Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Roger A. Luebs, Judge.
O'ROURKE, J.
A jury convicted Jesus Campos of 12 counts of committing a forcible lewd act on a child under the age of 14 (counts 1 through 12; Pen. Code, § 288, subd. (b)(1)) and one count of false imprisonment by means of violence or fraud (count 13; §§ 236, 237, subd. (a)). The court sentenced him to a total prison term of 37 years and four months, consisting of consecutive low terms of three years each on counts 1 through 12, and a consecutive low term of one year and four months on count 13. Campos contends: (1) there is insufficient evidence to support his convictions of 12 counts of lewd touching; (2) he was denied a fair trial due to trial court bias; (3) the prosecutor committed prejudicial misconduct in her closing arguments; and (4) the court erred by imposing a consecutive sentence on the count 13 false imprisonment conviction. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In view of Campos's sufficiency of the evidence challenge to his section 288 convictions, we set out the facts regarding those counts in the light most favorable to the judgment. (See People v. Snow (2003) 30 Cal.4th 43, 66.) The parties refer to the victim of the sexual molestation as "Jane Doe." We shall do so as well, and will refer to her family members by their status.
In late 2006, Jane Doe, then age six, lived in a house in Moreno Valley with her mother, two brothers and her oldest brother's girlfriend, Vicky. Campos also lived with them and shared a room with Doe's mother. Doe had her own room. In the mornings, Doe's mother and her oldest brother would leave for work at about 6:00 a.m., and her other brother would leave about 45 minutes later for school. Doe, who was in second grade at the time, had to be at school by 8:00 or 8:30 in the morning and would get herself ready and watch television until about 7:45 a.m. In April 2007, about five or six months after they had moved into the Moreno Valley house, they moved into a different house in Perris.
On some mornings while she watched television, Campos grabbed Doe by the arm and pulled her into his room, closing the door. Doe told him to let go and tried to pull away to try to go back to her room, but he wouldn't let her. It would hurt when he pulled her. After he shut the door, he would pick her up and push her down onto the bed and try to remove her clothing or kiss her on her mouth. Campos used both hands to grab her when she tried to pull her arms away. Campos also touched her on the "upper" or outside part of her "privacy" with his hand, while he restrained her hands with his other hand. During this time, Doe tried to turn around to stop the touching and told Campos to stop. In response, Campos told her he would not stop, and threatened to have Doe's mother put in jail.
On February 22, 2008, Vicky, who by then had a one-year-old baby, left her room and heard Doe watching television in her mother's room. She called out for Doe, who did not answer. Vicky went to the door and screamed out for Doe to come out, and heard Campos pulling up his pants. Campos unlocked the door and let Vicky in. She saw he was not wearing a shirt and that Doe was in the bed underneath the covers without a shirt on. When Vicky pulled back the covers she saw that Doe, who looked scared, was completely unclothed. Vicky grabbed Doe, took her to her room, and locked the door. She called Doe's oldest brother and told him what happened, then began questioning Doe, who told her that Campos would touch on her, kiss her on her private areas, kiss her on the mouth and cheeks, whisper in her ear, and "feel on" her. Vicky called police, who arrived a few minutes later. When asked by a responding deputy sheriff, Campos denied ever touching Doe.
Doe was later interviewed by social worker Denise Rodriguez-Bowman. Doe told her that that morning, Campos pulled her out of her room, took her to his room and closed the door with a key, laid her down on the bed, and tried to kiss her on her mouth. She said he removed all of her clothes and underwear, removed all of his clothes, and tried to get her to touch his "private" with her hand but she pulled away. According to Doe, Campos touched the top of her "private part" with his hand and moved his hand, but did not touch any other part of her body. Doe, who was seven at the time, told Bowman she was six years old the first time it happened and the conduct occurred in both the Moreno Valley and Perris houses. Though Doe initially said Campos tried to touch her private and tried to make her touch him "just one time, " later in the interview she told Bowman that Campos pulled her into his room and touched her private part "lots, a lots of times." She told her he "always" took her clothes off.
