Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD173275, David M. Gill, Judge.
HUFFMAN, Acting P. J.
A jury convicted George Munoz (appellant) of numerous offenses arising out of a 2002 incident in which he and a companion, armed, went to the house of an acquaintance and over the course of several hours, forced several inhabitants to do various things against their will. The convictions include four counts of oral copulation by acting in concert (Pen. Code, § 288a, subd. (d); counts 1-4); three counts of assault with an assault weapon, in violation of section 245, subdivision (a)(3) (counts 5-7); residential burglary of an inhabited dwelling house, with intent to commit a felony (§§ 459, 460; count 8); and three counts of first degree robbery in violation of sections 211 and 212.5, subdivision (a) (counts 9-11). In addition, appellant was convicted of count 12, unlawful taking or driving of a vehicle, in violation of Vehicle Code section 10851, subdivision (a); count 13, possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1); and count 14, receiving stolen property, in violation of section 496, subdivision (a).
All statutory references are to the Penal Code unless otherwise specified, and refer to versions in effect at the time of the offenses.
With regard to counts 1 through 4, additional findings were made under the one strike law, section 667.61, that the oral copulation in concert was accomplished by means of force or fear, with the personal use of a firearm, against multiple victims, and through the use of tying or binding. (§ 667.61, subds. (b), (c) & (e).) Firearms enhancements were found true. (§§ 12022.3, subd. (a); former 12022.5, subd. (a)(1) [effective at the time of the offense]; 12022.53, subd. (b).)
With regard to counts 5 through 12, true findings were made that appellant was personally armed with a firearm under section 12022.5, subdivision (a)(1), and with respect to counts 9 through 12, he personally used a firearm (§ 12022.53, subd. (b)).
Appellant admitted that he had served a prior prison term. (§ 667.5, subd. (b).) He also admitted to the following priors: two prior serious felony convictions from 1994 (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)); and three strike priors from 1991 and 1994. (§§ 667, subd. (b)-(i); 668, 1170.12.) After the verdict, he moved for a new trial on several grounds, contending that his previous trial counsel provided ineffective assistance when he failed to call certain witnesses, including appellant. The motion was denied.
Appellant was sentenced under the one strike law and the three strikes law to an aggregate prison term of 479 years, consisting of the count 1 term of 25 years to life for oral copulation by acting in concert, tripled, with 10 years added for the firearm enhancement pursuant to section 12022.53, subdivision (b), and two additional five-year terms under section 667, subdivision (a)(1) (serious felony prior convictions), for a total of 95 years to life. (§§ 667, subd. (b)-(i); 1170.12; 667.61, subds. (b), (c) & (e).) A separate middle term for the firearm enhancements was stayed under section 12022.53, subdivision (f). (§§ 12022.3, subd. (a); 12022.5, subd. (a)(1).) Pursuant to section 654, a one-year term for the prison prior was stayed. (§ 667.5, subd. (b).) Another identical consecutive term of 95 years to life was imposed, for the second count of oral copulation by acting in concert.
Additionally, two 25-years-to-life terms were imposed, each consecutively, for the other two counts of oral copulation by acting in concert (plus a 10-year firearm enhancement under § 12022.53, subd. (b), and two five-year prior serious felony enhancements; the other firearm enhancements were stayed). (§§ 667, subd. (a)(1); 12022.53, subd. (f); 12022.3, subd. (a); 12022.5, subd. (a)(1).) A prison prior one-year term was stayed. (§§ 654; 667.5, subd. (b).) This resulted in two additional consecutive sentences of 45 years to life.
For count 8, the burglary charge, a consecutive term of 25 years to life was imposed, together with a four-year enhancement for personal use of a firearm and two five-year prior serious felony terms (§§ 12022.5, subd. (a)(1); 667, subd. (a)(1), total, 39 years to life). The prison prior term was stayed. (§§ 654; 667.5, subd. (b).) On count 13, possession of a firearm by a felon, a consecutive sentence of 25 years to life was imposed, with the term for the prison prior stayed under section 654.
On the three robbery convictions, three separate terms of 25 years to life, consecutive, were imposed, together with a 10-year firearm enhancement and two five-year enhancements for serious felonies. (§§ 12022.53, subd. (b); 667, subd. (a)(1).) Other firearm enhancements were stayed pursuant to section 12022.53, subdivision (f), and the prison prior was stayed; total, 45 years to life for each of the three robberies. (§§ 12022.5, subd. (a)(1); 654; 667.5, subd. (b).)
On the assault offenses and related enhancements, three separate sentences of 25 years to life were imposed, along with a middle term under section 12022.5, subdivision (a)(1) (firearm), a prison prior term, and serious felony prior terms; however, all these were stayed under section 654. The court further imposed, but stayed under section 654, separate sentences of 25 years to life, plus prison priors, on count 12 (plus firearms enhancements and two prior serious felony terms), and count 14.
Appellant contends there was no substantial evidence to support the finding that he was guilty of the four counts of oral copulation in concert, because at most he was only an aider and abettor, who, together with his companion, forced his two victims to orally copulate each other, twice. Under his theory, only the actual participants in the oral copulation incidents are the perpetrators. In the alternative, he argues two of these four convictions should be reversed, since the same participant in each of the two incidents should not properly be designated to be both a victim and a perpetrator. Next, appellant argues that his new trial motion was erroneously denied, because he was prejudiced by ineffective assistance of counsel at trial, for lack of production of certain witnesses.
