Opinion
F039299.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES ALLEN RUSSELL, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Tiffany S. Shultz, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL HISTORY
On September 14, 2001, an amended information was filed charging Charles Allen Russell (appellant) with the following: In count 1, kidnapping to commit another crime (Pen. Code, § 209, subd. (b)(1)); in count 2, with aggravated sexual assault of a child—oral copulation (§ 269, subd. (a)(4)); in counts 3, 4, and 5, with aggravated sexual assault of a child—sexual penetration by force (§ 269, subd. (a)(5)); in counts 6, 7, 8, and 9, with forcible lewd acts upon a child (& sect; 288, subd. (b)(1)); and in counts 10 and 11, with indecent exposure with a prior conviction for indecent exposure (§ 314, subd. (1)). With respect to counts 6, 7, 8, and 9. it was alleged that appellant substantially increased the risk of harm to the victim by kidnapping her (§ 667.61, subd. (d)(2) and § 667.61, subd. (e)(1)), and it was further alleged as to counts 6, 7, and 8 that appellant inflicted great bodily injury during the commission of these offenses (§ 12022.8 and § 667.61, subd. (e)(1)). It was alleged with respect to all counts that appellant had suffered one prior serious felony conviction (§ 667, subd. (a)(1)) and had served four prior prison terms (§ 667.5, subd. (b)).
A jury found appellant guilty of counts 1 through 9 and 11, and acquitted him of count 10. The kidnapping allegations on counts 6, 7, 8, and 9 and the great bodily injury allegations on counts 6, 7, and 8 were found true. The prior serious felony conviction allegation and the prior prison term allegations were found true in a bifurcated bench trial.
Appellant was sentenced to an aggregate term of 82 years to life in prison.
FACTUAL HISTORY
The sexual attack in the alley
At approximately 11:30 a.m. on January 10, 2000, Ong X. took her four-year-old daughter, P., with her to Winchell Elementary School in Fresno to pick up P.s older brother, N. Ong parked her car in front of the school grounds on Eighth Street. She left P. near a fence outside the school to watch a soccer game while she went to find N. When Ong returned five minutes later, P. was gone. Ong looked for P. but could not find her. When Ong returned to her car, she saw P. running from the north side of the street toward her and that Ps pants were wet. P. cried loudly that "somebody stole me."
P. had been wearing a pair of black and white checkered pants, a white T-shirt, and a gray sweatshirt. Ong took P.s pants off and noticed there was blood draining from her anus. She took her children home and got a relative, Pakou, who could speak English. P. changed her pants at home and left them there. Ong saw "lots of blood and kind of sticky" while P. cleaned herself. P. then put on a pair of blue pants.
Ong, Pakou, and P. returned to the elementary school. Through Pakou, Ong told the principal what had happened. The principal immediately called the police. P. told an officer, with Pakou serving as translator, that the man who attacked her was a short bearded Hispanic man wearing green pants. Ong later explained there is no Hmong word for moustache or beard, but rather one for facial hair. In addition, there is no Hmong word for Hispanic or Mexican, and Ong doubted P. knew the word Hispanic.
P. told Officer Chang that she had been playing and that it happened in the alley next to the school. A two-door red car pulled up and a man came out, grabbed her by her shirt, and forced her into the back of the car. While inside, the man pulled down his pants and forced his penis into her mouth and moved it around. P. told Officer Chang the man smelled like urine and that he put his finger in her "pee hole." P. described the mans penis as "being fat." P. told Officer Chang the man was a short bearded Mexican, using a Hmong abbreviation, "Mev," meaning Mexican. She gestured to her face to indicate the man had a beard. Officer Chang did not ask P. if the man had a moustache.
