P. v. Torres

Filed 9/28/07 P. v. Torres CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Jose Juan Bravo Torres was convicted on June 27, 2006, after a jury trial, of kidnapping to commit an act of forcible sexual penetration (Pen. Code,  209, subd. (b)(1), count one);^[1]kidnapping ( 207, subd. (a)(1), count two); an act of forcible sexual penetration ( 289, subd. (a)(1), count three); and commission of a lewd and lascivious act on a child 15 years old ( 288, subd. (c)(1), count four).^[2] On July 25, 2006, the trial court announced it was sentencing defendant to prison for a term of life (with a minimum of seven years) on count one, a sentence of eight years on count three, and an additional consecutive sentence of eight months on count four, for a total determinate sentence of eight years eight months to run consecutively to count one.^[3] The court stayed defendants sentence on count two pursuant to section 654, imposed a restitution fine, ordered defendant to register as a sex offender, and granted defendant applicable custody credits. The court further ordered the collection of blood, saliva, fingerprint, palmprint, and DNA samples.

On appeal, defendant contends and plaintiff concedes that the trial court should have dismissed his kidnapping conviction on count two. Defendant argues that count three must also be dismissed. Plaintiff replies instead that count three should be stayed pursuant to section 654. Defendant asserts, and plaintiff also concedes, that there was insufficient evidence to support his conviction in count four for commission of lewd and lascivious conduct. Defendant contends that the trial court violated his right to a jury trial in sentencing him to a consecutive term on counts one and three and to the upper term on count three.

FACTS

Jessica lives with her parents, suffers from Downs Syndrome, and is a special education student. On January 22, 2006, when Jessica was still 15 years old, she took an early morning walk to a nearby park.^[4]Jessica stated that the sun had not yet risen and it was dark. When Jessica arrived at the park, she saw defendant, who was her neighbor and is known as Preidas, at the park.^[5] Artificial lights in the park were on.

When she saw defendant, Jessica ran through the park. Defendant chased Jessica and, after catching up to her, he grabbed Jessicas shoulders and pulled her to the ground. After pulling down Jessicas pants and underwear, defendant inserted his finger into her privacy, Jessicas word for her vagina. Defendant put his hand on Jessicas face and tried to kiss her mouth. The two struggled on the ground. Jessica attempted to push defendant back. Defendant continued to forcibly penetrate Jessica until he fled, either when the sun rose or when a car with its lights on drove by. Jessica said defendant did not try to kiss her anywhere else, and he did not do anything else to any area.

Jessica started to cry, got up, fell once, and then went to her aunts home. Deputy Berna questioned Jessica at 7:30 that morning. Jessica was visibly upset. Her eyes were watery and her voice was shaking. Deputy Berna observed an abrasion on Jessicas chin. Jessica told Deputy Berna that her chin and shoulder hurt. A photograph depicting Jessicas injuries to her chin was admitted into evidence.

Deputy Berna went with Jessica to the park. Jessica, who was recalled as a witness, testified that she told Deputy Berna defendant first grabbed her in the open area of the park and then pulled her 15 feet away to the back of the park toward a fence and behind a tree. Jessica drew Xs on a photograph showing where defendant dragged her through the park. This photograph and another photograph were admitted into evidence showing the area where defendant initially attacked Jessica and showing disturbed grass, dirt, and leaves at the spot defendant dragged Jessica.

Patricia Driscoll, a registered nurse who works at Hanford Community Hospital Emergency Room, conducted a sexual assault examination of Jessica on January 22, 2006. Driscoll interviewed Jessica to get her account of what happened. Jessica has Downs Syndrome which makes her slow. Also, Jessicas mother needed an interpreter.

