Opinion
E064397
10-19-2017
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL KWAME AMANKRAH, Defendant and Appellant.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB047924) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Reversed in part, affirmed in part with directions. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
In 2007, defendant and appellant Samuel Kwame Amankrah was convicted by a jury of kidnapping to commit rape, kidnapping, forcible rape, and forcible oral copulation. Eighteen special allegations, dealing with the use of a deadly weapon and/or movement of the victim so as to increase the risk of harm, were found true. Defendant was sentenced to an aggregate prison term of 90 years to life. We affirmed the judgment in an unpublished opinion. (People v. Amankrah (Dec 10, 2009, E046952) [nonpub. opn.].)
In 2014, after we denied a motion by defendant to recall the remittitur, the California Supreme Court treated his petition for review as an original petition for writ of habeas corpus, and issued an order to show cause returnable to the San Bernardino Superior Court to address a sentencing issue. In 2015, the trial court resentenced defendant to an aggregate prison term of 98 years to life.
In this appeal, defendant asserts three claims of error. First, he contends that four sentencing enhancements for personally using a deadly weapon are unauthorized because they rest on an unintelligible verdict. Second, he argues that the nine-year determinate term imposed for a kidnapping enhancement should have been stayed. Third, he argues that the trial court erred by not giving a statement of reasons for its sentencing decisions.
We agree with defendant that the kidnapping enhancement should have been stayed. We affirm the judgment in all other respects.
I. FACTUAL BACKGROUND
The following factual summary is taken verbatim from our unpublished opinion in defendant's first appeal (case No. E046952):
"On January 21, 2005, Jane Doe, then 14 years old, was waiting at a bus stop on a busy street to go to school. Defendant approached Doe and asked her what time the bus would arrive. Doe said it would arrive in a few minutes. Defendant then grabbed her from behind, raised a knife to her throat, and told her to be quiet. He took her around the corner to his car, opened the car door, put the backseat down, and placed Doe in the trunk through the backseat. Doe testified that she did not hear the bus come by while she was in the trunk; earlier, she had told the police that she heard the bus come by. No one, including the bus driver, reported anything resembling an abduction on the busy, open street that morning.
"Defendant drove Doe to his house. After parking in his driveway, he took her into the house. He dropped his knife on the kitchen counter and led Doe to a bedroom. Defendant told her to be quiet, and stated that he would not hurt her. He told Doe to take her clothes off; she complied because she was scared. Defendant kissed Doe on her breasts and vaginal area, placing his tongue inside her vagina. Doe unsuccessfully attempted to pull his head up to stop him. Defendant then got on top of Doe and attempted to insert his penis into her vagina, which hurt, causing Doe to cry and say, 'Stop.' He ignored Doe's pleas and continued to try to penetrate Doe's vagina. Defendant stopped, took Doe to another room, and put Vaseline on his penis. He then took Doe back into the first room and attempted to penetrate her again, causing her to cry from the pain. Defendant continued 'for a long time' and then stopped. He retrieved a 'tub' of underwear, removed a pair, and told Doe to put the underwear on. Defendant then took photographs of her wearing the underwear.
"After being photographed, Doe began to put her clothes back on. While putting her shoes on, she noticed a cut on her hand. Blood from the cut dripped on her shoes and clothing. However, no blood was found in defendant's house or on his property. Because her shirt had blood on it, defendant put the shirt in the washing machine and gave Doe one of his shirts to wear. They then left the house. Defendant told her he was going to buy her a new shirt.
"Doe sat in the front passenger seat of defendant's car so she would remember where defendant lived. They drove to a Walmart, which was about five to ten minutes away. The two went into the store. Videotape footage showed that defendant kept his hand on Doe's shoulder. Doe picked out a shirt, which defendant purchased with his credit card. When he signed his name for the purchase, Doe noticed that he wrote the name 'Samuel.' While walking back to his car, she observed '4VVY' on the license plate of the car, and later told the police the number.