While she was in the ambulance, the officers asked P. to look at a short bearded Mexican man and a red car to see if she could identify them. Ong recalled that P. recognized the car but that the man "absolutely was not" the man who assaulted her. After looking at the man, P. did not think he was the perpetrator because he did not have hair across his upper lip, motioning with her hand to indicate the upper lip. Officer Chang also remembered that P. looked out the ambulance window at the suspect and stated, "`No, thats not him," referring to Pedro Elias. Ong recalled that P. told the officer the perpetrator had a handlebar moustache and reddish-colored hair.
Pediatric nurse practitioner Sandra Knudson examined P. at the hospital. She observed that P. was calm and cooperative, but that could have been because she was in shock. When P. first arrived, Knudson spoke with Officer Jennifer Walzberg and Ong about what had happened. Ong told Knudson she had placed P. in the bathtub, washed her, dried her with toilet paper, and put fresh pants on her.
P.s clothing was placed in a sexual assault kit at the hospital. The checkered pants P. had been wearing were brought to the hospital by Officer Walzberg and given to Knudson. They were placed in an evidence bag as part of the sexual assault kit with the rest of P.s clothing.
Knudson found that P. had bruising consistent with being choked and assaulted and discovered significant trauma in P.s genital area consistent with a recent penetrating vaginal injury. Ps other injuries are detailed later.
Knudson did not see any trauma to P.s anus, such as redness, bruising, tearing, fecal matter, or bleeding, which would suggest anal penetration. However, she explained that such findings do not rule out the possibility of anal molestation. She indicated that she had done examinations where she found no injuries to the anus, even though this type of touching had been reported by the victims. Knudson did not detect any semen or pubic hair on P.s body.
The indecent exposure incidents
On February 4, 2000, two Asian girls, V. and B., saw a White male masturbating in a car parked outside Hidalgo Elementary School, which is a couple of miles from Winchell Elementary School. Four days later, another Asian girl, M., saw a White male pull his car over to the side of the road as she walked to Hidalgo Elementary School. As she walked past the car, the man motioned for her to come over. M. saw the man was masturbating.
On February 21, 2000, Detective Byers contacted B. because B. had seen the license plate of the suspects vehicle. After determining B. had transposed two of the letters, Byers ran the information through the Department of Motor Vehicles and learned the vehicle was registered to appellant.
Byers then compiled two photographic lineups containing pictures of appellant. She showed the first lineup to V. and B., but neither was able to identify a suspect. Byers also showed the first lineup to M. who identified appellant as the man she had seen. Later at trial, M. said she did not believe she had picked the right person because she was confused.
The following morning, Byers and other officers followed appellant as he got into his burgundy-colored car and drove through the area of Hidalgo Elementary School and then to an appointment with his parole officer. It was a school day and there were children present. At one point, appellant pulled into the Hidalgo Elementary School parking lot.
When appellant arrived at the parole office, he was arrested. The interior of his car was very messy and there was trash on the floor. Officers took a white T-shirt from the car, which was damp. At first appellant claimed he used the shirt to clean up a liquid spilled in the car. He then claimed he had picked up a prostitute the day before and used the T-shirt to wipe his genitals after she orally copulated him.
In March 2000, Byers showed the second lineup containing appellants photograph to P. and she identified appellant as the man who had sexually assaulted her.
Evidence presented at trial
At trial, P. was six years old and testified via closed-circuit television from another room in the courthouse. P. stated she had been watching some people play ball when a bad man grabbed her. The man grabbed her shirt and arm and took her to a red car behind a house. He bent her over and put her mouth on his penis. P. also testified the man "put something in my butt." When asked if the man touched her anywhere else, P. first said, no, but then said the man touched her on her back.
P. further testified she was on the car seat on her stomach and could not see the man. P. explained that the man hurt "my butt" and where she went pee. When asked a second time if the man hurt her where she went pee, she said no. P. said the man hurt her more than once with both his hands. He put her face down and hurt her on her bottom. She stated that while she was face down, the man put something in her vagina.