Appellant also claims sentencing error in several respects: first, it was error to sentence him consecutively on the four convictions for oral copulation in concert, because that was excessively punitive and not required by statute. (§§ 667.61, 667, 667.6.) Alternatively, he argues insufficient reasons were stated for imposing consecutive sentences. Next, he contends the trial court erroneously sentenced him to a consecutive term on the burglary conviction, under section 654, because there is no indication it was based on a separate course of conduct from that which underlies the robbery convictions. Further, he argues the trial court erred in staying, instead of striking, certain firearm enhancements and the prison prior, or the terms imposed on them. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 712-713 (Bracamonte).)
Originally, the People conceded that the firearm enhancements and prison prior terms should be stricken, not stayed. However, in a supplemental brief, the People have withdrawn that concession and now argue that the trial court acted correctly. They rely on a case then pending before our Supreme Court, People v. Gonzalez (June 2, 2008, S149898) 2008 Cal. Lexis 6664. That opinion disapproves Bracamonte, supra, 106 Cal.App.4th, in part and holds that the appropriate sentencing, where separate firearm enhancement allegations under sections 12022.5 and 12022.53 are found true for the same crime, is to impose punishment under section 12022.53 for the longest term, and then impose and stay the separate terms under section 12022.5 (rather than striking them). (Gonzalez, supra, 2008 Cal. Lexis 6664.)
We have examined the arguments and the record and affirm the convictions and the judgment, as modified to strike the prison priors only, with directions to the trial court to prepare an amended abstract of judgment and submit it to the Department of Corrections; in all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
The Incident (Prosecution Case)
In the early morning of December 7, 2002, appellant and a companion went to the apartment of Scott P. and Joseph F. in San Diego. Scott and Joseph had two other roommates, appellant's uncle Joseph M. (Uncle M.) and Jorge S. (Jorge). At that time, Scott had known appellant for about three or four months. Appellant and his companion (never identified or charged) let themselves into the apartment, bringing beer. Ten minutes later, appellant took Joseph and Scott into another room and closed the door. Jorge came too. Appellant and his companion were carrying guns. Appellant demanded Scott repay him $5,000, and Scott said he did not owe anything, but appellant disagreed and pointed his assault weapon at Scott and Joseph. Appellant's companion put a pistol into Scott's mouth, while appellant laughed. Appellant then took wallets, keys and a cell phone from Scott and Joseph, and they were forced to give him their personal identification numbers (PIN).
Next, appellant told Scott and Joseph to lie down on the floor and tied their hands behind them with belts. Jorge was told to sit against the wall. Appellant then ordered Joseph to perform oral sex upon Scott, after removing his clothes, and appellant threatened to kill Joseph if he didn't. Joseph complied, up to a point. Next, appellant ordered Scott to perform oral sex upon Joseph, and Scott objected but complied. Appellant then told Joseph to perform anal sex on Scott, and Joseph simulated it. Appellant again bound their hands with belts and an extension cord. He punched Scott and pushed Joseph.
Later that morning, appellant told Joseph and Scott to get dressed and told Scott to call his father, Marc P. When Marc arrived at the residence after being summoned, supposedly to help with a water leak, he was ordered in at gunpoint and his wallets, keys and cell phone were taken, and Marc was forced to give up his PIN number. After about 30 minutes, appellant and his companion departed with Jorge, taking Joseph's car. Before he left, appellant told Scott, Joseph, and Marc not to move for 15 minutes and told them he was wearing a bulletproof vest and was not afraid of taking on or taking out the police. Marc called the police.
Appellant was later apprehended in Los Angeles. Joseph's car was recovered in National City. Appellant's Uncle M. returned Scott's wallet to police at the time of appellant's preliminary hearing. On December 7, $300 had been withdrawn from Scott's bank account without his permission.
Later, Uncle M. visited Scott and offered him $3,000 if he would change his testimony at the upcoming trial. Scott refused. Joseph testified he did not agree to fake a robbery to steal money from Marc. Marc did not see Uncle M. in the apartment during the incident.
Second Amended Information; Jury Trial
Appellant was charged with numerous offenses, as outlined above. In Counts 1 through 4 (oral copulation by acting in concert, by means of force or fear (§ 288a, subd. (d)), two incidents were alleged, each involving two victims, Scott and Joseph, for a total of four counts. Further allegations were made of commission during a burglary, personal use of a firearm, more than one victim, and tying or binding the victims during the offense. (§ 667.61, subds. (b), (c) & (e).) Also, firearm enhancements (assault weapon) were alleged for each count. (§§ 12022.3, subd. (a), use during sex offense; 12022.5, subd. (a)(1), personal use; 12022.53, subd. (b), personal use.)