At trial, Doe testified that on the day Vicky found her in Campos's room, Campos had tried but was unable to remove her clothing because she kicked him in the stomach and locked herself in her mother's closet. She also testified that Campos never removed her clothing, but then stated that he touched her under her pants in her "privacy" with his hands. She stated that the touchings happened more than once; specifically once a week, though Campos did not touch her private part every time. She testified Campos touched her private "about five times." Doe admitted that her memory of the events was better earlier when she had spoken with Bowman. On cross-examination, her testimony was that Campos did "these things" to her two to three times per week. A redacted version of Doe's forensic interview transcript was admitted into evidence.
A forensic examiner who had examined Doe testified that she found no physical signs of abuse on Doe. She explained that in sexual assault or abuse cases involving both children and adults, it was very common to have no such findings.
DISCUSSION
I. Sufficiency of the Evidence
Campos contends there is insufficient evidence to support his convictions on 12 discrete section 288, subdivision (b)(1) offenses. Pointing to Doe's testimony during her interview with Bowman and also at trial, he maintains the evidence demonstrates only an inconsistent, undifferentiated and indeterminate number of touchings. Campos argues the prosecutor urged the jury to speculate that Doe's vague and inconsistent testimony was an adequate substitute for proof beyond a reasonable doubt of 12 discrete touchings, the sort of compromise of the reasonable doubt standard warned against by Justice Mosk in his dissenting opinion in People v. Jones (1990) 51 Cal.3d 294 (Jones).
Our Supreme Court explained in Jones, supra, 51 Cal.3d 294 that a young sexual assault victim's failure to specify precise dates, times, places or circumstances did not render generic testimony insufficient, pointing out the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction. (Id. at p. 315.) It reasoned: "[E]ven generic testimony (e.g., an act of intercourse 'once a month for three years') outlines a series of specific, albeit undifferentiated, incidents each of which amounts to a separate offense, and each of which could support a separate criminal sanction." (Id. at p. 314.) Testimony will support a conviction for child sex offenses under section 288 where the victim describes (1) "the kind of act or acts committed with sufficient specificity... (e.g., lewd conduct, intercourse, oral copulation or sodomy)"; (2) "the number of acts committed with sufficient certainty to support each of the counts alleged in the information... (e.g., 'twice a month'...)"; and (3) "the general time period in which these acts occurred (e.g., 'the summer before my fourth grade'...)... Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Jones, at p. 316; see also People v. Matute (2002) 103 Cal.App.4th 1437, 1445-1446.)
In this case, the evidence - including both Doe's testimony and her interview with Bowman - met each of these requirements. Doe testified at trial that Campos touched her "once a week" starting when she was six years old and continuing until February 2007, when she was almost eight (Doe's birthday was in March). During her interview with Bowman, Doe described the forcible touchings as occurring "lots" of times. That there were inconsistencies in Doe's interview and trial testimony does not alter our conclusion, as it was the jury's province to weigh the entirety of the evidence from Doe for credibility. The evidence permitted it to reasonably conclude that Doe recalled the events better at the time of her interview with Bowman; that at trial, Doe did not wish to recall the details, but was able to testify to their frequency. We conclude Doe's testimony was more than sufficient to support the jury's verdicts in which they concluded beyond a reasonable doubt that Campos committed at least 12 lewd acts against her during the relevant time period.
II. Claims of Trial Court Bias
Campos contends the trial court engaged in "injudicious behavior" or a "pattern of caustic criticism" that biased the jury against the defense, demeaned the performance of defense counsel, or lowered the prosecution's burden of proof by distracting the jury. Campos maintains the court's comments - which he describes as "interrupting and berating" - were prejudicial because the evidence of his guilt was assertedly "almost nonexistent" and the comments had the effect of biasing the jury against the defense.