P. was brought into the courtroom and asked to identify her assailant. She was asked, "Is the bad man here?" She replied, "Yeah." But when she was asked, do you see him, she shook her head no. P. returned to the room outside the courtroom and said, "There was someone that looked like him, but I didnt know if it was him or not." The prosecutor asked her if, when she went into the courtroom, she saw someone that looked like the bad man. She said she did. P. was then brought back into the courtroom and identified appellant as her assailant.
P. testified that she remembered telling the policeman on the day of the assault that the bad man had a beard, but not a moustache. P. was shown pictures of appellants car and also Pedro Elias car (a car stopped the day of the incident). P. described appellants car as purple and Elias car as red. P. was shown a photograph of Elias and asked if he was the bad man. She answered no.
During cross-examination, P. was asked if anyone had helped her make the identification. P. replied, "Yeah," but the court did not believe she understood the question and asked the interpreter to repeat it. P. then testified, "I knew who he was all by myself."
DNA testing was done by the Department of Justice. On January 19, 2000, criminalist Scott Lewis received the sexual assault kit containing P.s checkered pants, T-shirt, blue pants, and sweatshirt. Lewis found stains on the T-shirt and both pairs of pants. He cut out three stains, including one from the hemline of the T-shirt, and placed them in a kit designed for long-term storage.
On March 29, 2000, criminalist Edwin Scruggs received a semen-stained T-shirt and a pair of mens underwear collected from appellants car and person when he was arrested. DNA typing was done on the semen stain. On or about April 26, 2000, using Polymerase Chain Reaction or "PCR" DNA testing, Scruggs compared the semen stains from appellants T-shirt to a sample of appellants blood. Analysis showed that the semen stain and appellants blood were identical for the six loci on the sixth chromosome.
Scruggs also retrieved the kit prepared by Lewis and extracted the semen found on P.s T-shirt and DNA typed it. Scruggs compared the semen on P.s shirt to appellants blood sample and found they were identical or completely congruent.
Criminalist Kenneth Penner analyzed the semen stains from P.s T-shirt and appellants blood sample. Penner used Short Tandem Repeat or "STR" DNA typing. Penner explained that STR is more discriminating than PCR analysis because it looks at the 23 chromosomes collectively, analyzing far more possible alleles, at any possible locus. He compared nine loci from the semen on P.s T-shirt and the sample of appellants blood and found that at each loci the samples were indistinguishable. Penner opined that the profile present in the T-shirt and in the sample of appellants blood is found in approximately one in one trillion of the population.
Defense
Pedro Elias testified that he was detained on January 10, 2000, by police officers. He was certain he had not been in the area of Winchell Elementary School that morning.
J. was in the third grade at Winchell Elementary School on January 10, 2000. J. saw the man that took the little girl into a car that was red like the photograph of Elias car. At trial, J. identified Elias as the man in the red car, although he admitted that the day after the incident he told the police that he could not identify him.
J.s friend, J.R., testified that he attended Winchell Elementary school at the time of the assault and told the police that the perpetrator was a Mexican man with a beard and a moustache. J.R. said the mans car was red and he had seen him outside the courtroom a few moments earlier (referring to Elias).
Officer Walzberg testified that she was the first officer to arrive after the assault. P.s initial description of her assailant, via Officer Changs translation, was that the suspect was a short, bearded Hispanic man driving a two-door red car. Walzberg showed P. a suspect (Elias) and a car. P. was not certain the suspect was the man who had assaulted her, but she was sure the car was the mans car. On cross-examination, Walzberg testified P. would not communicate with her directly and appeared to be in shock.
Detective Byers testified that she arrested appellant on February 22, 2000, and submitted for testing a T-shirt found in his car during the arrest. Byers knew that appellant was a section 290 registrant and the suspect in two indecent exposure cases.
Rebuttal
Detective Byers stated that she spoke with Detective Mart, the officer who arrested Elias on January 10, 2000. It was Marts opinion that Elias was not a suspect because no blood was found on his penis or his underwear. Byers agreed that Elias was not the perpetrator because he had no prior sex offenses and because P. did not identify him as the perpetrator.
