P. v. Jefferson

Filed 5/9/06 P. v. Jefferson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Khalmus Lamar Jefferson was charged as follows: count 1, false imprisonment by violence (Pen. Code, § 236)^[1]; count 2, assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)); count 3, making a criminal threat (§ 422); count 4, kidnapping to commit sodomy (§ 209, subd. (b)(1)); counts 5, 10, 11, 12 and 13, forcible oral copulation (§ 288a, subd. (c)(2)); counts 6 and 8, sexual penetration by a foreign object (§ 289, subd. (a)(1)); and counts 7 and 9, sodomy by use of force (§ 286, subd. (c)(2)). It was further alleged as to the oral copulation, sexual penetration and sodomy counts, that Jefferson kidnapped the victim within the meaning of the one strike law. (§ 667.61, subd. (a), (b) & (d).)

The jury found Jefferson guilty of all charges and found the one strike allegations to be true.

The trial court imposed a 25-year-to-life one strike term plus a consecutive 6-year middle term on count 5. As to counts 1 through 3, the court imposed concurrent two-year middle terms for each count. On count 4, the court imposed a life term stayed pursuant to section 654. As to counts 6 through 13, the court imposed a consecutive six-year middle term for each count. The court also imposed and stayed on counts 6 through 13, one strike terms of 25 years to life for each count. The total term was 25 years to life plus 54 years.

We strike the consecutive six-year term as to count 5. We also strike the 25-year-to-life terms that the trial court imposed and stayed for counts 6 through 13. The total term is 25 years to life, plus 48 years. In all other respects we affirm.

FACTS

Francisco C. worked as a day laborer in Los Angeles. On April 17, 2002, he waited for work on the corner of Pico and Broadway. That afternoon, Jefferson and Carlos Sequeira offered Francisco $35 to move some trash out of an apartment. Francisco agreed and the men drove him to an apartment building approximately 25 minutes away. At the building, Francisco met Gerardo Torres who said he was the building manager.

Francisco worked for two and a half hours removing trash and furniture from an apartment. After Francisco finished, he asked Torres to pay him. Torres told Francisco to follow him up the stairs. Francisco followed Torres into a room. Francisco asked to be paid, but Torres laughed. Jefferson entered the room. Francisco asked to leave without his pay.

Jefferson placed a spatula in Francisco's hand, pushed him to the floor, and told him to start removing the floor covering. Francisco was crying, but he did as he was told. Jefferson kicked Francisco in the stomach to make him stop crying. Torres put a gun to his head and told him to be quiet. Sequeira told him if he tried to escape, they would catch him and kill him.

At about midnight, Torres told Francisco he could stop work. Torres said that Jefferson would drive him home. Francisco got into the passenger seat of the car with Jefferson driving. When Francisco realized they were not heading toward his home, he started to cry.

Jefferson stopped in front of a house, grabbed Francisco by the shirt collar, and forced him inside. Jefferson pushed and pulled him through the house, hitting him as he tried to get away. Jefferson pushed Francisco into a room with a mattress and forcibly removed his clothes. Then Jefferson removed his own clothes.

Jefferson sucked Francisco's penis. Jefferson inserted his fingers into Francisco's rectum, removed them and reinserted them 10 to 15 times. He then inserted his penis into Francisco's rectum about 15 times. Jefferson removed his penis, turned Francisco over and sucked Francisco's penis. Jefferson again inserted his penis into Francisco's rectum about 15 times. Jefferson tried to insert his penis into Francisco's mouth, but he refused to open his mouth. Jefferson kissed Francisco's penis and other parts of his body the whole night. In the morning, Jefferson took Francisco into the shower, sucked on his penis and inserted his fingers into his rectum.

After they got dressed, Jefferson took Francisco to a Chinese restaurant. Francisco refused to leave the restaurant with Jefferson. Eventually, Jefferson gave up and left. Francisco went home to his father and told him what happened. They contacted the police.

A nurse specializing in sexual assault examinations examined Francisco. She testified Francisco had lacerations to his anus with bleeding and redness around the orifice. He also had injuries to his face, neck and arms.

DISCUSSION

I

Jefferson contends the trial court erred when it denied his motion to dismiss on the ground that the case had been previously dismissed twice.

The original felony complaint was filed on April 20, 2002. Francisco testified at a preliminary hearing held in July of that year. Jefferson was held to answer, and trial was set for November 12, 2002. On that date, the prosecutor moved for a continuance on the ground that Francisco could not be located. The trial court denied the motion and dismissed the case pursuant to section 1382.