"A 'trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.' " (People v. Sturm (2006) 37 Cal.4th 1218, 1237-1238, 1240-1242; accord, People v. Fudge (1994) 7 Cal.4th 1075, 1107; People v. Sanders (1995) 11 Cal.4th 475, 531-532; People v. Perkins (2003) 109 Cal.App.4th 1562, 1567; People v. Fatone (1985) 165 Cal.App.3d 1164, 1174-1175; People v. Hefner (1981) 127 Cal.App.3d 88, 95-96.) Appellate courts "determine the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs." (People v. Cash (2002) 28 Cal.4th 703, 730.) "The role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.' " (People v. Harris (2005) 37 Cal.4th 310, 347, quoting People v. Snow, supra, 30 Cal.4th at p. 78.)
Preliminarily, we agree Campos forfeited any claim of judicial misconduct by failing to object and request an admonition, as an admonition could have cured any potential prejudice. (People v. Sturm (2006) 37 Cal.4th 1218, 1236; People v. Fudge, supra, 7 Cal.4th at p. 1108.) Assuming no forfeiture, our review of the merits would nevertheless compel us to conclude that for the most part, the trial court engaged in appropriate activity and as to its questionable comments, there was no prejudice.
We have reviewed the portions of the record identified in Campos's brief and read each of the alleged instances of misconduct in context. We do not attribute misconduct to the court's comment made when it declined to give a requested defense instruction outside the presence of the jury, in which it remarked that the People "like clarification, and the defense generally likes any confusion or uncertainty to remain." The remark does not comment on defense counsel in particular, and it would have no impact on the jury, who did not hear it. On four occasions, once during Doe's testimony, once during Vicky's testimony, and twice during Bowman's testimony, the trial court told counsel not to interrupt the court or the witness. During Bowman's testimony, in response to an apparently lengthy pause while defense counsel was preparing to ask a question, the court said, "I think we have been on the record about four minutes, and we have yet to have a meaningful question. So let's get to that." At times, the court directed defense counsel to ask Bowman questions rather than testify or indicate counsel's personal understanding. During one of Doe's brother's testimony, the court corrected counsel's reference to where Campos was sitting in reference to the witness, telling counsel, "He [Campos] is over actually on our left." These types of comments and suggestions represented appropriate attempts to control the proceedings during trial and the mode of questioning witnesses. (§ 1044 ["It shall be the duty of the judge to control all proceedings during the trial... with a view to the expeditious and effective ascertainment of the truth regarding the matters involved"]; People v. Sturm, supra, 37 Cal.4th at p. 1237.) In our view, they fall short of implying unethical or underhanded behavior (Sturm, 37 Cal.4th at p. 1241), or "betray[ing] a bias against defense counsel." (People v. Wright (1990) 52 Cal.3d 367, 411, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459; contra People v. Black (1957) 150 Cal.App.2d 494, 497-498 [judge expressed disapproval and essentially accused counsel of unfairness when it accused him of beating a witness down, told him to watch his language, repeatedly questioned his ability to ask a proper question, raised on its own the subject of judicial misconduct and remarked "this is the last time I am going to admonish you on this subject.... You will do better than you have been doing, I assure you, or there will be trouble"].)
The following exchange occurred during Doe's testimony: "[Defense counsel]: Two years ago. Okay. You started out by telling us how in the old house - I'm sorry - well, first, you started telling us about the new house; do you remember? [¶] The court: Let's not ask her to remember her testimony. [¶] [Defense counsel]: Well, let's - [¶] The court: When I'm talking, you don't talk, Ms. Galante. [¶] [Defense counsel]: I'm sorry. [¶] The court: You're still doing it. As soon as I say something, you stop when I'm done. Try that. Ask another question, please." Shortly thereafter, the court again admonished counsel: "Now, you're interrupting the witness when she is trying to answer your question, and we're getting a bunch of nonsense as far as the record goes. Please - [¶] [Defense counsel]: Let me narrow it down. [¶] The court: Now, you're interrupting me. We pretty much established you're interrupting. Would you just please be patient. Just ask her a question and let her answer." During Vicky's testimony, the court again admonished defense counsel: "Would you let her finish her answer instead of saying sure, sure, and interrupting her?"
