Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF026899, Rafael A. Arreola, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant and appellant Randy Matthew Cordero appeals from his conviction of infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 1), false imprisonment (§ 236; count 2), and attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2); count 3). Defendant contends (1) his conviction on count 3 must be reversed because of insufficiency of the evidence; (2) the abstract of judgment must be corrected to reflect that count 3 is not a violent felony; and (3) the reference to the imposition of a booking fee must be stricken from the abstract of judgment because the trial court did not impose such a fee. On our own motion, we requested the parties to provide additional briefing to address whether section 654 requires that the sentence for one or more of defendant’s convictions be stayed.
All further statutory references are to the Penal Code unless otherwise indicated.
The People concede the abstract of judgment must be corrected to reflect that count 3 is not a violent felony. We conclude that defendant’s sentence for count 2 must be stayed under section 654. We find no other errors.
II. FACTS AND PROCEDURAL BACKGROUND
In 2008 defendant lived with his girlfriend, N., in Hemet. N. testified that on October 18, they attended a wedding and both became intoxicated. They returned home and went to bed, but at 2:00 or 3:00 the next morning, defendant woke N. up and asked her to orally copulate him, and he pushed her head toward his crotch. N. told defendant “no” and slapped his hand away. Defendant called her a “bitch” and hit her 10 or so times. She tried to hit back to defend herself, and she tried to leave the bedroom three times. Each time, however, he threw her back on the bed and told her she was not going anywhere.
One of the times when she tried to leave, he said “no” and pushed her back. N. punched defendant, and he punched her in the mouth. She fell backwards into a dresser and a closet door, putting a hole in the door. She sustained numerous bruises and injuries, including a cut on her arm. Defendant kicked N. while she was on the floor but finally permitted her to leave. He called her a “bitch” and told her to get all her things and leave.
N. walked to a nearby store and called defendant’s mother. She then walked about a mile to defendant’s aunt’s house. Defendant’s mother and aunt drove her to the hospital. N. told the hospital staff and a police officer what defendant had done to her. She stayed at the hospital until about 10:00 a.m.
A couple of weeks later, N. spoke to defendant; she felt guilty that he was in jail because of the incident. At the preliminary hearing, N. lied and said she had been injured at a liquor store by people who knew her brother. Defendant had asked her to tell that story. A recording of their telephone call while defendant was in jail was played for the jury, and a transcript was provided to the jury. On the recording, defendant was heard telling N. to say that the police officer had made up the report or misinterpreted what she had said, and to say she had made up her story because she was angry at defendant for crashing her car.
Hemet Police Officer Silafaga Vaeoso spoke to N. at the hospital. N. appeared to be in disbelief about what had happened. The officer saw that N. had a cut and bruising on her arm, bruising on her wrist, and redness on her neck that she said had been caused by defendant ripping a necklace from her neck. However, the officer did not see any injuries that were consistent with N. having been punched in the face.
An audiotape of Officer Vaeoso’s interview of N. was played for the jury, and a transcript was provided to the jury. Officer Vaeoso further testified that, in a portion of the interview that was not recorded, N. said that defendant moved her head toward his crotch area after she had said no, and that when she continued to say no, he began striking her.
The jury found defendant guilty of infliction of corporal injury on a cohabitant, (§ 273.5, subd. (a); count 1), false imprisonment (§ 236; count 2), and attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2); count 3). In bifurcated proceedings, defendant admitted prior serious felony/strike convictions for attempted robbery and making terrorist threats.
Defendant filed a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss the strike allegations. Following a hearing, the trial court dismissed one of the strike priors. The trial court sentenced defendant to a total term of 21 years four months in prison. The sentence included eight years (the upper term, doubled) for count 1; 16 months (one-third the middle term, doubled) for count 2; two years (one-third the middle term, doubled) for count 3; and five years for each of defendant’s two prior serious felonies.
III. DISCUSSION
A. Sufficiency of Evidence
Defendant contends his conviction on count 3 must be reversed because the evidence was insufficient to establish that he attempted to commit forcible oral copulation.
1. Standard of Review
“The standard of appellate review for determining the sufficiency of the evidence is settled. ‘“On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]”’ [Citation.] ‘... Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 806.) The testimony of a single witness, unless it is physically impossible or inherently improbable, is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
2. Analysis
Defendant’s argument is based on his assertion that “[a]t no time after [he] began striking [N.] did he attempt to have her orally copulate him.” He contends the evidence established only that when he asked N. to perform consensual oral sex on him, he became upset after she refused and then committed the false imprisonment and spousal battery.