"Later, during an inspection of the trunk, a bloodstain was found on a pillow. There were other bloodstains found on the interior trunk seat support and on the rear deck support. Subsequent DNA analysis on the bloodstains matched Doe's DNA profile. The sexual assault examination showed that defendant's DNA was found on Doe's left breast. However, there was no male DNA found in the underwear sample. The physical examination showed 'very recent' bruising and tears to Doe's hymen consistent with blunt force penetration trauma. Also, in a photographic lineup, Doe identified defendant as the man who kidnapped and had sex with her.
"Defendant told law enforcement that Doe flagged him down; she told him that she was 18 years old and wanted to have sex. Defendant admitted that he tried to have sex with her, but stated that it never got further than rubbing his penis outside her vagina. He told law enforcement there was no penetration. He also stated that the reason Doe had a cut on her hand was from stripping a speaker wire with a knife at his house." (People v. Amankrah, supra, E046952.)
II. PROCEDURAL BACKGROUND
In 2007, a jury convicted defendant of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1); count 1), kidnapping (§ 207, subd. (a); count 2), forcible rape (§ 261, subd. (a)(2); counts 3-5), and forcible oral copulation (§ 288a, subd. (c)(2); count 6). The jury also found true allegations that, as to counts 1 and 2, he personally used a knife during the crimes (§ 12022, subd. (b)(1)). As to counts 3 through 6, the prosecution alleged, and the jury found true, that he personally used a knife to commit the crime (§ 12022.3, subd. (a)), and that he kidnapped the victim to commit the crimes (§ 667.8, subd. (a)). Also with respect to counts 3 through 6, the jury found true alleged one strike circumstances based on kidnapping and aggravated kidnapping (former § 667.61, subds. (a), (b), (d)(2), (e)(1) (Stats. 1998, ch. 936, § 9)), but found not true alleged one strike circumstances based on defendant's personal use of a deadly weapon (former § 667.61, subds. (b), (e)(4)).
Further undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to an aggregate prison sentence of 90 years to life, consisting of consecutive indeterminate terms of 25 years to life on counts 3, 5, and 6, plus 15 years to life on count 4.
On appeal of the 2007 judgment, defendant argued that the prosecutor committed error under Griffin v. California (1965) 380 U.S. 609, and that the trial court failed to instruct on the presumption of innocence and to define reasonable doubt at the end of trial. (People v. Amankrah, supra, E046952.) We affirmed the judgment.
In 2013, defendant filed a motion to recall the remittitur in this court, which we denied. Defendant filed a petition for review with the California Supreme Court. The Supreme Court ordered that the petition be refiled as an original petition for writ of habeas corpus, and issued an order to show cause, returnable to the San Bernardino Superior Court, "why petitioner's sentence is not unauthorized under former Penal Code section 667.61, subdivision (g), as it provided at the time of the offenses." Former section 667.61, subdivision (g) provided, in relevant part, that the term imposed under that section "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 . . . ."
In the San Bernardino Superior Court, the prosecution agreed that the trial court had erroneously sentenced defendant pursuant to the version of section 667.61 in effect at the time of sentencing, rather than the version in effect at the time the crimes were committed. As such, the sentence of 25 years to life on count 3 was proper, but the trial court should have imposed determinate sentences with respect to counts 4, 5, and 6. The trial court resentenced defendant to an aggregate prison term of 98 years to life as follows: an indeterminate term of 25 years to life on count 3; three consecutive eight-year terms (the upper term) on counts 4, 5, and 6; four consecutive 10-year terms (the upper term) for the section 12022.3, subdivision (a), enhancements of counts 3, 4, 5, and 6; and a consecutive nine-year term for the section 667.8, subdivision (a) enhancement of count 4.
III. DISCUSSION
A. The Jury's Verdicts on Certain Enhancements Were Inconsistent, But Not Unintelligible.
As noted, with respect to counts 3 through 6, the jury returned a verdict of true on the allegation—identified as the "First Allegation" for each of these counts in the jury's verdict forms—that defendant, in committing the offense, had "personally used a deadly weapon, to wit, Knife, within the meaning of Penal Code Section 12022.3(a)." Nevertheless, it found not true a one strike circumstance alleged pursuant to former section 667.61, subdivision (e)(4)—identified as the "Fifth Allegation" in the verdict forms—that "defendant personally used a dangerous or deadly weapon, to wit, a Knife, in the commission of the present offense." Defendant argues that these "contradictory" verdicts are unintelligible, and therefore void. We disagree.
