity to reflect upon his actions and he thereafter resumed his sexually abusive conduct, that finding will be upheld unless no reasonable trier of fact could have so concluded.” (People v. Plaza (1995) 41 Cal.App.4th 377, 385 (Plaza).) The standard of proof regarding a finding of separate occasions is proof by a preponderance of the evidence. (Groves, supra, 107 Cal.App.4th at pp. 1230-1232.) When the trial court finds the sex offenses occurred on separate occasions, imposition of consecutive sentences is mandatory. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1489.)
The common thread in the cases where the evidence supported a finding of separate occasions is that something occurred between each of the sex crimes where defendant stopped, even if only momentarily, and then resumed his sexually assaultive behavior. (See, e.g., People v. King (2010) 183 Cal.App.4th 1281, 1290 [between acts of digital penetration, the defendant saw the lights of a passing car, removed his fingers from the victim’s vagina, looked around uneasily and then inserted fingers from his other hand]; Plaza, supra, 41 Cal.App.4th at pp. 380-381 [between first and second sex offense, the defendant moved the victim from the bathroom to the bedroom, forced her onto the bed, grabbed her by the throat and ripped off her underwear; before the next offense, the defendant listened to the victim’s answering machine and then punched holes in the wall; before the next offense, he repeatedly slapped the victim’s face and called her names over a period of several minutes].)
In determining whether the “separate occasions” standard is unconstitutionally vague, this court observed: “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.” (People v. Solis (2012) 206 Cal.App.4th 1210, 1220.)
The victim testified that when defendant first penetrated her vaginally, she thought he was using his penis, but still felt it inside of her when he got up and walked away. The victim said defendant went into the restaurant office at that time, which was 10 to 20 feet away. Defendant returned, asked the victim if she ever had a penis that big inside of her, and then inserted his finger into her vagina. He then removed his finger, got up, and asked the victim if she had ever been fisted, and placed his fist into her vagina. The victim testified that during the vaginal assaults, defendant got up and walked around between each different time he penetrated her.
All three of the counts involving vaginal penetration involved separate acts. The acts of walking away from the victim while the dildo was inside of her, returning, putting his finger into her vagina, shows a separation and an opportunity to reflect between the first and second vaginal assaults. The additional acts of getting up and walking around between the other two vaginal assaults also show separation and an opportunity for reflection. Furthermore, asking the victim if she ever had a penis that big inside of her between the dildo and finger penetration and later asking had she ever been fisted between the finger and fist penetration further demonstrates that defendant had time to pause and reflect between those assaults.
Since defendant got up, went to the cash register, and returned between the last vaginal and first anal assault, the vaginal and anal assaults are separate acts. However, unlike the vaginal assaults, there is essentially no evidence regarding the nature of the anal assaults, other than there were two assaults, one with a finger and another with an object, which together they took about 10 minutes.
The lack of evidence regarding the anal assaults does not require reversal of one of the consecutive terms. Section 667.6, subdivision (c), states in pertinent part: “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion.”
In selecting the upper term for the principal term for dissuading a witness in count six, the court said the upper term was appropriate because defendant “carried out this crime in a methodical and preplanned manner that evidenced a high level of sophistication and professionalism.” (See Cal. Rules of Court, rule 4.421(a)(8).)[5] However, during the sentencing hearing, the court also noted testimony about the amount of blood at the scene and remarked that the crime involved the “worst depravity” the court had ever seen, an apparent reference to the high degree of cruelty, viciousness and callousness displayed by defendant. (See rule 4.421(a)(1).) The court also found that defendant took advantage of a position of trust and lacked remorse. (See rules 4.421(a)(11), 4.408.)[6] The court also noted that weighted gloves were found in defendant’s bedroom, “[t]he type of an instrument that could be used to beat down a vulnerable young woman going to work, opening up the store, beaten down into submission,” findings that could be considered additional aggravating circumstances. (See rule 4.421(a)(2), (3).) Any one of these factors would justify imposing consecutive terms. (Rule 4.425(b).) The court also expressly stated its intent to impose the maximum possible term. The court’s comments and findings confirm that it is “virtually certain” the trial court would impose consecutive sentences on remand. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.) Thus, any error in applying section 667.6, subdivision (d), was harmless beyond a reasonable doubt.[7]
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
RAYE , P. J.
BLEASE , J.
[1] Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
[2] Since her assailant wore a ski mask during the attack, the victim could not identify him. Considerable evidence identified defendant as the attacker and defendant does not dispute he was the perpetrator; thus, we refer to the attacker as defendant. The evidence establishing that defendant was the perpetrator was overwhelming and includes the following: Defendant, the victim, and the store’s owner were the only people who had both a key to the store and the code to disarm the alarm system. There were no signs of a forced entry when the victim opened the restaurant that morning. The victim testified that defendant was the only person she knew who had a body type like that of her assailant. The assailant did not ask about surveillance cameras, the alarm system, or if anyone else was coming to the restaurant that morning. He threatened to kill her and her cousin Nichole (a former employee of the restaurant) or anyone else she loved if the victim stopped working there, and restaurant employees knew she was planning on leaving and had a new job lined up. The victim’s car keys were found in defendant’s car, as well as a security video from the restaurant. Panties, restaurant napkins, and duct tape that were found in defendant’s locked bedroom contained the victim’s DNA. A dildo, lubricant, duct tape packaging, a partial roll of duct tape, cable ties, a black ski mask, black weighted gloves, and a container of mace were also found in his bedroom. During an interview with police, defendant repeatedly said he did not know how most of those items got into his room. When told the victim’s car keys were found in his car, defendant had no explanation other than he had been set up. A forensic examination of defendant’s phone revealed that it had been used to access pornography scenes of vaginal penetration with fists and dildos on several days prior to the assault. After the assault, the assailant left the restaurant at approximately 8:00 a.m., and between 8:33 and 8:35 a.m., defendant’s phone accessed 40 images of vaginal and anal penetration of a woman by dildos or a penis. Defendant had told detectives he was sleeping during this time period. While during his interview with detectives defendant denied owning a ski mask and lubricant, he did admit owning weighted fingerless gloves and zip ties.
[3] In his statement at the sentencing hearing, defendant said, “I don’t wish this upon anybody. It’s terrible. You know, either side, to be forced to -- to have to be a victim of this or to be the person who did it, you know.”
[4] This aggregate term was calculated as follows: five consecutive 25 to life sentences for counts one through five, sexual penetration; plus a consecutive three year term for count six, dissuading a witness.
[5] Further undesignated rules are to the California Rules of Court.
[6] Under rule 4.408, which allows a trial court to consider any “criteria reasonably related to the decision being made,” lack of remorse can be used to aggravate a sentence unless the defendant has denied guilt and the evidence of guilt is conflicting. (People v. Weber (2013) 217 Cal.App.4th 1041, 1064, fn. 7.) The evidence of defendant’s guilt here is not conflicting. (See fn. 2, ante.)
[7] When imposing consecutive terms under section 667.6, subdivision (d), a trial court can avoid potential confusion and potentially limit issues on appeal by stating on the record whether consecutive terms would be imposed if it exercised its discretion under section 667.6, subdivision (c). (See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 458, p. 728.)