Driscoll observed multiple abrasions on Jessica as well as a lot of dirt and leaves on her clothing and body. Jessica was not able to tolerate the speculum used for a vaginal examination so Driscoll could only observe Jessicas vagina externally. Driscoll saw a tear at the posterior fourchette located at the base of the vagina. Jessica had lacerations and abrasions to her knees and scratches to her body. There were dirt and leaves around the pelvic area. The results of the examination were consistent with Jessicas account of the sexual assault.

Senior Deputy Sheriff Tom Wilcox conducted a tape-recorded interview of Jessica on January 22, 2006, about 11:00 a.m. During questioning, Jessica initially said her house was two seconds from the park, then said it was 30 seconds from the park. When asked if defendant moved her, Jessica said defendant had just grabbed her and pushed her to the ground. Jessica told Wilcox that defendant placed his finger into her vagina for one to two hours.

Count one

The parties agree that defendants conviction for simple kidnapping in count two must be dismissed because it is a lesser-included offense of kidnapping to commit sexual penetration. In a supplemental brief, defendant contends that his conviction for forcible sexual penetration as alleged in count three is also a lesser-included offense of aggravated kidnapping and count three also must be dismissed. Alternatively, defendant argues that count three must be stayed pursuant to section 654.

The attorney general replies that aggravated kidnapping does not require a completed act of sexual penetration, it only requires a kidnap with the intent to commit an act of sexual penetration. The attorney general argues that the elements of an aggravated kidnapping are not the same as an act of forcible sexual penetration, arguing instead that count one is part of an indivisible course of conduct violating more than one statute which requires a stay of sentence pursuant to section 654.

Count two

Multiple convictions may not be based on necessarily included offenses. (People v. Pearson (1986) 42 Cal.3d 351, 355 (Pearson).) Under section 954, a single course of conduct by a defendant can lead to convictions of any number of the offenses charged. When section 954 permits multiple convictions but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the conviction or convictions for which multiple punishment is prohibited. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya); Pearson, supra, 42 Cal.3d at p. 355.)

A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all of the elements of the lesser offense such that the greater offense cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).)

Kidnapping is a lesser offense of an aggravated kidnapping to commit sodomy or oral copulation. (People v. Jackson (1998) 66 Cal.App.4th 182, 189-190.) Kidnapping to commit sodomy or oral copulation is an act proscribed by the same statutory provision as kidnapping to commit an act of forcible sexual penetration.^[6] ( 209, subd. (b)(1).) To commit an aggravated kidnapping to accomplish forcible sexual penetration, the accused necessarily commits a kidnapping.^[7] Rather than staying defendants sentence on count two, the trial court should have dismissed it.

Count three

Defendant argues that, like simple kidnapping, forcible sexual penetration is a lesser-included offense of aggravated kidnapping to commit forcible sexual penetration. The attorney general contends that, under the elements test, the crime of forcible sexual penetration is not a lesser-included offense of aggravated kidnapping because aggravated kidnapping does not require a completed act of sexual penetration. Defendant concedes that commission of the aggravated kidnapping does not require completion of the intended act. Defendant points out that in dictum in People v. Ford (1966) 65 Cal.2d 41 (Ford)^[8]the California Supreme Court stated that in the case of an aggravated kidnapping involving a robbery, The offense of robbery, of course, is necessarily included within the offense of [kidnapping] for the purpose of robbery where the [kidnapper] achieves his purpose. (Id. at p. 49.)

Multiple convictions based on necessarily included offenses are prohibited.

The elements test is satisfied if the statutory elements of the greater offense include all the elements of the lesser offense so that the greater offense cannot be committed without committing the lesser offense. (Birks, supra, 19 Cal.4th at p. 117.) In making this determination, one analyzes the elements of the offenses, not the evidence regarding the commission of the offenses. (People v. Reed (2000) 78 Cal.App.4th 274, 281-282 (Reed); also see People v. Marshall (1957) 48 Cal.2d 394, 405.)