Counts 5 through 7 charged assault with an assault weapon, in violation of section 245, subdivision (a)(3) (upon Scott, Joseph, and Marc; the firearms enhancements were alleged regarding counts 5-12 as outlined above). Count 8 charged residential burglary of an inhabited dwelling house, with intent to commit a felony. (§§ 459, 460.) Counts 9 through 11 charged three first degree robbery offenses in violation of sections 211, 212.5, subdivision (a) (Scott, Joseph, and Marc). Count 12 charged unlawful taking or driving of Joseph's vehicle, in violation of Vehicle Code section 10851, subdivision (a). Count 13 charged possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1). Count 14 charged receiving stolen property, in violation of section 496, subdivision (a).
Additionally, a prior prison term, two prior serious felony convictions, and three strike priors were alleged, as outlined above.
At trial, witnesses for the prosecution included Scott, Joseph, and Marc, who described the events outlined above. The parties stipulated that appellant had a prior forcible rape conviction from May 1991, also involving forcible oral copulation, as an uncharged offense to be considered for limited purposes. (§ 261, subd. (a)(2).)
Defense Case; Verdict; New Trial Motion; Sentencing.
In the defense case, appellant did not testify. His Uncle M. testified that Scott told him that he needed money to pay his debts, so they decided to rob Marc, Scott's father, as a means of preventing Scott from getting harmed by his creditors. Uncle M. said appellant was not there when the incident took place, and Marc might not have seen Uncle M. because he was behind the door at the time. According to Uncle M., Scott and Joseph were not forced to have sex. Scott later told Uncle M. that what was stated in the police reports did not happen. Scott has an alcohol problem.
According to Uncle M., he had lied earlier at the preliminary hearing when he said he had hired two other people to do the robbery. He has several theft-related convictions.
Appellant's brother-in-law, Kevin C., testified that appellant spent the night at Kevin's home in early December, in Rancho Cucamonga. The next day, Kevin discovered police had visited appellant's residence in San Diego.
The prosecution presented rebuttal evidence that Uncle M. earlier told a public defender investigator that before the incident occurred, he told Scott to sell his truck if he needed money, since the father, Marc, did not have a lot of money. Immediately after the incident, Uncle M. told a police interviewer that if he had known what would happen at the apartment that night, he would have tried to stop it.
Following instruction, the jury returned a verdict convicting appellant on all counts and finding all enhancements true.
Appellant moved for a new trial on the basis that his previous trial counsel had provided ineffective assistance when he failed to allow him to testify, or to call certain witnesses to support his defenses about being elsewhere that night. Those arguments will be described in part IV, post.
At the sentencing hearing, appellant sought to have the trial court strike his prior convictions from 1994, as too remote in time. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The motion was denied and the court proceeded to sentence appellant as outlined above. He appeals.
DISCUSSION
I
ISSUES REGARDING COUNTS 1 THROUGH 4
A. Sufficiency of Evidence
To address appellant's contention there was insufficient evidence to support the convictions of four counts of oral copulation in concert, we view the facts brought forth at trial in full, in the light most favorable to the judgment of conviction, drawing all inferences in support of the judgment. (People v. Silva (1988) 45 Cal.3d 604, 625; People v. Johnson (1980) 26 Cal.3d 557, 576 (Johnson).) We resolve the issues based upon the entire record, in determining whether there is substantial direct or circumstantial evidence of the existence of each element of the offenses. (People v. Ferrara (1988) 202 Cal.App.3d 201, 207.) The test is whether substantial evidence, of credible and solid value, supports the jury's conclusions. (Johnson, supra, 26 Cal.3d at p. 578.)
In making those determinations, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We therefore consider whether " ' "any rational trier of fact could have found the essential elements of [the offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the [convictions]," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Appellant frames his arguments in terms of statutory interpretation of section 288a, subdivision (d), and contends that its language does not support any (or more than two) convictions under these facts. That section provides: "Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (1) when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person . . . shall be punished by imprisonment in the state prison. . . . ." Appellant chiefly contends he cannot be considered a perpetrator who committed the prohibited sex acts, even if he or his companion were each aiders and abettors of each other. Instead, he interprets the statute to say that only Joseph and Scott may be considered to be each other's perpetrators in these offenses. As defined in section 288a, subdivision (a), oral copulation is "the act of copulating the mouth of one person with the sexual organ or anus of another person." Appellant argues he did not commit an act of oral copulation, personally.
In the alternative, appellant asserts that at least two of the convictions must be reversed, on the theory that the same participant cannot be both the victim and the perpetrator in an offense. He relies on case law to support his contention that exclusive of the victim, there must be at minimum, a perpetrator and an aider/abettor, or there can be no "voluntary act in concert with another person," within the meaning of the statute. (People v. Calimee (1975) 49 Cal.App.3d 337, 341.) For example, in People v. Manners (1986) 180 Cal.App.3d 826, 832, the court said that the scope of this subdivision, regarding acting in concert, covers persons beyond the two who were directly involved in the sex act.
To address these claims, we must consider not only the evidence in the record before the jurors, but also the instructions given to them. The jury was told, in accordance with CALCRIM No. 443, that "if a defendant forced another person to commit a crime by threatening, menacing, commanding, or coercing that person, then the defendant is guilty of the crime that the defendant forced the other person to commit."