The prosecutor refiled the case the same day, November 12, 2002. Detective Paul Lopez testified at the preliminary hearing pursuant to Proposition 115, and Jefferson was again held to answer. Trial was set for April 30, 2003.

On April 30, 2003, the prosecutor still had not located Francisco. Jefferson made a motion to prevent the prosecutor from using Francisco's testimony from the first preliminary hearing. Detective Lopez testified about his efforts to locate Francisco through December of 2002. Because, however, Lopez did not attempt to find Francisco after December of 2002, the trial court found the effort was insufficient, and ruled the preliminary hearing transcript could not be used. The prosecutor announced he was not ready to proceed, and the case was again dismissed.

The next day, the trial court granted the prosecutor's motion to refile the case pursuant to section 1387.1. The defense sought to dismiss the case pursuant to section 1387. The trial court held a hearing on the matter in August of 2004. By that time, Francisco had been located.

Francisco testified he and his father left the United States for Guatemala in the middle of August of 2002. He did not tell anyone that he was leaving. He left because he was traumatized about what had happened to him. He and his father returned to the United States in the middle of August 2003. Lopez contacted him about one month later.

Lopez testified about his efforts to locate Francisco. In November of 2002, Lopez learned Francisco could not be located for service of process. Former neighbors said they believed he had moved to Guatemala. Other people in the area said they thought they had seen him recently. Lopez unsuccessfully attempted to get Guatemalan officials to help locate Francisco. Lopez said he made periodic attempts to locate Francisco by visiting his last known address. During one of those visits in September of 2003, Francisco's father approached Lopez and told him he had returned.

The trial court found excusable neglect by both Francisco and law enforcement. The court denied Jefferson's motion to dismiss.

Section 1387 bars further prosecution of a felony that has been dismissed twice. Section 1387.1 provides an exception to the two-dismissal rule for violent felonies as defined in section 667.5. A third filing is permitted where the prosecution has not acted in bad faith, and where either of the two prior dismissals were due solely to excusable neglect. Unless inexcusable neglect is clear, the policy of trial on the merits prevails. (People v. Woods (1993) 12 Cal.App.4th 1139, 1149.)

Jefferson challenges the trial court's finding of excusable neglect. He does so by viewing the evidence in a light most favorable to himself. We, however, must view the evidence in a light most favorable to the judgment or order. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 148, p. 396.)

Here, there was evidence Francisco moved to Guatemala in August of 2002 without telling anyone, and returned in August of 2003. Shortly after he returned, Lopez found him. The trial court could reasonably conclude no amount of diligent searching would have produced Francisco for the first two trial dates.

Jefferson argues the prosecutor should have subpoenaed Francisco after he testified at the first preliminary hearing. But Francisco left the United States because he had been traumatized by his experience with Jefferson. There is no showing a subpoena would have prevented him from moving to Guatemala.

Jefferson argues the second dismissal was the result of the prosecutor intentionally filing the case knowing Francisco was in Guatemala, and not excusable neglect. It is true some people told Lopez they thought Francisco had left for Guatemala. But the prosecution was not required to take such statements at face value. It was not confirmed Francisco had been in Guatemala until after he returned in August of 2003. In any event, even if the second dismissal was not the result of excusable neglect, the prosecutor need only show that either of the prior two dismissals were solely the result of excusable neglect.

Jefferson points to the trial court's finding that the prosecution failed to exercise due diligence in locating Francisco after December of 2002. That finding does not apply to the first dismissal in November of 2002. In any event, at the time of the second dismissal it was not confirmed that Francisco had in fact moved to Guatemala. There is no reason why the trial court in ruling on a section 1387.1 motion cannot take into account facts not known at the time of the prior dismissals.

The trial court did not err in denying Jefferson's motion to dismiss all counts.

Jefferson next argues that section 1387.1 only applies to violent felonies as defined by section 667.5. Accordingly, he believes the nonviolent felonies alleged in counts 1, 2 and 3 should have been dismissed.