The statement in Ford that robbery is necessarily included within the offense of aggravated kidnapping for the purpose of robbery where the kidnapper achieves his purpose, did not analyze the issue within the accusatory pleading or the elements tests. Also, as defendant acknowledges, the language he quotes from the Ford case was dictum because in Ford the court was analyzing the factual scenario of an ongoing offense in which the defendant committed a robbery and later formed the intent to kidnap the victim in the context of whether section 654 applied. The defendant in Ford was not charged with aggravated kidnapping for the purpose of robbery and kidnapping, but with robbery and simple kidnapping. (Ford, supra, 65 Cal.2d at p. 49.)

It would appear to follow that, when the language in the accusatory pleading simply repeats the statutory description of the crime, the application of the accusatory pleading test and the elements test would provide the same result. Here, the amended information in count one alleges that defendant did unlawfully kidnap and carry away Jessica to commit the act of sexual penetration. The pleading does not allege that defendant completed the act of sexual penetration as part of count one.^[9] Consistent with the primary function of the accusatory pleading testto determine whether a defendant is entitled to instruction on a lesser uncharged offensewe consider only the pleading for the greater offense. (Montoya, supra, 33 Cal.4th at p. 1036.)

As noted above, under the elements test, one analyzes the elements of the offenses, not the evidence regarding the commission of the offenses. (Reed, supra, 78 Cal.App.4th at p. 282.) Kidnapping to accomplish an act of forcible sexual penetration is a kidnapping for the purpose of committing the second offense. Kidnapping to accomplish a forcible sexual penetration, however, does not require the completed sex offense. Section 209, subdivision (b)(1), states that the defendant who kidnaps the victim does it to commit the additional proscribed offense. It may be true that a completed sex offense does occur together with a kidnapping to perpetrate the sex offense, but it is not a legal necessity.^[10]( 209, subd. (b); People v. Wiley (1994) 25 Cal.App.4th 159, 161-163 (Wiley), applying doctrine to kidnapping to commit robbery.) We conclude that the offense of forcible sexual penetration is not a lesser-included offense of kidnapping to perpetrate a forcible sexual penetration.

As an alternative argument, defendant contends that counts one and three were perpetrated incident to a single criminal objective. The attorney general concedes this point. Section 654 permits punishment for only one of multiple offenses which are incident to a single objective as determined by the intent and objective of the actor. (People v. Beamon (1973) 8 Cal.3d 625, 636-637; Wiley, supra, 25 Cal.App.4th at p. 163.) The parties agree that defendants criminal objective in counts one and three was the same and that the trial court should have stayed his sentence on count three pursuant to section 654. We agree and will order defendants sentence on count three to be stayed.

SUFFICIENCY OF EVIDENCE OF COUNT FOUR

Defendant contends, and the attorney general concedes, that there was insufficient evidence on count four that defendant committed an act of lewd and lascivious conduct.

Count four of the amended information alleged that the lewd and lascivious act defendant performed on Jessica was touching her breasts.^[11] In its opening instructions to the jury, the trial court advised the jury of the allegations against defendant. The court specifically told the jury that defendant was charged in count four with lewd and lascivious conduct against Jessica for, touching of the breasts with the intent of arousing, appealing to [or] gratifying the lust, passions, and sexual desires of the defendant .

In her closing argument to the jury, the prosecutor referred to counts one and two as the kidnapping counts. The prosecutor identified the other allegations to the jury, referring to the count alleging sexual penetration and to the lewd acts, the touching of the breast. The verdict form on count four referred to the touching of the victims breast.