In People v. Pelayo (1999) 69 Cal.App.4th 115, 121, the court stated: "One who aids and abets a crime may be convicted for any natural or probable consequence of the act that was encouraged or facilitated. [Citation.] A person can be convicted of an offense even if he is not in the room when the crime occurs. [Citation.]" Also, a person may be found to be a principal in a sexual offense committed against another if he aided and abetted in the commission of it by another person. (Matter of Application of Kantrowitz (1914) 24 Cal.App. 203, 204-205.) In other words, a defendant may be guilty of a sexual offense committed by another, even without the defendant having any actual physical contact with the victim. (People v. Greenberg (1980) 111 Cal.App.3d 181, 185-186.)
Appellant relies on People v. Culbertson (1995) 171 Cal.App.3d 508, a case interpreting the "participates" language of section 288a, subdivision (c), to argue that section 288a, subdivision (d) should be interpreted similarly, to apply only to the two people whose actual physical involvement is necessary to the act of oral copulation. However, subdivision (d) of this section does not use the "participates" language, so that case is inapposite.
This record, viewed in accordance with the appropriate rules, showed that during these events, there were two victims who were each victimized twice, and that none of this would have occurred without the threats and coercion by appellant as a principal and/or an aider and abettor, together with his armed companion. In the first instance, appellant had already told Scott and Joseph to lie down on the floor, when he ordered Joseph to remove their clothes and perform oral sex on Scott. Joseph testified appellant threatened to kill him if he didn't, so he complied. Appellant's companion was providing a menacing presence at the time as well. Scott did not consent to that forcible act, and accordingly both he and Joseph (also under duress) are equivalent to victims in the first instance.
Next, when appellant ordered Scott to perform oral sex on Joseph, and Scott complied, neither of them had consented to that additional act. They were being threatened with guns and harm by appellant and his companion, who was standing by, and after those events, they were again tied up and pushed around.
It makes no difference that appellant did not personally commit oral copulation, nor help his companion to do so, for purposes of applying the statutory definitions in section 288a, subdivisions (a) and (d). The evidence showed that appellant was equivalent to or amounted to a perpetrator, who was aided and abetted by his companion, while Joseph and Scott were not perpetrators in these acts, because of the force and duress being used on them by appellant. This conclusion is supported by the language of CALCRIM No. 443, because appellant's use of force against the other two men means that he is guilty of the crime of force that he forced each of them to commit, and that occurred twice; two plus two is four.
In short, when an unwilling person is forced to orally copulate a second, unwilling person, both are victims of unlawful oral copulation. Thus, on this record each of the men was victimized twice. Within the meaning of section 288a, subdivision (d), appellant qualifies as a person who, while voluntarily acting in concert with another person (i.e., his companion with the gun), was a principal in committing the acts of oral copulation, by aiding and abetting one another to forcibly require the two innocent victims, acting as their agents, to carry out their orders.
Therefore, appellant is incorrect that this statute "does not encompass the scenario where the only participants in the sex act are victims or the victim is considered both a victim and perpetrator whom the cohort is aiding and abetting." Rather, the statute should reasonably be interpreted to hold a person criminally liable as a principal, or for aiding and abetting, regarding a sexual offense that is actually committed by another directly because of the threats and force used. Under these circumstances, the statute does not require that there must be a victim separate from the perpetrator, when the correct analysis of the definition of the principal in the offense is considered. Here, the two actual participants in the sex acts were each victims, twice, because of the acts of appellant.
Contrary to appellant's assertions otherwise, these facts provided sufficient evidence from which a reasonable jury could determine that there were four victims in the course of these events, and the judgment on each count is supported by the evidence.
B. Sentencing Issues on Counts 1 through 4
Appellant first contends that the trial court erred by imposing four consecutive terms for his four convictions of oral copulation in concert, because there is no such requirement in either section 667.61 or in the three strikes statutes (§§ 667, subds. (b)-(i), 1170.12). Further, he argues section 667.6, subdivisions (c) through (d), dealing with the effect of prior sex offense convictions upon the current sentencing, does not require consecutive sentences under his interpretation of the facts, so that he believes the trial court erroneously treated consecutive sentencing as mandatory.
In the alternative, appellant contends that if the trial court was sentencing him under the terms of section 667.6, subdivision (c) (using the same victim, same occasion reasoning), it failed to state adequate reasoning for doing so, or for making discretionary sentencing choices, and the matter should be remanded for resentencing.
In response, the People first argue that an insufficient objection, if any, was made at the sentencing hearing, so that any such arguments have been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) In the alternative, the People argue there was no error and adequate reasons were stated for the discretionary choices made in sentencing.
A. Background
At the outset, we note that the record shows the probation report originally stated that consecutive sentencing was mandatory regarding counts 1 through 8 and count 13, in light of appellant's admitted strike priors. (§§ 667, subd. (c)(6), (7); 1170.12, subd. (a)(6), (7).) However, after the court discussed the matter with counsel and continued the hearing, the prosecutor filed a later sentencing memorandum that instead proposed that the terms imposed for counts 5, 6, and 7, as well as counts 12 and 14, should be stayed under section 654. This was done in response to recent case law, including Cunningham v. California (2007) 549 U.S. 270 (Cunningham).) A sentence of 479 years was recommended by the prosecutor, as opposed to the longer sentence originally recommended by the probation officer, an indeterminate sentence of 367 years to life, plus 160 years.