During Bowman's testimony, defense counsel began a lengthy question about Doe's interview: "So she told you multiple stories, and that was something that you basically started talking about eyeballs [sic] about. And then on page 25, excuse me, on page 25, excuse me. I take that back. On page 26 she started talking about many times; correct? Actually strike that." The court then stated, "Let's strike all that kind of your own testimony, and just have you ask a question. Okay?" At another point, counsel began her recross examination by saying, "I don't get it. I don't understand -" The court interjected, "We don't care what you understand. Just ask a question."
On other occasions, the court commented to defense counsel that she was "beating a dead horse, " or "belaboring... silly little semantical things." During defense counsel's questioning of a detective about whether the crime scene was secured, the court sustained numerous relevance objections to counsel's questions about the importance of not allowing anyone to sit on the bed, making sure things were not disturbed, and yellow tape. In response to defense counsel's remark that she would "go on briefly" with the questions, the court interjected, "You are really belaboring this. I see no relevance to what we're talking about in this case. Move on" and, "Move on to something that gives me a hint[] that it might be relevant." During Bowman's questioning, the court advised Bowman to wait to answer until there was another question and that all she needed to do was listen and just answer the question once, but when Bowman thanked the court, it remarked: "You're interrupting me too. Both of you get into this conversational mode like this is some kind of dinner party. It is questions, answers, questions, answers. Okay." During redirect examination of defense witness Jeanne Ly, an instructional aide at Doe's school, the following colloquy occurred: "[Defense counsel]: Can I ask one other thing? [¶] The court: Probably not. Is it really within the scope? [¶] [Defense counsel]: I think so. [¶] The court: It is not repeating all the stuff you rehashed before? [¶] [Defense counsel]: Not for me. [¶] The court: We'll find out. Ask your one question."
These remarks of the trial court come closer to the type of negative view of defense counsel discussed in People v. Sturm, supra, 37 Cal.4th 1218: " 'It is completely improper for a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial.... When the court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client.' " [Citation.] This principle holds true in instances involving a trial judge's negative reaction to a particular question asked by defense counsel, regardless of whether the judge's ruling on the prosecutor's objection was correct; even if an evidentiary ruling is correct, 'that would not justify reprimanding defense counsel before the jury.' " (Id. at p. 1240.) However, they do not approach the sort of disparaging remarks as occurred in Sturm, in which the trial court "repeatedly" disparaged defense counsel and implied he was deliberately asking improper questions in front of the jury by accusing counsel of "purposely trying to 'sneak' in improper evidence by rephrasing his questions, and by admonishing the jury that defense counsel's questions were not evidence 'as much as he would like them to be evidence....' " (Ibid.) The court's conduct in Sturm was accompanied by other remarks creating the impression that the judge was allied with the prosecution. (Id. at pp. 1241-1242.) Nor is this case like People v. Hefner, supra, 127 Cal.App.3d 88, relied upon by Campos, where the trial court, among other things, accused defense counsel of misstating evidence in order to circumvent an earlier evidentiary ruling, and made comments before the jury reflecting on the credibility of the complaining witnesses. (Id. at pp. 93-94.) Such behavior did not occur here.
We further reject Campos's characterization of the evidence of his guilt as "almost nonexistent." To the contrary, in view of the testimony of Doe, Vicky and Bowman, we conclude the evidence of his guilt to be quite strong. Accordingly, unlike People v. Hefner, supra, 127 Cal.App.3d 88, where the evidence of the defendant's guilt was sufficient but not overwhelming, we perceive no prejudice on this record.
III. Claim of Prosecutorial Misconduct During Closing Argument
Campos contends the prosecutor committed misconduct by inviting jurors to put themselves in Doe's place, urging it to consider Doe's suffering, arguing facts not in evidence, and drawing the jury's attention to emotional and inappropriate factors. He maintains the misconduct violated his Sixth Amendment right of confrontation and his Fifth Amendment due process rights, and was prejudicial individually and cumulatively due to the absence of proof of his guilt and the "lack of fairness of the trial" as reflected in his contentions as to the sufficiency of the evidence and trial court bias.