As the parties point out, however, there was no evidence adduced at trial that defendant touched Jessicas breast. Jessica testified that defendant sexually penetrated her and tried to kiss her mouth. The nurse, Patricia Driscoll, testified that Jessica had scratches on her body, abrasions on her knees, leaves and dirt around her pelvic area, and a tear at the posterior fourchette at the base of the vagina. This evidence corroborated Jessicas testimony as to the first three counts, but not count four. Neither law enforcement officer testified at trial that Jessica told them defendant touched her breast.^[12]

A scratch on Jessicas breast could have provided circumstantial evidence that defendant touched it, but the photograph depicting a scratch on Jessica, Exhibit 3, showed a scratch on Jessicas chin. Jessica testified that, after defendant attempted to kiss her on the mouth and sexually penetrated her, he did not kiss her anywhere else or do anything else to her.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidenceevidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)

The prosecution failed to present any evidence at trial to support its contention that defendant committed a lewd and lascivious act as alleged in count four by touching the victims breast. We will, therefore, reverse defendants conviction on count four.

RIGHT TO JURY TRIAL ON SENTENCING ISSUES

Defendant contends that his right to a jury trial on the trial courts imposition of a consecutive sentence on counts one and three and on the courts imposition of the upper term on count three is based on factors defendant argues should have been made by the jury rather than the trial court.^[13] Defendant argues that the trial court violated the holdings of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

Consecutive sentence

Defendant contends that imposition of a consecutive term on counts one and three violated his Sixth Amendment right to trial by jury as recognized in Cunningham. Recently, the California Supreme Court rejected the contention that there is a jury trial right when the trial court imposes a consecutive sentence. (People v. Black (2007) 41 Cal.4th 799, 820-823 (Black).)

Black found that Cunningham did not address whether the decision to run separate terms concurrently or consecutively must be made by the jury. Black found that section 669 does not implicate a defendants Sixth Amendment right to a jury trial and that section 669 does not create a presumption in favor of concurrent sentences that may be overcome only by factual findings. (Black, supra, 41 Cal.4th. at pp. 821-823.) Citing People v. Reeder (1984) 152 Cal.App.3d 900, 923, Black noted that the requirement in section 669 that concurrent sentences be imposed if the court does not specify how the terms must run merely provides for a default in the event the court fails to exercise its discretion. (Black, supra, 41 Cal.4th at p. 822.)

Black held that entrusting to the trial court the decision whether to impose concurrent or consecutive sentences is not precluded by Cunningham. Accordingly, defendants Sixth Amendment rights were not violated when the trial court imposed consecutive terms. We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

Upper term

Black held that a single aggravating factor was sufficient to impose the upper term on a defendants sentence. (Black, supra, 41 Cal.4th at pp. 813, 816.) Black found that a second aggravating circumstance, the defendants criminal history, made him eligible for the upper term sentence. (Id. at p. 818.)

Here, the court found multiple aggravating circumstances: defendants probation status when he committed the instant offenses; the callousness of the criminal act because the victim cried and asked defendant to stop; the victims Downs Syndrome; the victims particular vulnerability because of her age, her IQ, and the fact that she was taking an early morning walk; and defendants danger to society. The court found no mitigating factors.^[14]

Probation status when defendant committed the underlying offense and prior unsatisfactory performance on probation are so closely related to the underlying convictions that resulted in the probationary or parole term that they come within the prior-conviction exception.

The trial court relied on a recidivist factor to impose the aggravated term as permitted by Black and it found no mitigating circumstances. Accordingly, we reject defendants contention that the court committed error under Cunningham and Blakely even if the other factors the court used to impose the upper term on count three were improper. Any error in relying on other aggravating factors was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Sandoval (2007) 41 Cal.4th 825, 838-840, and Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546].)

DISPOSITION

Defendants conviction on count four is reversed. The case is remanded to the trial court to dismiss count two and to stay its sentence on count three. The trial court shall prepare an amended abstract of judgment reflecting these changes and transmit it to the proper authorities. In all other respects, the judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.

^[1]Unless otherwise indicated, all statutory references are to the Penal Code.

^[2]The trial court granted the Peoples motion at trial to dismiss count five, an allegation that defendant committed forcible oral copulation ( 288a, subd. (c)(2)).

^[3]Section 209, subdivision (b)(1), carries a punishment of life with the possibility of parole.