Byers interviewed appellant on the day of his arrest. He explained that he had been in the vicinity of the school because he had been paged to come to that location to repair a vehicle.
DISCUSSION
I. Denial of the Marsden motion
Appellant contends the court abused its discretion in denying his motion to relieve appointed counsel and, as a result, his right to counsel under the Sixth Amendment was violated.
Background
Several months before trial, appellant made a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.) In a closed court hearing, appellant stated counsel had only had his case for three months and was not prepared. His counsel had not talked to all of the witnesses and had not obtained DNA evidence. In particular, appellant noted that semen found on two pairs of P.s pants was never DNA tested.
The court asked counsel about the DNA testing. Counsel explained that P. said there was no genital penetration. Swatches of cloth had been taken from her T-shirt and two pairs of pants. However, the lab reports showed that testing for the presence of sperm had not been done on the pants because they were soaked with urine and therefore, not easily testable. In addition, the semen from P.s T-shirt matched appellants DNA.
Counsel stated that his theory of the case was that the Fresno Police Department had mishandled the evidence, and the semen found on P.s shirt had transferred from another T-shirt with wet semen on it found in appellants car. Counsel acknowledged that he and appellant disagreed on how to handle the testing of the pants. Counsel believed the absence of testing on the swatches from P.s pants suggested reasonable doubt while appellant believed it was exculpatory. The court asked, "So its a matter of trial tactics and strategy?" Counsel replied, "Right."In denying appellants Marsden motion, the court stated:
"I have heard you and Ive heard your attorney... You have your concerns and hes responded to them and I respect your differences, but it appears to me that hes right and youre wrong at this time that there is no basis to grant a Marsden motion, but I invite you to come back during the course of the trial once you look at your notes and theres other issues to bring up and that you convince me that there is some merit to your issues. But as of now I dont find that theres any merit to your issue, and as a matter of tactic and strategy its the attorney who makes those decisions. The only way youre entitled to make those decisions is if youre representing yourself, and Ive not heard that you want to represent yourself nor would I recommend it to you. [Defense counsel] has worked on this case. He is up to speed on it. Im satisfied of that. Hes ready to try the case."
Days before trial, appellant made a second Marsden motion, arguing that counsel should be replaced because he still refused to have P.s pants tested for DNA. Appellant reiterated that the DNA on the pants did not belong to him. Defense counsel again refused to do so explaining that the charges of oral copulation and digital penetration did not include a charge alleging penile contact with P.s genitals. Defense counsel again explained that his defense theory was based on the improper handling of evidence by the police, coupled with a shaky identification of appellant by P. If the pants were tested and appellants DNA was present, this evidence would be very damaging. Further, even if another persons DNA was detected, the prosecution could argue there were two assailants instead of one.
Counsel told the court he thought appellant might be trying to delay the trial noting that appellant had lied to him about his prior record. He advised the court that appellant had told a preposterous story to an employee in defense counsels office, explaining that he had been masturbating outside of the school on the day P. was assaulted. Appellant opined that possibly some of his ejaculate flew out of his open car window and hit P. and someone else took her into the alley and assaulted her.
Defense counsel told the court he believed that a single, narrow defense theory was more effective than a shotgun approach. Defense counsel acknowledged that he and appellant had problems communicating based on a difference of opinion regarding trial strategy.In denying appellants second Marsden motion, the court stated:
"... Im satisfied your attorney is well prepared to defend you in this case. He has a very [good] theory in the case. Its a rational one. It may work. It may not work. The law says that ... its for the attorney to decide tactics, and I cant say theres any fault in the way that hes prepared this case for ... your defense." Analysis
"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance." (People v. Crandell (1988) 46 Cal.3d 833, 854, 251 Cal. Rptr. 227, 760 P.2d 423.) "The defendant ... cannot rest upon mere failure to get along with or have confidence in counsel." (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
Nothing in the record suggests the court deprived appellant of the opportunity to speak out regarding his dissatisfaction with trial counsel. To the contrary, the court repeatedly gave appellant an opportunity to relate his grievances. Further, the court required counsel to respond to appellants concerns.