The applicable principles are well established: " ' " ' "A prosecutor's... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " ' " (People v. Stanley (2006) 39 Cal.4th 913, 951.) Yet, " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets...." ' " ' " (Id.at pp. 951-952.)
A. Claimed Appeals to Jurors' Passion or Sympathy
Campos points to some of the prosecutor's initial remarks about Doe: "[Doe] has experienced things that a lot of other children never have to experience. Things that were taken from her. She is never going to get to experience that first kiss. She is never going to get to experience the first time with a boyfriend where she is naked with a grown man. [¶] Never going to get to experience the first time a grown man touched her private. It is not going to be a loved one, boyfriend, fiancée, husband. It is going to be this man right here, Jesus [Campos]. He was the first man to ever do these things to her, touch her in this way. And by doing that not only broke her trust, but he took her innocence."
Campos also refers to the prosecutor's comments about Doe's interview with Bowman: "Again, [Doe] is visualizing this in her head. And she corrects [Bowman] when something is wrong. Her corrections it shows she is not is [sic] vindictive or embellishing to get the defendant in trouble. A couple of examples she says several times, no, when she is asked whether or not the defendant touched her breasts, kissed her private parts, made him kiss his private part. She said no several times. If she is was [sic] really trying to get this man in trouble or being brainwashed, don't you think she would give a more detailed account of how he tried to put his fingers inside of her. Something like that."
Campos further refers to the prosecutor's arguments concerning any anticipated defense assertion that Doe and her family were trying to frame or set up Campos. Pointing out Campos was the bread winner and supporting them, he asked the jury why the family would "team up against [him]...." He argued: "You think about a family's love in general for this little seven-year[-]old girl. Do they really want to put her through this. Does a little seven-year[-]old girl want to put herself through what she went through in the SART exam. Think about that seven-year[-]old girl having to go through that, put her feet in those stirrups have her vagina exposed. Have swabs taken from her valvar [sic] area. I can't even pronounce the words. Now all the things she had to go through, she could have stopped at any point, but she didn't because what happened is the truth."
The foregoing remarks were not followed by any objection on grounds of misconduct or request for a curative admonition. As to these comments, Campos has forfeited any misconduct claim on appeal. (People v. Parson (2008) 44 Cal.4th 332, 359; People v. Alfaro (2007) 41 Cal.4th 1277, 1328; People v. Gray (2005) 37 Cal.4th 168, 215.) " '[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (People v. Stanley, supra, 39 Cal.4th at p. 952.) Relying on People v. Prince (2007) 40 Cal.4th 1179, 1294 and People v. Maury (2003) 30 Cal.4th 342, the People maintain Campos has forfeited all of his misconduct challenges because while his counsel at times interposed objections, at no time did she request an admonition. But Maury held the defendant forfeited his misconduct claim by failing to object, suggesting only an objection is required. (Maury, 30 Cal.4th at p. 418.) We need not reconcile that point further, because as to those instances where his counsel objected, we elect to consider the merits of Campos's remaining assignments of misconduct.
Campos assigns misconduct to the prosecutor's request that the jurors think about the first and last times they had sex and the details, to which defense counsel unsuccessfully objected on grounds the argument appealed to "sentiment, emotion." After the defense objection was overruled, the prosecutor continued to ask the jurors to recall "all the times in between...." The prosecutor stated that the jurors might not remember the details; that they started to blur together even though they were things the jurors enjoyed and wanted to remember. The prosecutor asked the jury to keep those things in mind and to think of Doe, who he argued should not be expected to recall the details of all of the times Campos touched her, though she remembered details of the first and last time. The prosecutor then referred to Doe's interview testimony: "So I just want you to keep that in mind that for those four pages she said those were the only two incidents that happened. But in the beginning and in the end she does say it happened lots and lots of times. [¶] So that is the RCAT interview we were talking about. I said that was one of the first and best pieces of evidence you're going to have in this case. The second was [Doe's] testimony."