^[4]Jessica said the park was only 30 seconds away, but Kings County Sheriffs Deputy Chris Berna explained that the park was approximately 10 minutes from Jessicas apartment by foot.

^[5]Jessica identified defendant in court. Jessicas sister testified that defendant was a neighbor, that everyone knew him as Preidas, and that he was 39 or 40 years old. Defendants sister testified that she is 43 years old and defendant is three or four years younger.

^[6]Section 209, subdivision (b)(1), provides that [a]ny person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or sexual penetration in violation of Section 289, shall be punished by imprisonment in the state prison for life with possibility of parole.

The court instructed the jury concerning the elements of aggravated kidnapping with CALCRIM No. 1203 in pertinent part as follows:

The defendant is charged in Count 1 with kidnapping for the purpose of sexual penetration. [] []

1. The defendant intended to commit sexual penetration. And. [] 2. Acting with that intent, the defendant took, held, or detained another person by using force. [] 3. Using that force, the defendant moved the other person or made the other person move a substantial distance. [] 4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a sexual penetration. And. [] 5. The other person did not consent to the movement.

^[7]Section 207, subdivision (a), provides that [e]very person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

The trial court instructed the jury concerning the elements of kidnapping with CALCRIM No. 1215 in pertinent part as follows:

The defendant is charged in Count 2 with kidnapping. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant took, held, or detained another person by using force []. [] 2. Using that force, the defendant moved the other person or made the other person move a substantial distance. [] And. [] 3. The other person did not consent to the movement.

^[8]Ford was overruled on other grounds in People v. Satchell (1971) 6 Cal.3d 28, 35.

^[9]Unlike count one, count three of the amended information does allege that defendant committed the act of forcible sexual penetration.

Section 289, subdivision (a)(1), provides that [a]ny person who commits an act of sexual penetration when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment .

The trial court instructed the jury concerning the elements of forcible sexual penetration with CALCRIM No. 1112 in pertinent part as follows:

The defendant is charged in Count 3 with sexual penetration by force. []  []

1. The defendant committed an act of sexual penetration with another person. [] 2. The penetration was accomplished using a foreign object. [] 3. The other person did not consent to the act. And. [] 4. The defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to anyone.

^[10]In People v. Medina (2007) 41 Cal.4th 685 at pages 700-702, the California Supreme Court dealt with a defendant who committed the aggravated offense of attempted kidnapping during the commission of a carjacking pursuant to section 209.5 and who was also convicted of the lesser offenses of attempted simple kidnapping and attempted carjacking. The court found that the two lesser offenses shared the same elements as the greater offense and ordered the two lesser offenses stricken. Section 209.5, subdivision (a), states that anyone who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person shall be punished by imprisonment in the state prison for life with the possibility of parole. Section 209.5 proscribes a kidnapping that occurs during the commission of a carjacking.

The offense of carjacking must be happening in section 209.5, subdivision (a), whereas a violation of section 209, subdivision (b)(1), occurs when one kidnaps the victim to commit the target offense. We find Medina distinguishable from the instant action because the target offense need not be accomplished in section 209, subdivision (b)(1), whereas the offense of kidnapping in section 209.5 must occur during the actual commission of a carjacking.

^[11]The specific allegation that defendant touched Jessicas breasts was handwritten by interlineation into the amended information.

^[12]Deputy Berna did testify to this fact at the preliminary hearing. The jury did not hear this testimony.

^[13]Defendant also argues that the trial court violated his right to a jury trial in imposing a consecutive sentence on counts three and four. In light of our reversal of count four for insufficient evidence, defendant will not be serving a consecutive sentence on that count and we do not address it in our analysis.

^[14]The probation report noted that defendant had infractions in 2002 for speeding and for failing to maintain financial responsibility. He also had a speeding infraction in 2003. In 2004, defendant had misdemeanor convictions for driving under the influence, for which he was placed on probation, and hit and run. Defendant also had a financial responsibility infraction in 2004.