N. testified at trial that she woke up when defendant was pushing her head toward his crotch and was asking her to perform oral sex on him. She testified that after she refused and slapped his hand away, he became angry and started hitting her. Officer Vaeoso testified, however, that in an initial unrecorded portion of the interview, N. had told him that defendant moved N.’s head toward his crotch area after N. had said no, and when she continued to say no, defendant began striking her.
The word force, as used for purposes of the crime of forcible oral copulation, means that “‘“the defendant used physical force of a degree sufficient to support a finding that the act... was against the will of the [victim].”’” (People v. Guido (2005) 125 Cal.App.4th 566, 574-575, quoting People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.) Under that definition, defendant’s pushing N.’s head toward his crotch after she had refused his advances was sufficient to establish the element of force.
In short, the jury heard two versions of the events and chose to believe Officer Vaeoso’s testimony rather than N.’s. Officer Vaeoso’s testimony constituted sufficient evidence to support defendant’s conviction of attempted forcible oral copulation.
B. Amendment of Abstract of Judgment
The abstract of judgment indicates that defendant’s conviction on count 3 was for a violent felony. Defendant contends the abstract of judgment must be amended to reflect that count 3 was not a violent felony.
The People concede error: although forcible oral copulation is listed as a violent felony, an attempt to commit an enumerated felony is not itself a violent felony. (§ 667.5, subd. (c); see also People v. Le (1984) 154 Cal.App.3d 1, 11, fn. 9.) We will thus order the abstract of judgment to be amended accordingly.
C. Booking Fee
Defendant contends the reference to the imposition of a booking fee must be stricken from the abstract of judgment because the trial court did not impose such a fee.
1. Additional Background
The abstract of judgment states defendant was ordered to pay $387.97 for booking fees under “29550 GC.” At sentencing, however, the trial court did not orally impose a booking fee. Moreover, the probation officer’s report, to which the trial court referred at the sentencing hearing, did not recommend such a fee, and the trial court made no determination of defendant’s ability to pay the fee.
2. Analysis
Although the minute order referred to “29550 GC, ” defendant argues it was imposed under Government Code section 29550.2, subdivision (a), and it was a discretionary rather than a mandatory sentencing decision. Thus, defendant contends, because the trial court did not orally pronounce the fee, we must reverse it. We disagree.
Government Code sections 29550, 29550.1, and 29550.2 govern fees for booking or processing arrestees into a county jail; those sections vary, based on which agency conducted the arrest. Here, Officers Vaeoso and Caballero of the Hemet Police Department were the arresting officers. Arrests made by a city are governed by Government Code sections 29550, subdivision (a)(1), and 29550.1.
Government Code section 29550, subdivision (a) allows a county to impose a fee on a city “for reimbursement of county expenses incurred with respect to the booking or other processing of persons arrested by an employee of that city....” Government Code section 29550.1, in turn, states: “Any city... whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. A judgment of conviction shall contain an order for payment of the amount of the criminal justice administration fee by the convicted person, and execution shall be issued on the order in the same manner as a judgment in a civil action, but the order shall not be enforceable by contempt....” (Italics added.) Moreover, nothing in the statute requires a determination of the defendant’s ability to pay.
The Legislative Counsel’s Digest of a 1993 bill that amended Government Code section 29550.1 noted then-existing law authorized that a judgment of conviction could contain an order for the payment of the criminal justice administration fee. The express purpose of the amendment was to “require that the judgment of conviction contain an order for payment of the fee.” (Legis. Counsel’s Dig., Assem. Bill No. 2286 (1993-1994 Reg. Sess.) 5 Stats. 1993, Summary Dig., p. 364, italics added.) The express language of the statute and its legislative history make clear that the fee imposed under Government Code section 29550.1 is mandatory.
Somewhat paradoxically, in contrast, Government Code section 29550.2, which applies if certain agencies other than those listed in Government Code section 29550.1 were the arresting agencies, authorizes the fees but makes them subject to a defendant’s ability to pay and therefore discretionary. (See, e.g., People v. Rivera (1998) 65 Cal.App.4th 705, 712 [“The fees [under Gov. Code, § 29550.2] are limited to the actual administrative costs and are assessed against all offenders who have the ability to pay the fee....”] (italics added); People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398-1400 [fee imposed under Gov. Code, § 29550.2 requires a finding of ability to pay].) Here, however, the fee could only have been imposed under Government Code section 29550.1, which contains no requirement of a finding of ability to pay and makes the fee mandatory.