Before addressing defendant's argument, we acknowledge the People's contention that he should be barred from making the argument because he failed to raise it in the trial court, or in his first appeal. However, even assuming the People are correct that the issue could be deemed forfeited, it is within our discretion to address the issue. (See People v. Rosas (2010) 191 Cal.App.4th 107, 115.) In the interest of judicial economy, we prefer to decide the matter on the merits, without discussing the parties' arguments regarding forfeiture.
It has long been the rule that "'any verdict of guilty which is sufficiently certain is a valid verdict even though the jury's action in returning it was, in a legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of a different offense.'" (People v. Lopez (1982) 131 Cal.App.3d 565, 570, quoting Witkin, Cal. Criminal Procedure, § 549, p. 560.) The same rule applies when it is an enhancement at issue, rather than a substantive offense. (People v. Avila (2006) 38 Cal.4th 491, 600 (Avila).) In contrast, where a jury returns a verdict that is not merely inconsistent, but "simply unintelligible," there is in effect "no recordable verdict." (People v. Brown (2016) 247 Cal.App.4th 211, 232-233 (Brown).)
Here, there is an obvious inconsistency in the jury's verdicts, but there is nothing unintelligible. The jury found the "First Allegation" with respect to each of counts 3 through 6 true; it found the "Fifth Allegation" with respect to those counts not true. The jury thereby decided the same legal issue—whether defendant personally used a knife while committing the offense, in violation of section 12022.3, subdivision (a)—differently on two different sets of enhancement allegations. But there is no difficulty in discerning what was decided. "Although '"error," in the sense that the jury has not followed the court's instructions, most certainly has occurred' . . . 'it is unclear whose ox has been gored.' [Citation.] It is possible that the jury arrived at an inconsistent conclusion through 'mistake, compromise, or lenity.'" (Avila, supra, 38 Cal.4th at p. 600, quoting United States v. Powell (1984) 469 U.S. 57, 65.) Regardless of the reason, such inconsistent, but nevertheless perfectly intelligible, verdicts "are allowed to stand." (Avila, supra, at p. 600; accord, People v. Carbajal (2013) 56 Cal.4th 521, 532 (Carbajal) ["Mere inconsistency does not provide a valid reason for courts to reject a jury verdict."].)
Defendant's arguments to the contrary notwithstanding, Brown does not require a different result, because it is distinguishable on its facts. The verdicts at issue in Brown truly were unintelligible: the jury signed and dated two verdict forms for the same count, one for guilty, and one for not guilty. (Brown, supra, 247 Cal.App.4th at p. 231.) Here, the jury returned only one verdict form for each of the enhancement allegations at issue. Although the results are inconsistent in a legal sense, there is no ambiguity as to what decisions the jury made. Similarly, People v. Sepulveda (1881) 59 Cal. 342, a case cited by defendant in his briefing on appeal, involved the joint trial of two co-defendants, but the jury's verdict, as it appeared in the transcript, indicated only that "defendant" was found guilty as charged. (Id. at p. 342.) On appeal to the Supreme Court, the verdict was found "void for uncertainty" because it did not specify which of the two defendants had been convicted, or that both of them had been convicted. (Ibid.) No similar ambiguity is at issue in the present case.
At oral argument, defendant's counsel argued that Carbajal, supra, 56 Cal.4th at p. 521 requires a different conclusion. We disagree. In that case, the Supreme Court commented that a jury's "finding of guilt and acquittal on the same count" is "unintelligible." (Id. at p. 532.) In this case, enhancements are at issue, rather than substantive counts, but the principle is the same; if the jury returned a verdict of true and not true on the same enhancement, the verdict would be unintelligible. But that is not what happened. We are not "unable to discern" what the jury's findings were. (Carbajal, supra, at p. 532.) As noted, the jury returned findings of true on one set of enhancement allegations (the "First Allegation" with respect to each of counts 3 through 6), and findings of not true on a second, separate set of enhancement allegations (the "Fifth Allegation" with respect to each of counts 3 through 6). These verdicts are legally inconsistent, as discussed above, but they are not unintelligible.