Jefferson relies on People v. Woods, supra, 12 Cal.App.4th at p. 1155. There the defendant was charged with two counts of murder. The complaint was dismissed the first time because the prosecution could not locate an essential witness. The complaint was dismissed a second time because of a clerical error in one of the counts. The defendant argued the count not affected by the error could not be refiled under section 1387.1. The court determined that "excusable neglect" under section 1387.1 must be considered separately as to each count. (Ibid.) The court reasoned: "Whether prosecution is barred under the two-dismissal rule of section 1387 has long been separately considered as to each count of an action. 'The section applies to bar the inclusion of counts of an information as well as to bar an entire information. . . .' [Citation.] The Legislature was presumptively aware of that judicial interpretation [citation] when, in 1987, it introduced the exception in section 1387.1. We thus may assume that the same construction was intended as to the exception, a conclusion consistent with the language of the section. It speaks twice of refiling 'charges.' [Citation.] We conclude that separate scrutiny of each twice dismissed count is required in deciding whether its third filing is justified by excusable neglect. [Citation.]" (Ibid.)

Woods was decided under somewhat different facts in that there both charges under consideration were violent felonies. Nevertheless, its reasoning is persuasive. Each charge must be considered separately for the purpose of determining whether section 1387.1 applies. Because counts 1, 2 and 3 do not qualify as violent felonies under section 1387.1, the two-dismissal rule of section 1387 applies. They should not have been refiled after two dismissals.

The Attorney General's reliance on Miller v. Superior Court (2002) 101 Cal.App.4th 728, is misplaced. There the court allowed the third filing of a complaint alleging violent, as well as nonviolent felonies pursuant to section 1387.1. But the court did not discuss the appropriateness of the filing as to the nonviolent felonies. A case is not authority for propositions not considered. (People v. Ceballos (1974) 12 Cal.3d 470, 481.)

The Attorney General points out that section 1387, subdivision (a), expressly provides a misdemeanor that is filed together with a felony is treated the same as the felony for the purposes of determining whether prosecution is barred. But the Attorney General points to no similar provision relating to nonviolent felonies in section 1387.1.

II

Jefferson contends one of the five counts of oral copulation is not supported by substantial evidence.

In reviewing the sufficiency of the evidence we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4h 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Johnson, supra, at p. 578.)

Here, in addition to the four counts Jefferson concedes are supported by substantial evidence, Francisco testified: "Well the whole night. He started to kiss again my penis and . . . all my body." That is sufficient to support the fifth count of oral copulation.

III

Jefferson contends the trial court had a sua sponte duty to give a unanimity instruction. (CALJIC No. 17.01.)

Two counts of forcible sodomy were based on Francisco's testimony that Jefferson inserted his penis into Francisco's rectum about 15 times, and that he later again inserted his penis into Francisco's rectum about 15 times. Two counts of sexual penetration by a foreign object were based on Francisco's testimony that Jefferson inserted his fingers into Francisco's rectum 10 to 15 times, and that he later inserted his fingers into Francisco's rectum while they were in the shower.

A unanimity instruction must be given where the evidence shows that more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) The unanimity instruction, however, is not required when the acts alleged are so closely connected as to form part of one transaction. (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) The continuous conduct rule applies where the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (Ibid.)

Jefferson argues the continuous course of conduct exception applies only where the defendant is charged with one offense and multiple events that could have constituted the offense have been proven. Here he points out there are two charges for each category of crime, and multiple acts for each category that could have constituted the offense.

But the existence of multiple charges and multiple acts does not require the unanimity instruction here. The point is that there is no rational basis for the jury to distinguish between the acts that occurred here. Thus there is no rational basis for a juror to believe that some acts occurred and that others did not. That the jury found Jefferson guilty as charged illustrates why no unanimity instruction was necessary. The jury simply believed Francisco's testimony in its entirety.

IV

Jefferson contends the prosecutor committed misconduct in argument to the jury.

Jefferson claims the prosecutor expressed a personal opinion of his belief in Jefferson's guilt when he argued: "These crimes are horrendous, and these crimes call for the most serious of charges. And that is why, as a prosecutor, I have charged the defendant with these charges, and for no other reason."

It would have been better and more professional for the prosecutor not to have expressed his reasons for charging the defendant. We agree with the People, however, that taken in context, the prosecutor is expressing his opinion that the evidence supports the serious offenses charged and not the lesser included offenses. Prosecution may not suggest she or he has personal information pertaining to defendant's guilt, but may offer opinion on the evidence. (People v. Frye (1988) 18 Cal.4th 894, 975-976.) Here the prosecutor's comment was an opinion on the evidence.

Jefferson also claims the prosecutor's argument appealed to the jury's passion and prejudice.

Shortly after the prosecutor began his argument, he told the jury:

"There's another thing I want to talk about, ladies and gentlemen, before I go into the facts of the case, and that is, for lack of a better word, being an immigrant is not an easy thing. No matter where you're from originally, no matter what your political affiliations may be and/or your opinions may be.

