P. v. Garcia

Filed 8/20/07 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Jose Luis Garcia was convicted by jury of second degree robbery of Jun Wen (Pen. Code  211, count 10)^[1]and the following violent crimes committed upon H.S.: kidnapping to commit rape and robbery ( 209, subd. (b)(1), count 1), second degree robbery ( 211, count 2), carjacking ( 215, subd. (a), count 3), criminal threats ( 422, count 4), assault with intent to commit rape ( 220, count 5), forcible rape ( 261, subd. (a)(2), count 6), forcible oral copulation ( 288a, subd. (c)(2), count 7) and two counts of sexual penetration by foreign object ( 289, subd. (a)(1), counts 8 and 9). On counts 1 through 4, the jury found true allegations that appellant personally used scissors as a deadly weapon. ( 12022, subd. (b)(1).) On counts 6 through 9 (the sex offenses), the jury found true allegations that appellant personally used a deadly weapon ( 12022.3, subd. (a)) and that appellant committed the crimes under the aggravating circumstances of kidnapping H.S. ( 667.61, subd. (e)(1)), substantially increasing her risk of harm ( 667.61, subd. (d)(2)), and personally using a deadly weapon ( 667.61, subd. (e)(4)).

The trial court sentenced appellant to an indeterminate term of 50 years to life, plus eight years, and a determinate term of 35 years in state prison as follows: two identical consecutive full terms of 25 years to life for violation of sections 261, subdivision (a)(2) (count 6) and 289, subdivision (a)(1) (count 8) pursuant to section 667.61, subdivision (a), (d) and (e), plus four years each for personal use of a deadly weapon ( 12022.3); two identical consecutive full terms of six years for violation of sections 288a, subdivision (c)(2) (count 7) and 289, subdivision (a)(1) (count 9) pursuant to section 667.6, subdivision (c),^[2]plus four years each for use of a deadly weapon ( 12022.3); a five-year term for violation of section 215, subdivision (a) (count 3), plus one year for personal use of a deadly weapon ( 12022, subd. (b)(1)); a concurrent four-year term for violation of section 220 (count 5); and a consecutive one-year term for violation of section 211 (count 10). The court also imposed and stayed a sentence of life in prison, plus one year for violation of section 209, subdivision (b)(1) (count 1,  12022, subd. (b)(1), 654); a three-year term, plus one year for violation of section 211 (count 2,  12022, subd. (b)(1), 654); and a two-year term, plus one year for violation of section 422 (count 4,  12022, subd. (b)(1), 654).

FACTUAL and PROCEDURAL BACKGROUND

At about 6:40 p.m., on November 24, 2004, Jun Wen was walking to adult school, carrying her purse on her shoulder and a plastic bag in her hand. Appellant came from behind Wen on his bicycle, grabbing her purse and the bag (count 10). Wen testified: "All of a sudden I realized that my purse on--the purse that was on my shoulder was grabbed by somebody. [] And also the plastic bag was grabbed and taken away from me and thrown on the grass." The first time Wen realized something was happening was when she suddenly felt someone grabbing the purse and taking it.

Three days later, at about 9:30 p.m., H.S. was near her car at a market parking lot. Appellant rode up on his bicycle, hit H., and pushed her into the car onto her back across the front seats. Appellant threatened H., bit her lip, and committed sexual penetration upon her with his finger (count 8). Appellant then pushed H. into the passenger seat and drove the car to a residential neighborhood, where he committed further violent crimes upon her including rape (count 6), oral copulation by force (count 7) and sexual penetration by a foreign object (count 9). During these crimes, he held a pair of scissors to H.'s neck. When she resisted, he cut her neck. The drive between market and neighborhood took about five minutes.

DISCUSSION

The Evidence to Support Conviction of Robbery of Wen Was Sufficient

The conviction for second degree robbery of Jun Wen was supported by sufficient proof that the taking of her purse was "accomplished by means of force or fear." ( 211.) The "force" required for robbery must be "a quantum more than that which is needed merely to take the property from the person of the victim," but need not be directly applied to the person of the victim, and is not necessarily synonymous with a physical assault. (People v. Wright (1996) 52 Cal.App.4th 203, 210.) Force is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim. (Ibid.)

The force necessary to snatch a purse may be sufficient to sustain conviction of robbery. (People v. Lescallett (1981) 123 Cal.App.3d 487, overruled on other grounds in People v. Allison (1989) 48 Cal.3d 879, 895.) In Lescallett, the victim "saw someone, a fellow running towards me, and all of a sudden, [] felt a purse being snatched from [her] hand . . . . [She] just turned around quick, and [] saw this fellow running . . . . [She] was just walking . . . slowly and just holding it casual, this way [demonstrating], and all of a sudden, [she] felt it snatch." (Id. at p. 491.) When asked if she was afraid, she answered, "Yes, I was frightened." (Id. at p. 492.) This testimony was sufficient to support the robbery conviction because the jury could reasonably have concluded that the removal of the purse was accomplished by force or fear. (Ibid.) The court noted that "the issue whether sufficient force accompanied the snatching is best left to the jury which may ordinarily find the offense to be either a robbery, or grand theft from the person." (Id. at p. 491.)

Similarly, in People v. Roberts (1976) 57 Cal.App.3d 782, 785 (disapproved on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4), there was sufficient evidence of force to support a robbery conviction where the defendant grabbed the victim's "handbag[,] jerked it right down and snapped it off the handle," and the victim turned and caught a "fleeting glance" of the defendant. The victim in Roberts ran after the assailant, like the victim in our case.