In the probation report, consecutive terms were recommended for counts 1 and 2, on the basis that those counts involved two separate victims and crimes committed on a single occasion. (People v. Jones (2001) 25 Cal.4th 98, 103 (Jones).) Regarding counts 3 and 4, the probation report recommended that the punishment be imposed under section 667.6, subdivision (d), although the same victims were involved as in counts 1 and 2 (separate occasions). However, the probation officer said there were no issues under section 654 as to counts 1 through 4, because each count described a separate act of degradation.
At the sentencing hearing, defense counsel requested that the trial court strike appellant's 1994 strike priors, due to their remoteness in time. He therefore recommended a sentence of 35 years to life. Defense counsel also requested that the court stay every term except count 1, for a sentence of 95 years to life. Although this request is somewhat unclear, it may be construed as a request to impose concurrent terms, thus preserving an objection to consecutive sentencing on appeal. (§ 669; Scott, supra, 9 Cal.4th 331, 353.)
In discussion with counsel, the trial court set forth its preliminary reasoning as to counts 1 through 4, noting that each incident represented an affront to the human dignity of each participant, each time, and therefore the offenses involved multiple victims. The court stated that there should not be any discount on sentencing because there were multiple victims, in terms of whether very long, consecutive sentences could properly be imposed in cases of sex offenses against multiple victims (although the court recognized that the issue became academic where sentences exceeding a normal lifespan were imposed). The court then stated that it was ready to pronounce judgment and impose sentence. Defense counsel then requested that appellant be allowed to speak, and they discussed the previously ruled upon new trial motion (denied). The court then sentenced appellant as outlined above.
B. Legal Standards
To oppose consecutive sentencing, appellant again frames his arguments in terms of statutory interpretation of several sentencing schemes. He contends that section 667.61 does not expressly allow consecutive sentences, and he argues the power to impose them in a case of multiple victims should not be implied. He relies on People v. Murphy (1998) 65 Cal.App.4th 35, 39-43, as authority that former section 667.61, subdivision (g) should be interpreted as allowing a defendant to be sentenced to only one life term per victim, per occasion, and that the trial court must exercise its discretion on whether additional sentences should run consecutively or concurrently. (Also see People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261-1263 [§ 669 allows either concurrent or consecutive terms for multiple convictions, absent an express statutory provision to the contrary].)
Former section 667.61, subdivision (g) was in effect in 2002, at the time of these offenses, and provided for imposition of one term for any offense committed against a single victim during a single occasion. However, if there were multiple victims during a single occasion, multiple terms could be imposed, one for each separate victim. The current version of section 667.61 now allows, in subdivision (i), for consecutive sentencing for separate victims or the same victim on separate occasions, pursuant to section 667.6, subdivision (d). However, we will apply the previous version of the statute, together with related provisions.
Appellant also contends that the three strikes law does not expressly require the sentences on counts 1 through 4 to run consecutively, because these offenses were committed on the same occasion and arise from the same set of operative facts. (§ 1170.12, subds. (6), (7); People v. DeLoza (1998) 18 Cal.4th 585, 591-596.) Where offenses are committed essentially simultaneously against the same group of victims, they are deemed to have been committed on the same occasion. (Id. at p. 595.) Appellant argues consecutive sentences will impermissibly result in an excessively long and illogical sentence that will outlast his lifetime. (Id. at pp. 600-601, conc. opn. of Mosk, J.)
Appellant further contends the consecutive sentencing provision of section 667.6, subdivision (d) should not apply here, because he does not believe his crimes involved separate victims or the same victim on separate occasions. Rather, he argues the trial court must have been proceeding under section 667.6, subdivision (c), under which consecutive sentences are discretionary if the offenses involved the same victim on the same occasion. If so, he continues, the trial court erroneously failed to state adequate reasons for its discretionary sentencing choices. (People v. Robinson (1992) 11 Cal.App.4th 609, 614, disapproved on another point in Scott, supra, 9 Cal.4th at p. 353.)
C. Discussion
As previously noted, the record is not clear whether appellant successfully preserved his objections to consecutive sentencing as a discretionary choice, and in an abundance of caution, we will deem that these issues are properly before us. However, none of appellant's objections has merit. First, to the extent that he is arguing the trial court somehow believed consecutive sentencing was mandatory under any of these sentencing schemes, and acted accordingly, the record does not support any such conclusion. The trial court discussed with counsel the extent of what sentence was justified, in terms of whether the strike priors should be stricken, and whether recent changes in sentencing law under Cunningham, supra, 549 U.S. 270, leading to the supplemental sentencing memoranda, had changed the sentencing framework in this case. The court then put on the record its rationale that multiple victims were involved, and that each time Scott and Joseph were forced to comply with appellant's instructions to engage in oral copulation, there was an assault upon the individual human dignity of each victim. The court appeared to be fully aware that it had a range of sentencing choices before it, and none of these choices absolutely required consecutive sentences.
The record further supports the trial court's interpretation of the sentencing schemes as allowing it to take the entire sequence of events during the incident, as charged and proven at trial, into account in sentencing. Under former section 667.61, subdivision (g), the court had to consider whether there was a single victim on a single occasion, or multiple victims during a single occasion.