"It would happen to be that being an immigrant is not a particularly easy thing to do, particularly in Los Angeles. You may not know the language or customs or the laws, how to get around the city, or know about the city itself.

"Now, L.A. can be a dangerous place to a stranger. It can be a strange place.

"[Defense Counsel]: Objection, Your Honor. Appeals to passion.

"The Court: Sustained.

"[Prosecutor]: L.A. is a great place to live; but, unfortunately, L.A. is inhabited by people like the defendant and two men he dealt with back in April 2002, Mr. Torres and Mr. Sequeira. You would have to agree the defendant's acts against Francisco [C.], a young man of 18 years old, what has happened to him is an example of extreme cruelty. To terrorize a young man, to beat up a young man, to kick a young man, to violate his person is extreme cruelty.

"To be associated with people who would terrorize a young man and to threaten him and humiliate him, who would point a firearm at him is an example of extreme cruelty."

While discussing the sodomy charges, the prosecutor referred to evidence that a medical examination showed Francisco's rectum was torn and bloody. The prosecutor argued:

"All those things, ladies and gentlemen, are sodomy by force. When you put your penis into someone's rectum and you make it a bloody mess and you have someone's legs strapped over your shoulders and you're forcing your penis into them, when you turn them over, ladies and gentlemen, and inflict your penis into someone's rectum from behind, forcing your will upon them, that is sodomy by force, a despicable crime."

Finally, in response to Jefferson's argument that Francisco filed a $3.7 million law suit, the prosecutor argued:

"What's it worth to you, ladies and gentlemen, to be assaulted this way, the way Francisco described to you? To be threatened, to be beaten, to be humiliated, to have a gun pointed at you, to be sodomized, to have a crime of oral copulation committed against you, to have someone's finger going inside your anus? What's that worth to you up until today?"

Reference to Francisco's status as an immigrant is improper. At best, it is irrelevant. The remaining comments of the prosecutor are fair argument. (People v. Frye, supra, 18 Cal.4th at p. 978.)

But even if all of the cited portions of the prosecutor's comments are misconduct, reversal would not be justified. Francisco's testimony was credible and supported by the physical evidence. Jefferson essentially relied on the state of the evidence for his defense. Any statement the prosecutor may have made to arouse the passion of the jury, pales against the horrific nature of the evidence itself. The alleged misconduct was harmless by any standard.

It follows there is no merit to Jefferson's claim he was denied effective assistance of counsel when his counsel failed to object. Because the alleged misconduct was harmless, no prejudice arose from counsel's failure to object.

V

The Attorney General concedes the trial court erred in imposing the six-year middle term on count 5 as well as the one strike 25 years to life term.

The one strike provision of section 667.61 provides an alternative sentencing scheme. (See People v. Snow (2003) 105 Cal.App.4th 271, 283.) Thus, it was error to impose both the 25 years to life term and a consecutive 6-year term. The six-year term imposed on count 5 must be stricken. The one-strike 25 years to life sentence remains.

The Attorney General also concedes the trial court erred in imposing and staying the one strike 25-year-to-life terms on counts 6 through 13.

Section 667.61, subdivision (g), provides in part,: "The terms 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. . . ."

Under section 667.61, subdivision (g), a defendant may be given only 1 one strike life term per victim per occasion, no matter how many sex crimes the defendant committed against a single victim on a single occasion. (People v. Murphy (1998) 65 Cal.App.4th 35, 40.) After one offense is punished with a one strike life term, any remaining offenses, including violent sex offenses, are punished as they would be if there were no one strike law. (Id. at pp. 42-43.)

The Attorney General concedes the sex crimes committed here all occurred in sufficiently close temporal and spacial proximity as to have occurred on a single occasion. The one strike 25 years to life term was imposed on count 5. Thus the one strike 25 years to life sentences imposed and stayed on counts 6 through 13 must be stricken. The six-year consecutive terms imposed on counts 6 through 13 remain.

VI

Finally, Jefferson contends imposition of full consecutive sentences violated his federal constitutional rights under Blakely v. Washington (2004) 542 U. S. 296.

In People v. Black (2005) 35 Cal.4th 1238, 1261-1264, our Supreme Court held that Blakely does not apply to the trial court's decision to impose consecutive sentences.

The six-year term imposed on count 5 and the 25 year- to-life terms imposed and stayed on counts 6 through 13 are stricken. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Barbara R. Johnson, Judge

Superior Court County of Los Angeles

______________________________

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.