When the court has conducted an adequate Marsden hearing and denied the request for substitute counsel, we review the ruling for an abuse of discretion. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1, 275 Cal. Rptr. 191, 800 P.2d 547.) We begin by observing that a criminal defense attorney is obligated to investigate carefully all defenses that may be available to the accused. However, the attorney is not required to comply with the clients wishes in matters of trial tactics. (People v. Turner (1992) 7 Cal.App.4th 1214, 1222.) These determinations are within counsels control and any disagreement regarding tactics does not compel the appointment of another attorney. Only if the disagreement signals a breakdown of such magnitude "`as to jeopardize the defendants right to effective assistance of counsel" is substitute counsel required. (People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal. Rptr. 208, 471 P.2d 1008.)
Here, it was clear appellant did not agree with tactical decisions being made by defense counsel. However, that is not enough to require substitution of counsel. We conclude the court did not abuse its discretion in denying appellants Marsden motions.
II. Admissibility of testimony under Evidence Code section 1360
Appellant contends the court committed reversible error by allowing Detective Byers to testify pursuant to Evidence Code section 1360 about statements P. made to her the day after the incident.
Evidence Code section 1360 is a child-victim exception to the hearsay rule relevant to certain types of child abuse and neglect offenses. (In re Cindy L. (1997) 17 Cal.4th 15, 29, 947 P.2d 1340.) Enacted in 1995, section 1360 allows the trial court in a criminal prosecution to admit a childs hearsay statement describing an act of abuse committed upon that child if three conditions are met: (1) the court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability (Evid. Code, § 1360, subd. (a)(2)); (2) either the child testifies or there must be evidence of child sexual abuse that corroborates the statement made by the child (Evid. Code, § 1360, subd. (a)(3)); and (3) the proponent of the statement gives advance notice to the adverse party that it intends to use the statement at trial. (Evid. Code, § 1360, subd. (b).)
Appellant contends the court should have excluded the evidence because the content and circumstances of the statements did not provide sufficient indications of reliability.
Hearsay evidence is evidence of a statement made by someone other than a witness while testifying at the hearing that is offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b); People v. Smith (1989) 214 Cal. App. 3d 904, 916, 263 Cal. Rptr. 155.) Further, we apply an abuse-of-discretion standard to a ruling by the court on the admissibility of evidence, including when admission turns on the question of hearsay. (People v. Waidla (2000) 22 Cal.4th 690,724.)
The United States Supreme Court and the California Supreme Court have held that the reliability of a childs out-of-court statements in a sexual abuse case is determined by the following nonexclusive list of factors: (1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; and (4) lack of a motive to fabricate. (Idaho v. Wright (1990) 497 U.S. 805, 821-822, 111 L. Ed. 2d 638, 110 S. Ct. 3139; In re Cindy L., supra, 17 Cal.4th at pp. 29-30.)
In People v. Brodit (1998) 61 Cal.App.4th 1312, a defendant convicted of sexually abusing a child challenged the admission of hearsay statements the victim had made to her aunt, a social worker, and a detective. (Id. at pp. 1317, 1328-1329.) The defendant claimed the statements lacked trustworthiness. (Id. at p. 1329.) The Brodit court disagreed, reasoning that (1) although the statements were not spontaneous within the strict meaning of the word, they were consistently repeated with diminutive discrepancies to several adults; (2) the victims mental state provided no reason to believe the statements were unreliable; (3) the victims description of sexual acts indicated more sexual knowledge than other children her age; and (4) the victim had no reason to falsely accuse the defendant. (Id. at p. 1330.)