The prosecutor stated: "I want everyone to indulge me here for a second. I'm a virgin, so this might not work well for me. But I want everyone to take a second though seriously. [¶] And if you want to close your eyes, but I want you guys to think real quick. Let's think about the first time you ever had sex. It was something that you wanted, that you enjoyed. Think about where it was at. Think about what you were wearing. What the other person was wearing. Maybe there was music on. Maybe there was smell or something in the room, candles. Think about even the position you were in. I want you to think of the last time you had sex."
"[O]rdinarily, 'a prosecutor may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim.' " (People v. Lopez (2008) 42 Cal.4th 960, 969-970.) Such argument improperly invites jurors to exercise "subjective judgment rather than an impartial judgment predicated on the evidence" and "it in effect asks each juror to become a personal partisan advocate... rather than an unbiased and unprejudiced weigher of the evidence." (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485; see People v. Vance (2010) 188 Cal.App.4th 1182, 1193-1195 & fn. 8 [prosecutor repeatedly argued over objections that the jury had to walk in a murder victim's shoes and "literally relive in your mind's eye and in your feelings" what the victim experienced].)
Here, the prosecutor did not ask the jury to feel sympathy for Doe, or view the crimes through her eyes. Rather, the prosecutor here argued that, in evaluating Doe's testimony, the jury should consider their own ability to recall their own experiences to explain the reason for her generic testimony. By inviting the jurors to consider how difficult it would be for them, as adults, to recall positive sexual experiences, the prosecutor was arguing it would be just as hard, or harder, for Doe to recall the details of her negative sexual experiences with Campos. This argument did not appeal to the jurors' sympathy, was tethered to the evidence, and was a permissible argument regarding credibility, akin to the challenged argument in People v. Lopez, supra, 42 Cal.4th 960, in which the prosecutor asked jurors to hypothetically place themselves in places and experience events that they would be forced to recall years later. (Id. at pp. 968-969.) Like the court in Lopez (42 Cal.4th at p. 970), we perceive no impropriety in the argument.
B. Claim of Misstated Testimony or Reference to Facts Not in Evidence
Campos contends the prosecutor misstated testimony when he argued: "You're not going to find any physical findings when someone is just touching the top part of their private area, and not even putting their fingers inside." In this argument, the prosecutor referred specifically to the testimony of Doe, who testified Campos only touched the upper or outside part of her private part, and the forensic examiner, who testified it was not unusual to have no physical findings of abuse, and his argument was consistent with the testimony of both witnesses. We cannot say the challenged remark exceeded the bounds of proper argument.
Finally, Campos asserts the prosecutor referred to facts not in evidence when he told the jury in his rebuttal closing that they did not hear from an investigator who he explained was on military leave, and commented on the collection of evidence at the scene, and what it would or would not prove. The record shows the prosecutor's comments responded to defense arguments that the investigation and search of the physical evidence conducted by police was "especially poor" and should have included DNA tests on various items, including a hamburger, found in Campos's bedroom. Defense counsel, referring to the forensic examiner's testimony that she took two swabs from Doe argued: "You know, they probably have that DNA sitting over there in Perris right now with the DOJ lab. It is probably still sitting there. It wasn't tested. It wasn't tested.... [¶] And, again, if they had bothered, you know, we wouldn't have been here."