When a fine or fee is mandatory, the sentence is unauthorized and is subject to correction at any time. (See, e.g., People v. Martinez (1998) 65 Cal.App.4th 1511, 1519 [criminal laboratory analysis fee was mandatory, and not subject to a finding of ability to pay; trial court’s failure to impose such a fee was jurisdictional error subject to correction on appeal].) Thus, the trial court’s failure to orally pronounce the fee at the sentencing hearing is immaterial. There was no error.
D. Section 654
The trial court imposed separate consecutive sentences for each of defendant’s three crimes. In doing so, the trial court did not expressly address section 654 but stated, “There are separate crimes, so you have to be sentenced consecutively in my view.” On our own motion, we requested the parties to provide additional briefing to address whether section 654 requires that the sentence for one or more of defendant’s convictions be stayed.
Section 654 bars multiple punishments when a defendant, acting with a single criminal intent, violates multiple penal statutes during an indivisible course of conduct or incident to a single objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) However, “multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.” (People v. Felix (2001) 92 Cal.App.4th 905, 915.) “‘Separate sentencing is permitted for offenses that are divisible in time....’” (Ibid.)
Whether multiple convictions were part of an indivisible transaction is a question of fact for the trial court. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We uphold the trial court’s implied finding that a defendant harbored a separate intent and objective for each offense if substantial evidence supports such a finding. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [Fourth Dist., Div. Two].) In our review, we consider the evidence in the light most favorable to the judgment, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must determine whether the separate violations were a means toward the objective of commission of the other. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
Defendant argues that all three convictions were part of an indivisible transaction and were pursuant to a single intent and objective. In People v. Quinlan (1970) 8 Cal.App.3d 1063, for example, the court held that section 654 barred sentence for both kidnapping and assault when the assault was committed for the purpose of compelling the victim to accompany the defendant. (People v. Quinlan, supra, at p. 1066.) The People argue the three crimes occurred in a distinct sequence: First, defendant attempted forcible oral copulation; next, he inflicted corporal injury by slapping her repeatedly; and, finally, he falsely imprisoned her. The People further argue that defendant had a distinct and separate objective in committing each of the three crimes.
We agree that substantial evidence supports the trial court’s implied finding that defendant’s objective in attempting forcible oral copulation differed from that for the other offenses. After N. successfully resisted defendant, he ceased his efforts to force her to perform oral sex on him and instead exploded into violence and began slapping her and prevented her from leaving. Thus, the trial court could reasonably find that the violence and false imprisonment were gratuitous and were motivated by a separate intent to punish N.
When the defendant inflicts gratuitous violence on a helpless and nonresisting victim far beyond that reasonably necessary to accomplish an underlying criminal objective, the defendant may be punished separately for such acts of violence. Thus, in People v. Nguyen (1988) 204 Cal.App.3d 181, the court held that the shooting of a witness who had been taken to a back room and forced to lie on the floor was not part of a single intent in carrying out a robbery. (Id. at pp. 190-192.) Similarly, in People v. Cleveland (2001) 87 Cal.App.4th 263, 272, the court held that when the defendant beat the victim senseless, the attempted murder could not be viewed as merely incidental to a robbery.
The People further argue the corporal injury and false imprisonment were distinct in time and objective. They argue the corporal injury was that defendant “smack[ed] her repeatedly until she nearly ‘blacked out’” and the false imprisonment was later preventing her from leaving the bedroom. However, that argument omits the fact that, while preventing N. from leaving the bedroom, defendant struck N. in the mouth, which sent her flying backwards into a dresser and closet door, causing a scrape and bruising to her arm. At trial, the prosecutor relied on the injuries to her arm as the traumatic injury required to establish defendant’s guilt of corporal injury on a spouse, rather than the lesser included offense of simple battery on a cohabitant.
Section 273.5, subdivision (c) defines a “traumatic condition” as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” Bruising is a “traumatic condition” for purposes of section 273.5, but pain alone is insufficient. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085; People v. Abrego (1993) 21 Cal.App.4th 133, 137-138 [Fourth Dist., Div. Two] [pain and tenderness without visible evidence, resulting from the defendant’s slapping the victim in the face and head, did not constitute a traumatic condition].)
Thus, we find no substantial evidence in the record either that the corporal injury and false imprisonment were separate in time or that defendant had separate objectives in committing those two crimes. Defendant’s sentence for false imprisonment must therefore be stayed.
IV. DISPOSITION
The judgment is modified to stay execution of sentence for count 2 under section 654. In addition, the abstract of judgment shall be amended to reflect the stay of execution of sentence for count 2, and that count 3 is not a violent felony. The clerk of the court is directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MCKINSTER J., KING J.