In Jones, supra, 25 Cal.4th 98, our Supreme Court, among other things, interpreted the phrase "single occasion" as found in former section 667.61, subdivision (g). It read that section in light of the "separate occasion" language of section 667.6, subdivision (d). (Jones, supra, at p. 103.) For purposes of sentencing, the court in Jones held that in the case of "a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location" (id. at p. 107), it was appropriate for one life sentence, rather than several consecutive life sentences, to be imposed: "Accordingly, we conclude that, for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if they were committed in close temporal and spatial proximity." (Jones, supra, p. 107.)
Conversely, it appears that where a defendant has sequentially assaulted multiple victims, "even in close temporal and spatial proximity, it would be difficult to imagine the crimes ever occurring 'during a single occasion' under Penal Code section 667.61, subdivision (g), because the perpetrator would virtually always have an opportunity for reflection when changing victims. Although it is certainly possible to commit crimes involving 'multiple victims during a single occasion' under the opportunity for reflection standard--e.g., a defendant forcibly requiring one victim to perform a sexual assault on another victim [citations]--we doubt that such circumstances were the Legislature's foremost concern when drafting the statutory language [of former section 667.61, subdivision (g)]." (Jones, supra, 25 Cal.4th 98, 107.)
Using this type of analysis, the dispositive question is whether the sex offenses in this case occurred on a "single occasion," and had the necessary "close temporal and spatial proximity." (Jones, supra, 25 Cal.4th at p. 107.) Here, there were two instances of forcible sexual conduct, and each involved two persons. The trial court explained its reasoning that consecutive terms were warranted because of the separate assaults upon the human dignity of each participant, which occurred more than once in each instance. The jury had convicted appellant of four counts, and had been instructed about how a person who forces another to commit a crime is considered to be a principal of the crime.
There is no indication in this record that the trial court was unaware of the appropriate considerations, nor that it believed it was mandated by section 667.61 or the three strikes law to sentence consecutively. Rather, this was an authorized sentence; under section 667.6, subdivision (d), properly interpreted, the court was allowed to impose consecutive sentences, and it gave sufficient reasons in support. The court's imposition of four separate consecutive terms for the convictions on counts 1 through 4 was supported by the record and applicable sentencing law.
II
SENTENCING ISSUES ON BURGLARY, SECTION 654
A. Argument and Standards
Appellant next argues the trial court violated the prohibition against the double-punishment provision of section 654 when it imposed a consecutive sentence on his conviction for burglary, in light of the other sentences imposed for robbery. He says the sentence on count 8 must be stayed under section 654 to prevent the possibility of prohibited multiple punishment for a single act or omission.
Section 654 states an act punishable in different ways by different provisions of the Penal Code may be punished under only one such provision. This section applies not only to a single act violating multiple provisions of the code but also to an indivisible course of conduct violating several statutes. Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant. If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Beamon (1973) 8 Cal.3d 625, 636-639; People v. Saffle (1992) 4 Cal.App.4th 434, 439-440 [sex offense followed by terror-inflicting false imprisonment warrants multiple punishment].)
Section 654 therefore "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza, supra, 18 Cal.4th 585, 591), and ensures that the defendant's punishment will be commensurate with his criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) " 'It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.' " (People v. Hicks (1993) 6 Cal.4th 784, 789, quoting from People v. Harrison (1989) 48 Cal.3d 321, 335.) If there were multiple objectives, punishment may be imposed for each crime even if the objectives were furthered by " 'common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Vidaurri (1980) 103 Cal.App.3d 450, 465.) Further, if the evidence discloses the defendant's acts were independent and divisible, then "he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, fn. omitted.)
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730.)
B. Discussion
The People argue appellant had two distinct criminal objectives in this respect, the first to enter the dwelling with the intent to commit a felony, such as robbery of an inhabitant there. Second, when another person appeared on the scene, Marc, a separate intent could have been formed to rob him, and apparently that was accomplished as an afterthought. In such a case, separate punishments may properly be imposed for the residential burglary and for robbery.
At the sentencing hearing, the trial court set forth its reasoning as to all counts, by explaining that there were multiple victims here, as well as "different crimes with different elements." The court found no impediment to imposing very long, consecutive sentences in cases of multiple offenses against multiple victims, even though the issue admittedly became somewhat academic where sentences exceeding a normal lifespan were imposed. Previously, the probation report had merely recommended consecutive sentences on counts 1 through 8 and 13, as a matter of three strikes sentencing, and the supplemental sentencing memorandum by the prosecutor did not separately address consecutive sentencing on count 8.
Therefore, the record supports an implied finding by the court, in imposing a consecutive sentence for count 8, that appellant had entertained different intents and objectives when he first entered the dwelling, and later when Marc was robbed, which were separate from and not merely incidental to the commission of the other offenses for which he was sentenced. The court would have been well within its discretion to find on the evidence in this case that the separate robbery of Marc required the formation of a separate objective from his original intent to take money or otherwise intimidate any inhabitant of the dwelling, such that additional punishment is permissible. Substantial evidence in the record supports such implied finding.
Moreover, because the purpose of section 654's prohibition against multiple punishment is to ensure that punishment is commensurate with culpability (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252), courts have recognized that an offense committed to achieve another offense may "at some point . . . become so extreme [that it] can no longer be termed 'incidental' and must be considered to express a different and a more sinister goal than mere successful commission of the original crime." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191, disapproved on other grounds in Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 458, fn. 6.)