In short, defendant has demonstrated no defect in the jury's verdicts requiring reversal.
B. Punishment for the Section 667.8 Enhancement of Count 4 Should Have Been Stayed.
Defendant's sentence includes an indeterminate term of 25 years to life on count 3, pursuant to former section 667.61, based on the jury's true finding on the alleged one strike circumstance of aggravated kidnapping (former § 667.61, subds. (a), (d)(2)). It also includes a nine-year term for the enhancement of count 4 pursuant to section 667.8, subdivision (a), based on the jury's true finding that defendant kidnapped the victim to commit the substantive offense of forcible rape. Defendant contends that the trial court should have stayed any punishment on the section 667.8 enhancement, arguing in the alternative that either section 654 or former section 667.61 requires that result, because both punishments are based on a single act of kidnapping. We disagree with defendant's argument based on former section 667.61, but agree that the enhancement should have been stayed pursuant to section 654.
Under section 654, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654 protects against multiple punishment rather than multiple conviction. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) The purpose of the statute is to ensure a defendant's punishment is commensurate with his or her culpability. (People v. Norrell (1996) 13 Cal.4th 1, 6, superseded in part by statute on another ground as stated in People v. Kramer (2002) 29 Cal.4th 720, 722.)
The California Supreme Court has held section 654 bars multiple enhancements punishing the same aspect of a criminal act. (People v. Ahmed (2011) 53 Cal.4th 156, 163-164 (Ahmed).) With respect to enhancements going to the nature of the offense, i.e., conduct enhancements, resort to section 654 is necessary only when a specific sentencing statute does not provide an answer as to whether a crime may be punished under multiple provisions. (Ahmed, supra, at pp. 162-163.) "Although section 667.61 is an alternative sentencing scheme rather than an enhancement [citation], the aggravated kidnapping circumstance at issue here is functionally equivalent to a conduct enhancement because it focuses on the manner in which the underlying offense was committed, rather than on the status of the offender." (People v. Kelly (2016) 245 Cal.App.4th 1119, 1131 (Kelly).) We therefore first address defendant's argument that former section 667.61 provides an answer.
Pursuant to former section 667.61, where, as here, only the minimum number of circumstances required to trigger punishment under that section have been found true, "that circumstance . . . shall be used as the basis for imposing the term provided in subdivision (a) . . . rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty." (Former § 667.61, subd. (f).) Defendant reads this language to require that his act of kidnapping the victim, which underlies the jury's true finding on the alleged one strike circumstance for count 3, be punished only once, instead of being punished again as an enhancement to count 4.
We disagree. The language cited by defendant requires imposition of a sentence for count 3 based on former section 667.61, subdivision (a), rather than a lesser sentence under any other provision of law. Thus, even though the jury also found true a section 667.8 enhancement allegation with respect to count 3, the trial court properly imposed only the 25-year-to-life sentence provided by former section 667.61, subdivision (a), staying the enhancement. Former section 667.61 does not speak to whether or not the facts underlying the jury's finding on the one strike circumstance may serve the basis for enhancement of other counts. "The aggravated kidnapping circumstance pled and proven [with respect to count 3] was not punished under any other provision of the law, other than the One Strike Law," even if the act underlying the jury's true finding on that alleged circumstance also served as the factual basis for other offenses or enhancements. (Kelly, supra, 245 Cal.App.4th at p. 1135.)
In People v. Byrd (2011) 194 Cal.App.4th 88, our colleagues in District Four, Division One reached a different conclusion under similar circumstances, holding that section 667.61, subdivision (f) was controlling, and that one act of kidnapping could be punished both for kidnapping under section 207 and aggravated kidnapping under section 667.61, subdivision (a) and (d)(2). (Byrd, supra, at pp. 99-102.) Byrd is discussed at length in Kelly, supra, 245 Cal.App.4th at pp. 1131-1136. For the various reasons stated in Kelly, we agree that "the Byrd decision got it wrong," and decline to follow its reasoning. (Kelly, supra, at p. 1136.)