The prosecutor argued: "Let's talk about evidence collected. All this DNA sitting in the lab in Perris purportedly. Let's talk about DNA for a second, and let's talk about hair fibers. A lot of this evidence was pulled out of the bedroom of [Doe's mother] and Jesus [Campos]. Of course there is going to be hair fibers of... [Doe], because she use [sic] to sit in that bed and watch movies with her mother. [¶]... [¶]... So what really are those hair fibers going to prove, that [Doe] has been in that bedroom, that Jesus [Campos] has been in the bedroom. We know that about that case, ladies and gentlemen. Let's talk about DNA, the fact there could be DNA pulled of this hamburger, the fact there could have been DNA taken off of [Doe's] mons and that whole area, her female area. Is there any testimony whatsoever that his saliva got onto that area? Was there any testimony whatsoever that his semen was in that area? [¶] Really. What good would DNA tests have done even if saliva and semen were in that area? She went to the bathroom. She wiped with toilet paper that area. DNA evidence, really, is that what they're saying reasonable doubt is. Just because you might think there was a sloppy investigation, by no means was there. But just because you think there might be, does that all of a sudden mean that [Doe] wasn't molested in that room on that day? [¶] Does that mean that this whole thing never happened, because maybe the police dropped the ball and didn't do their job, which, again, they didn't because there was no evidence to be had. What was DNA evidence going to prove? The only touching that occurred in that bedroom on that day only touching - I'm minimizing it right here, but by no means do I mean to do that is that he touched that area, the upper portion of her vagina area [sic] with his hand. [¶] This is not CSI. Like we talked about there is not going to be DNA evidence in cases like this."
Counsel did not timely object to the prosecutor's comment concerning the detective on military leave, which was not misconduct in any event. The prosecutor never referred to any purported testimony from that detective and the fact he was on military leave was testified to by prosecution witness Detective Lawrence Nering. Further, the reference was fleeting, eliminating any possible prejudice. As for the DNA statements, the prosecutor's comments were based on the fact there was no evidence or testimony that defendant's fluids came in contact with Doe's vaginal area and that there would be no DNA evidence in that event, and he questioned whether such evidence would do any good after Doe urinated and wiped her area with toilet paper. The challenged remarks were well within the bounds of reasonable argument in response to the defense challenges to the police investigation, they were grounded in the trial testimony of the forensic examiner, and they did not argue facts not in evidence. They do not rise to the level of misconduct.
IV. Imposition of Consecutive Full Term Sentence on Count 13 Forcible False Imprisonment Conviction
Campos contends the trial court erred by imposing a full consecutive sentence on his count 13 conviction for forcible false imprisonment, because that count and count 12, which both were alleged to have occurred on February 22, 2008, were part of a single indivisible transaction. He argues he should have been sentenced under section 667.6, subdivision (c), under which the court had discretion to run the term on count 13 concurrently to count 12. Campos maintains the court erroneously believed it lacked discretion under section 667.6, subdivision (d) to impose any other sentence. The People respond that the court correctly exercised its discretion, which was to sentence Campos on count 13 under section 1170.1 as the principal term requiring a full sentence, and then independently sentence him on the forcible lewd conduct convictions of counts 1 through 12 under section 667.6, subdivision (d), requiring full consecutive terms.
A. Sentencing Laws
Section 667.6 provides a "separate and alternative, " harsher sentencing scheme for specified violent sex offenses than the generally applicable sentencing provisions of section 1170.1. (See People v. Belmontes (1983) 34 Cal.3d 335, 343-344, 346.) Under section 1170.1, the court imposes an aggregate sentence composed of a principal term, the greatest term of imprisonment imposed for any of the convictions, and subordinate terms for additional felony offenses consisting of one-third of the middle term for each. (§ 1170.1, subd. (a) ; People v. Pelayo (1999) 69 Cal.App.4th 115, 123 (Pelayo).) Under section 667.6, subdivision (c), "[i]n 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." Subdivision (e) of section 667.6 lists a number of offenses "commonly referred to as 'violent sex crimes.' " (Pelayo, at p. 123.) Subdivision (d) of section 667.6 makes imposition of full, separate and consecutive terms for the enumerated offenses mandatory when, as here, the crimes involve the same victim on separate occasions.
Section 1170.1, subdivision (a) provides: "Except as otherwise provided by law, ... when any person is convicted of two or more felonies... and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
Section 667.6, subdivision (c) provides in 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. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e).... The term shall not be included in any determination pursuant to Section 1170.1."
Section 667.6, subdivision (d) provides: "A full, separate, and consecutive term shall be served for each violation of an offense specified in subdivision (e) if the crimes involve... the same victim on separate occasions. [¶]... [¶] The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Italics added.)