In sum, the circumstances shown by the evidence support the trial court's finding that appellant entertained distinct multiple objectives when he entered the dwelling and when the robbery occurred, to justify the imposition of the separate, consecutive term for burglary.
III
ENHANCEMENTS; STAY OR STRIKE?
A. Background and Standards
At sentencing, the trial court imposed enhancement terms on counts 1 through 4 as follows: Separate 10-year enhancements pursuant to section 12022.53, subdivision (b) for each, and also separate four-year enhancement terms for each count, pursuant to both section 12022.3, subdivision (a) and section 12022.5, subdivision (a)(1). The trial court stayed the latter two terms (for all four counts), citing to section 12022.53, subdivision (f). Appellant contends this was error, and the sections 12022.3, subdivision (a)/12022.5, subdivision (a) enhancement terms should have been stricken.
Likewise, for counts 9 through 12, the same procedure was followed under section 12022.53, subdivision (f), so that enhancement terms were imposed under section 12022.53, subdivision (b), but other terms under section 12022.5, subdivision (a)(1) were stayed. The trial court again relied on section 12022.53, subdivision (f) to impose the stay.
Also, as to all 14 counts, the trial court stayed the term for the prison prior, section 667.5, under section 654.
As already explained, the position taken by the People in this appeal has changed on these issues, in light of a then pending case before the Supreme Court, Gonzalez, supra, 2008 Cal. Lexis 6664. That opinion was filed June 2, 2008, and decided the appropriate sentence for a trial court to impose where separate firearm enhancement allegations under section 12022.5 and section 12022.53 are found true for the same crime. Originally, the People in their respondent's brief conceded that the trial court erred in this respect, but in a supplemental brief, they argue that because of the punishment imposed under section 12022.53, subdivision (b), it was proper for the court to stay instead of strike the additional terms imposed for the firearm enhancements. (§§ 12022.3, 12022.5.)
Based on the authority of Gonzalez, supra, 2008 Cal. Lexis 6664, the proper procedure for the trial court was to impose punishment under section 12022.53, subdivision (b) and then, with respect to the additional terms of firearm enhancements under sections 12022.3 and 12022.5, to impose but stay them. We accordingly reject Munoz's claim of sentencing error in this regard, as to the firearm enhancements.
B. Prison Priors; Stay or Strike?
A similar problem is presented by the trial court's stay, pursuant to section 654, of the prison prior terms imposed under section 667.5, subdivision (b) (as to all 14 counts). According to appellant, this was error, because it is not proper to enhance a defendant's sentence both for a prior conviction and for a prison term imposed for the same conviction. This applies to section 667, subdivision (a) enhancements, such as were found true here (as to counts 1-12). Appellant relies on People v. Jones (1993) 5 Cal.4th 1142, 1149, 1152-1153 (Jones II), as standing for the proposition that enhancements under sections 667 and 667.5 will not both apply to the same prior offense, and one should be stricken.
In response, the People contend that the opinion in Jones II, supra, 5 Cal.4th 1142 did not specifically address the problem presented here, in that the court in Jones II did not actually discuss whether striking was the appropriate remedy. (See People v. Lopez (2004) 119 Cal.App.4th 355, 363-364.) The People argue instead that California Rules of Court, rule 4.447 allowed the trial court to stay, and not strike, the enhancements for the prison prior. (See People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.)
We believe that under Jones II, supra, 5 Cal.4th 1142, the proper analysis is to view the facts of prior conviction and prior prison term as similar, "for purposes of determining whether a defendant may be exposed to two enhancements for the same prior offense." (Id. at p. 1149.) As the court in Jones II determined, this approach is required by People v. Prather (1990) 50 Cal.3d 428, 439, which reasoned that a distinction between the facts of prior conviction and prior prison term, in this context, would be hypertechnical, and they should not be treated separately in sentencing. (Jones II, supra, at p. 1149.) The better approach at this time is for this court to modify the judgment to strike the prison priors, with directions to the trial court to prepare an amended abstract of judgment. (See Bracamonte, supra, 106 Cal.App.4th 704, 712-713.)
IV
DENIAL OF MOTION FOR NEW TRIAL
Appellant moved for a new trial on several grounds, mainly claiming that his previous trial counsel provided ineffective assistance when he failed to call certain witnesses, including appellant. Appellant argues that his motion was well taken because his version of the events was not completely presented, and his main witness, Uncle M., was not adequately supported by other possible witnesses in backing up appellant's defenses, mainly alibi. The trial court held a new trial hearing in which these witnesses' testimony was presented. Appellant notes that during deliberations at trial, the jury submitted several questions and requested to have some testimony read back, which he suggests should indicate this was a close case.
To address these arguments, we first outline the testimony that appellant would have liked to present, and then analyze the ineffective assistance claim in light of the appropriate prejudice standard. It is well settled that a criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas).) A defendant must show both that the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. Prejudice exists when it is reasonably probable that but for such deficient assistance the result of the proceeding would have been different. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241 (Fairbank).) Some deference is paid to defense counsel's trial strategy or tactical decision making, which should be evaluated in the context of the available facts. (Id. at p. 1243.)