We conclude the court did not abuse its discretion when it found the hearsay statements P. made to Detective Byers were reliable. Although her statements were made the day after the assault, they were similar to comments she made to her mother and police officers on the day of the assault. In addition, P. used age-appropriate language to describe sexual acts which showed familiarity with sexual matters beyond her age. Finally, P. had no motive to fabricate accusations against appellant since he was not a suspect until approximately one month later. Consequently, the court did not abuse its discretion when it found P.s hearsay statements to be admissible under section 1360. (In re Cindy L., supra, 17 Cal.4th at pp. 34-36.)
III. Sufficiency of the evidence regarding anal penetration
Appellant was charged with three counts of sexual penetration as proscribed by section 269, subdivision (a)(5), and section 289, subdivision (a). The jury found appellant guilty of all three charges. Appellant now argues there is insufficient evidence to support the finding of penile or digital anal penetration of P. and, therefore, at least one of the charges should be reversed.
When sufficiency of the evidence is challenged on appeal, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.) If the circumstances reasonably justify the jurys findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal. Rptr. 529, 457 P.2d 321.) Further, it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal. Rptr. 228, 721 P.2d 110.) Thus, if the verdict is supported by substantial evidence, we must give deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. (Id. at pp. 303-304.)
Section 269, subdivision (a)(5), provides that "any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child: [P] ... [P] (5) A violation of subdivision (a) of Section 289." Section 289, subdivision (a), provides, in turn, that a person is guilty of this offense when he "causes the penetration, however slight, of [another persons] genital or anal openings ...." The "`foreign object, substance, instrument, or device" can be "any part of the body, except a sexual organ." (§ 289, subd. (k).) A finger is a foreign object within the meaning of section 289. (People v. Keeney (1994) 24 Cal.App.4th 886, 888-889.)
Here, there is sufficient evidence to find appellant penetrated P.s anus. Immediately after the assault, P. told her mother the "bad person" penetrated her anus. Ong took P.s pants off and noticed blood draining from her anus. The day after the assault, when P. was interviewed by Detective Byers, she told her the man pulled down her pants and put his finger in her "pee hole" and her "caca." At trial, P. testified the man put something "in my butt." She explained that the man hurt "her butt" and "where I go pee." P. also testified the man hurt her more than once with his hands. She also said the man put her face down and hurt her "on my bottom." Nurse Knudson, who examined P., saw a laceration on P.s perineum, the area between the vagina and anus, that extended to within a half centimeter of the anal opening. Although she did not see any visible trauma to the anus, she explained that normal examination findings do not rule out the possibility of anal molestation. As explained by Knudson, "It takes a relatively large object to stretch the anal sphincter greater than its designed to stretch."
We reject appellants claim of insufficiency of the evidence.
IV. Sentencing under section 667.6, subdivision (d)
The trial court imposed a 25-years-to-life term on count 6 and consecutive 15-years-to-life terms on counts 2, 3, and 4, pursuant to section 667.6, subdivision (d). Count 6 refers to a charge of vaginal penetration, as the count had a related great bodily injury enhancement. Count 2 charged an act of oral copulation. Therefore, counts 3 and 4 each referred to an act of vaginal or anal penetration. Appellant contends the court improperly sentenced appellant under section 667.6, subdivision (d), as the evidence did not prove appellant committed each of these four crimes on separate occasions.
Section 667.6, subdivision (d), mandates full consecutive sentences for certain sex offenses committed against the same victim on separate occasions. The statute states:
"(d) [P] ... [P] In determining whether crimes against a single victim were committed on separate occasions ..., the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).)
A number of Courts of Appeal have analyzed the standard established by section 667.6, subdivision (d), to determine when sexual acts occur on separate occasions. We weighed in on this issue in People v. Irvin (1996) 43 Cal.App.4th 1063, 1071, where we recognized that "a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter." In doing so, we recognized that a sexual assault consisting of multiple types of sex acts is not motivated by sexual pleasure but, instead, to exert power and degrade the victim.