Appellant argues that Lescallett and Roberts are inapposite because in Lescallett the victim testified that she was afraid and in Roberts the victim heard a shuffle of steps before the purse was snatched. The distinction is one without a difference. No fear or anticipation is required so long as the force is "actually sufficient to overcome the victim's resistance." (People v. Clayton (1928) 89 Cal.App. 405, 411.) Wen did not specifically testify that she was afraid or resisted, but a reasonable jury could have concluded that appellant used sufficient force to overcome Wen's resistance when he grabbed her purse from her shoulder.

Full Term Sentences for the Sex Crimes Charged in Counts 6 and 8 Were Proper Because the Crimes Were Not Committed on a Single Occasion

( 667.61, former subd. (g))

The trial court did not err when it sentenced appellant to two full term sentences of 25 years to life in state prison for the violations of sections 261, subdivision (a)(2) and 289, subdivision (a)(1) pursuant to section 667.61, subdivision (a). A mandatory indeterminate sentence of 25 years to life is required when a defendant is convicted of certain forcible sex offenses committed under specific aggravating circumstances. ( 667.61, subd. (a).) In our case, appellant committed the enumerated offenses that were charged in counts 6 and 8. The jury found that appellant committed both of these crimes under the aggravating circumstances that he personally kidnapped H.S. ( 667.61, subd. (e)(1)), that the movement substantially increased the risk of harm (id., subd. (d)(2)), and that he personally used a deadly weapon (id., subd. (e)(4)). Only one sentence may be imposed under section 667.61 for crimes committed on a "single occasion." ( 667.61, former subd. (g).) At the time appellant committed these crimes, section 667.61 provided that "the term specified . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." (Ibid.) However, the trial court found that appellant did not commit counts 6 and 8 on a single occasion because count 8 was committed at the market parking area, and count 6 was committed on a residential street after appellant drove the victim around for about five minutes. Substantial evidence supports that finding.

Multiple sex offenses occur on a "single occasion" within the meaning of section 667.61, former subdivision (g) "if they [are] committed in close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107.) A "single occasion" for purposes of section 667.61, former subdivision (g) is not the same as a "separate occasion[]" for purpose of section 667.6, subdivision (d). (Id. at pp. 105-107.) In other words, the court was not required to consider whether "the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior" or to disregard "the duration of time between crimes," as it would have to determine whether there were "separate occasions" under section 667.6. The court was required to determine, under section 667.61, whether the crimes were committed in close temporal and spatial proximity. (Jones, at pp. 106-107.) Here, count 8 was committed at the market and count 6 on the residential street.

In Jones, the defendant committed forcible rape, forcible sodomy, and forcible oral copulation with aggravating circumstances on a "single occasion." The crimes in that case were each committed in a car that was parked in a garage. The car did not move and all the sex crimes occurred within it over a period of about two hours. The defendant may have had an opportunity to reflect, but the fact that the crimes were in both close temporal and close spatial proximity rendered them a "single occasion" for purposes of section 667.61, former subdivision (g). (People v. Jones, supra, 25 Cal.4th 98.)

In our case, the trial court understood the difference between the former test for "single occasion" under section 667.61 and the test for "separate occasions" under section 667.6, and the court applied the correct test. Counts 6 and 8 were not "committed in close temporal and spatial proximity." (People v. Jones, supra, 25 Cal.4th 98, 107.) Appellant committed the forcible sexual penetration by a foreign object upon H.S. while her car was parked at the market. He then moved H. to a residential neighborhood, a five minute drive away, and raped her. Appellant was not punished pursuant to section 667.61 for the other sex crimes that accompanied the rape. We agree with the trial court that counts 6 and 8 "occurred on separate occasions and were separated in time and place . . . ."

The Trial Court Did Not Violate Appellant's Right to Jury Trial

When It Imposed Consecutive Sentences

Appellant contends that imposition of consecutive sentences for violation of sections 288a, subdivision (c)(2) (count 7) and 289, subdivision (a)(1) (count 9), based on facts that were not admitted or determined to be true by the jury, violated his federal constitutional rights to a jury trial and due process. (Blakely v. Washington(2004) 542 U.S. 296.)

The trial court imposed full consecutive mid-terms for counts 7 and 9. (Section 667.61 did not mandate full consecutive terms for counts 7 and 9 because they were committed on a single occasion, in the car after it was parked in the residential neighborhood.) The court had discretion to impose fully consecutive terms pursuant to section 667.6, subdivision (c), based on its finding that circumstances in aggravation outweighed those in mitigation because the crimes involved great violence and threat of great bodily harm, appellant demonstrated callousness, the victim was particularly vulnerable, and appellant engaged in violent conduct indicating a serious danger to society.

Appellant did not have a right to a jury trial on these facts, because their determination resulted only in imposition of the statutory maximum (midterm) on each of the crimes. A jury's verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. Imposition of consecutive terms does not implicate the defendant's right to a jury trial. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 D.A.R. 11041, 11050].)

Modification to Impose a Court Security Fee

As the parties agree, the trial court should have imposed a mandatory $200 court security fee pursuant to section 1465.8, subdivision (a)(1).

DISPOSITION

The judgment is modified to include a $200 court security fee pursuant to section 1465.8, subdivision (a)(1), and fully consecutive terms for counts 7 and 9, and is otherwise affirmed. The trial court shall forward an amended abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

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Lisa B. Lench, Judge

Superior Court County of Los Angeles

______________________________

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar, Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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

^[2]The court notes an error in the abstract of judgment, which does not reflect full consecutive terms for counts 7 and 9, and will direct the trial court to amend the abstract of judgment to reflect full consecutive terms.