A. Background
Appellant testified at the new trial hearing that he had told his previous trial attorney, John Fielding, Jr., that he wanted to testify, in particular, about how he was in the Los Angeles area at the time of the incident. Appellant also testified that Uncle M. had earlier owed money for drugs to Jose Garcia, and appellant had previously agreed to remind his uncle of this. Specifically, appellant gave this message to Scott the day before the incident.
At trial, evidence about Uncle M. owing money to others was excluded.
Next, appellant's ex-wife Bernadette E. testified that she could have confirmed that appellant was with her in Rancho Cucamonga at the time of the incident. She thought Uncle M. and Scott were planning to rob Marc. She said that Attorney Fielding, the original trial attorney, told her that he did not want her to testify, in part because just before the incident, she had applied for a restraining order against appellant, on the grounds that he had threatened her and said that he would kill a policeman if confronted by police.
At trial, appellant's brother-in-law, Kevin C., had testified that appellant spent that night at Kevin's home in early December, in Rancho Cucamonga. At the new trial hearing, Kevin's wife, appellant's sister Joanne C., testified that she would confirm this. Joanne admitted that she later visited Marc to discuss the incident, and that she knew Attorney Fielding did not want her to testify because the information about the visit would come out during trial. She denied asking Marc for leniency.
Attorney Fielding testified that he did not want to call Joanna as a witness, because she had visited Marc and made statements that he did not want to come out at trial (e.g., she was sorry for what appellant had done and asked him to ask the court for leniency). Attorney Fielding also did not want to call Jorge S. as a witness to say that appellant was not present during the incident, because appellant had told him Uncle M. was more credible than Jorge, and Jorge did not seem credible. Jorge had told other people earlier that it was appellant who participated in the robbery, and Jorge was a lifelong drug user.
Another proposed witness, Robert S., would have testified that it was his assault weapon, not appellant's. However, Attorney Fielding did not want to put him on the stand, because he believed perjury would occur, and he did not want to be a party to that. Attorney Fielding knew that the person being blamed by the proposed defense witnesses, Robert A., was not able to be a participant in the incident because he was incarcerated at that time. Attorney Fielding never heard of Jose Garcia until the new trial motion.
Attorney Fielding testified that he had discussed with appellant that he had a right to testify, but appellant never told him he was willing to do so. Counsel advised against it due to appellant's criminal history. Appellant never told the trial court he wanted to testify.
In opposition to the new trial motion, the prosecutor called Marc, who was visited by Joanna six months after the incident, when she told him she was sorry for what appellant had done to Marc and Scott, and she asked Marc to seek leniency from the court for her brother. A District Attorney investigator, Norma Dormann, testified she interviewed appellant's ex-wife, Bernadette, who did not tell her whether she gave appellant a ride to Los Angeles the day before the incident. A police detective, Melvin Allen, was told by Jorge that appellant was "more or less the ring leader" in the "robbery and sex acts that occurred" at the incident.
B. Analysis
In rejecting appellant's motion, the trial court noted that some of appellant's proposed witnesses, in giving their testimony at the hearing, appeared to be untruthful, and that in any event, there had been sufficient evidence presented at trial to sustain the verdicts. The court was satisfied that Uncle M., a defense witness, was not credible and in fact was similar to a cartoon character in his version of events, and that the additional witnesses proposed would not have made a difference.
Appellant had the burden to demonstrate the representation provided to him at trial was inadequate, and that a better result would have been obtained if the representation had been different. (Lucas, supra, 12 Cal.4th 415, 436-437.) To apply this standard, courts will take into account that some of the decisions made by defense counsel could have been attributable to legitimate concerns, such as trial strategy or tactical decision making, which should be evaluated in the context of the available facts. (Fairbank, supra, 16 Cal.4th 1223, 1243.) Here, Attorney Fielding was shown to have had 24 years of criminal trial experience, and he had adequate experience to evaluate appellant's proposed alibi defense. He was aware that some of the proposed witnesses might have been subject to impeachment, which would have damaged their credibility, or provided other evidence damaging to appellant. For example, Joanna might have been required to explain why she told Marc she was sorry for what appellant had done, and how she asked for leniency. Jorge had told police that appellant was a ringleader in the incident, so adding his testimony that appellant was not there would not have assisted appellant. If Bernadette testified, information about the restraining order might have put appellant in a bad light, even in light of his admitted prior sex offense.
Even if defense counsel misunderstood that appellant wished to testify, counsel could still have had legitimate reasons for discouraging that. The trial court evaluated the other proposed witnesses as either totally or substantially lacking in credibility, and stated that Attorney Fielding could have reasonably reached that conclusion. The additional testimony would not have affected the evidence already presented, which was overwhelmingly sufficient. The victims identified appellant as the person with the gun who robbed them and forced them to commit sex acts. The other proposed defense evidence would not, in reasonable probability, have led to a different result. The trial court had a legitimate basis to deny the new trial motion.
DISPOSITION
The convictions and judgment are affirmed, as modified, to strike the terms imposed for the prison priors (§§ 667.5, subd. (b)), with directions to the trial court to prepare an amended abstract of judgment and submit it to the Department of Corrections and Rehabilitation; in all other respects, the judgment is affirmed.
WE CONCUR: HALLER, J. McINTYRE, J.