Likewise, in People v. Plaza (1995) 41 Cal.App.4th 377, 385, the court affirmed the trial courts finding that sexual assaults occurred on separate occasions, although all of the acts took place in the victims apartment, with no break in the defendants control over the victim. By contrast, in People v. Pena (1992) 7 Cal.App.4th 1294, 1316, the defendants change of positions between different sexual acts was insufficient by itself to provide him with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds. As we observed in Irvin, thePena decision is of little assistance since it merely upheld the trial courts findings on the issue of separate occasions noting an appellate court is not at liberty to overturn a trial courts factual findings. (People v. Irvin, supra, 43 Cal.App.4th 1063, 1070.)
With these principles in mind, we turn to appellants situation. Prior to sentencing, the prosecutor argued that appellant should be sentenced under section 667.6, subdivision (d). The court agreed, stating:"Ive had numerous sexual abuse cases tried in front of me and some involving adults, a few involving children, but I have to tell you that the acts of this defendant upon this child were the most vile Ive ever known of. The injuries to the child are serious, although its true that there was no evidence found that would indicate specifically how the injury occurred. [P] The defendant, I am absolutely certain, put his penis in her anus and thats why she suffered the tear injuries that she did. [P] There were four separate acts. His motivation was to satisfy—to somehow satisfy himself sexually. Thats his history. And rather than plead out, as he should have, he decided to take this case to trial, Im assuming, in hopes that this child would not be able to identify him and that there might be some problem and that he might walk. It didnt happen, and so here he is. [P] There are four separate acts and the Court is going to sentence him consecutively...."
In Irvin, the trial court concluded that all 20 sex offense acts (including numerous digital penetrations) must have occurred on separate occasions. We determined that an overall statement of the courts general impression of the evidence was insufficient and remanded the matter for a variety of reasons. One of these was to enable the trial court to make specific factual findings on whether the sex offenses were committed on separate occasions. (People v. Irvin, supra, 43 Cal.App.4th at p. 1072.) Here, the court concluded there were four separate acts.
A review of the sentence imposed under section 667.6, subdivision (d), is substantially similar to a review of the trial courts decision under section 654. Section 654 is mandatory, but factual determinations by the trial court, including implicit determinations, will be upheld on appeal if supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730-731, 919 P.2d 640.) Section 667.6, subdivision (d), provides that the court is without discretion but must impose full, separate, and consecutive terms "if the crimes involve separate victims or involve the same victim on separate occasions." (& sect; 667.6, subd. (d).) Once the trial judge resolves the issue of "separate occasions," an appellate court is "`not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection." (People v. Pena, supra, 7 Cal.App.4th at pp. 1314; People v. Corona (1988) 206 Cal. App. 3d 13, 18, fn. 2, 253 Cal. Rptr. 327.)
The evidence shows appellant grabbed P. and took her into a car parked in an alley. Appellant pulled down his pants. He put his finger in her vagina and her anus. Appellant then grabbed P. by the back of the neck, bent her over, pulled her head down and put his penis in her mouth. Appellant moved his penis around in P.s mouth. He then turned P. so that she was facing away from him, with her face down in the passenger seat, and again put his finger in her vagina.
Although the acts occurred over the course of minutes, appellant changed victims position several times and changed three times the parts of her body he was sexually penetrating. Between the second and third penetrations, appellant changed P.s position and forced her to orally copulate him. The defendant had a reasonable opportunity to reflect upon his actions between these acts and nevertheless resumed his sexually assaultive behavior. (People v. Irvin, supra, 43 Cal.App.4th at pp. 1070-1071; § 667.6, subd. (d).) After a review of the record, we conclude there was substantial evidence to find the acts committed by appellant were committed on separate occasions for purposes of section 667.6, subdivision (d).
DISPOSITION
The judgment of conviction is affirmed.
We concur: Harris, Acting P.J., Levy, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise stated.