In Pelayo, supra, 69 Cal.App.4th 115, the court stated: "Violent sex crimes are treated differently [from crimes that are subject to section 1170.1, subdivision (a)]. The Legislature enacted section 667.6 in 1979 to significantly increase prison terms for persons convicted of certain violent sex offenses." Pelayo held the trial court in that case erred "by treating both of the nonviolent sex offenses as subordinate counts under the one-third the middle term rule of section 1170.1, ... effectively [making] one of the violent sex offenses a principal term under section 1170.1. This is not authorized by section 667.6, subdivision (d)." (Id. at p. 123.) Pelayo described the operation of the statutes: "Subdivision (d) [of section 667.6] removes the trial court's discretion [that otherwise might apply under section 667.6, subdivision (c)] to impose a more lenient sentence under section 1170.1 where two or more violent sex crimes are committed against more than one victim or where they are committed against the same victim on more than one occasion. In such instance, the defendant must serve a full, separate and consecutive sentence for each conviction of an enumerated violent sex offense. [Citations.] Further, the term imposed under section 667.6, subdivision (d) 'shall not be included in any determination pursuant to Section 1170.1.' Thus, when a defendant is convicted of both violent sex offenses and crimes to which section 1170.1 applies, the sentences for the violent sex offenses must be calculated separately and then added to the terms for the other offenses as calculated under section 1170.1 ." (Pelayo, at p. 124, italics added.) The Pelayo court further explained: "[A] person subject to section 667.6, subdivision (d) must be sentenced in a manner that does not dilute the impact of full, consecutive terms of imprisonment. The statute requires that the prison term imposed 'shall not be included in any determination pursuant to Section 1170.1.' Thus, it may not be used to reduce the term of any other conviction. The computations under sections 1170.1 and 667.6, subdivision (d) must always be done separately and the total of the section 667.6, subdivision (d) sentences added to any sentence computed independently under section 1170.1 ." (Pelayo, at pp. 124-125, italics added.)
C. Analysis
The court explained at length its reasoning for imposing consecutive terms on counts 1 through 13 on the record. It eventually summarized its sentencing approach as follows: "[Section 667.6, s]ubsection (d) says sentence with any other felony. You kind of do it without regard to 1170.1. And there's a case that basically says when you're sentencing for violent sex crimes, you kind of sentence on the violent sex crimes separately from the other determinate terms and the other indeterminate terms, sometimes referred to the three-box approach to sentencing. [¶]... [¶] So the way I'm supposed to sentence him... is essentially view the violent sex crimes together and follow the law as to them, and then consecutively impose whatever normal determinate term would apply with respect to any counts that are subject to determinate term sentencing under 1170.1."
Pelayo, supra, 69 Cal.App.4th 115, required the court to calculate the term for any nonsex crimes independently of the section 667.6 term and then add the two together. As the People point out, its only discretion to be exercised was to select the low, middle or upper term for each of the convictions. Though the court's explanation was somewhat imprecise, this is ultimately the approach it took in this case. Campos's argument to the contrary - that the court did not understand its discretion to impose a concurrent offense for count 13 where it was part of a single indivisible transaction with count 12 - fails to appreciate that count 13 was a nonsex offense to be sentenced not under section 667.6, subdivision (c), but independently under section 1170.1.
We also find no support for Campos's point - made in reply without citation to authority - that section 1170.1 "plays no determinative role" in the sentencing of counts 12 and 13 because the kidnapping of count 13 "was the method by which Count 12 was accomplished." Nor are we convinced that resentencing is required under either People v. Smith (1984) 155 Cal.App.3d 539, or People v. Williams (1986) 180 Cal.App.3d 57, which Campos cites for the general proposition that section 667.6, subdivision (d) does not apply unless some intervening event or passage of time occurs between the offenses. Neither case involves circumstances where a nonsex offense arguably occurred on the same occasion as the sex offense enumerated in section 667.6, subdivision (e).
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.