We turn, then, to the section 654 analysis. Although defendant was convicted of two kidnapping charges, counts 1 and 2, the People have not argued, either on appeal or during trial, that defendant's actions should be considered divisible into multiple acts of kidnapping. The same act of kidnapping therefore is the basis for punishment both with respect to the section 667.61 circumstance associated with count 3, and the section 667.8 enhancement of count 4. Defendant received two different punishments for this act: he received a sentence of 25 years to life pursuant to former section 667.61 for count 3, and he received a sentence of nine years on the section 667.8 enhancement of count 4. "Because the trial court did not stay defendant's sentence [on the section 667.8 enhancement], he was punished twice for the same act in contravention of section 654." (Kelly, supra, 245 Cal.App.4th at pp. 1131-1132.)
The People argue that "the entire point of section 667.8 is to avoid the sentencing limitations imposed by section 654," citing to People v. Jackson (1995) 32 Cal.App.4th 411, 414. This generalization, however, is too broad. As discussed in Jackson, section 667.8, subdivision (c)(3), provides that the enhancement is to be imposed "in addition to the punishment" for either (A) a kidnapping or aggravated kidnapping offense, or (B) one of the enumerated sexual offenses, but not both. (Jackson, supra, at p. 414.) Thus, even though section 654 "may prohibit punishment for both the kidnapping and the sex offense, it is proper to sentence the defendant for the sex crime and then impose the enhancement based on the kidnapping." (3 Witkin, Cal. Criminal Law (4th ed. 2012) Punishment, § 384(3).) It does not follow, however, that a single kidnapping may be punished under multiple provisions of law. Here, section 654 would not have barred imposition of the section 667.8 enhancement, even though the punishment on the kidnapping offenses charged as counts 1 and 2 had to be stayed, if the same kidnapping punished by the section 667.8 enhancement were not also punished under another provision of law. Since the same kidnapping was punished both as a section 667.8 enhancement of count 4, and what is effectively an enhancement of count 3 pursuant to former section 667.61, section 654 requires that the lesser punishment—the section 667.8 enhancement—be stayed.
C. Defendant Forfeited Any Claim That the Trial Court Failed to Articulate Its Reasons for Its Sentencing Decisions, and in Any Case Any Error Was Harmless.
Defendant argues that the trial court abused its discretion by imposing upper terms on some counts, and ordering that sentences be served consecutively, without giving a statement of reasons for its sentencing decisions. The People contend that defendant forfeited this argument by failing to object at the sentencing hearing, and that in any case any error was harmless. We find the People have the better side of this argument.
It is well established that "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) Defendant contends that he had no chance to object in the trial court. But the record does not support his contention. Prior to imposing sentence, the trial court heard oral argument from the parties, in addition to stating for the record that it had received and considered the parties' written submissions. After the trial court imposed sentence, it gave the parties a further opportunity to raise any issues. (See People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [court not required to issue tentative ruling to foreclose application of forfeiture rule where defense counsel had an opportunity to address the court regarding sentencing].) The prosecution did raise an issue, and the trial court changed one aspect of the previously announced sentence in response. The trial court then asked again if the parties had "[a]nything further" to raise. Defense counsel could have objected that the trial court had not adequately articulated the reasons for its sentencing decisions, but did not. Defendant's claim of error was therefore forfeited.
In any case, there is no reasonable probability that defendant was prejudiced by any error. The trial court explicitly stated on the record that it had considered the parties' written arguments, which include discussion of the circumstances of the offenses that defendant now contends he would have raised at the sentencing hearing, if he had the opportunity to do so. And defendant has—correctly—refrained from arguing that the record lacks an adequate basis to support the sentencing decisions that the trial court made. There is no reasonable probability that the court would impose a different sentence if we were to remand the matter for the court to make a statement on the record of its reasoning, so we will not do so. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889 [reviewing courts have "consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence"].)
IV. DISPOSITION
The judgment is reversed in part and affirmed in part. The judgment is modified pursuant to section 654 to stay the nine-year prison term for the section 667.8 enhancement of count 4. In all other respects the judgment is affirmed. The trial court is directed to amend the abstract of judgment and its minute order to reflect this modification, and to forward a certified copy of the new abstract of judgment to all appropriate agencies.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.