Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA059682, Elden S. Fox, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Jovanny Theus was convicted of second degree robbery, attempted first degree robbery, three counts of kidnapping, and 10 counts of forcible sex crimes. The jury also found true aggravated kidnapping allegations, and prior serious felony allegations were found true following a court trial. He appeals from the judgment of conviction, claiming the court erred in admitting evidence of a gun, knife, and magazine cartridge; that he was denied the right to confrontation as to a witness’s statement to police; and that an officer was improperly permitted to testify that he believed what the victim told him. Appellant also raises several sentencing errors. We remand the case for resentencing, and in all other respects, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
At around 7:00 p.m. on February 21, 2006, Emily R. attempted to park in her friend Elinor’s assigned parking space, across the street from Elinor’s apartment in West Hollywood. Emily drove over the curb, the bottom of her car hit the ground, and her car became stuck, with one wheel hanging over the curb. Emily called Elinor and told her about the problem. Elinor and her boyfriend Matt went out to the car and waited with Emily while she called for a tow truck. The tow truck driver looked at the problem and left to get additional equipment. He said he would call Emily when he returned. Emily, Elinor and Matt walked to a nearby restaurant where they ordered food and drinks.
Soon after they were served, Emily received a call from the tow truck driver. She told Elinor and Matt she would be right back, and walked to her car. The tow truck driver dislodged Emily’s car and departed. Emily drove her car to a space on the street. During that time, she spoke to Elinor on the phone and told her she would return to the restaurant. She never did.
As Emily was walking from her car toward the restaurant, she heard fast footsteps and male voices behind her. She was grabbed from behind with one hand over her mouth and another one around her waist. A voice said, “‘Okay. This is a robbery. We just want your money. We’re not going to hurt you.’” The man who was holding Emily, later identified as Denson Henderson, dragged her across the street to a darker area. At that point, Emily noticed a second man, later identified as appellant, who took her purse and rummaged through it. The men asked her how much money she had in the bank, and she told them she did not have very much money. They took her back to her car. Appellant unlocked the car with her keys. Henderson put her in the back seat and got in next to her. Appellant got into the driver’s seat. The men asked Emily about each of her credit cards. Then they told her they were going to take her to a bank.
Henderson forced Emily’s head into his lap as appellant drove the car. She saw a knife in Henderson’s right hand. The car stopped on the street near a Bank of America. Henderson dragged Emily out of the car and around the building to the ATM machines. He handed her debit card to her and told her to withdraw $600. She tried, but was not successful. Then he told her to “‘[t]ry 500.’” Again she tried, but did not succeed. He had her try to withdraw $400, and that failed. Finally he said, “‘Let’s just go. I’m going to take you to another bank somewhere else. Let’s just go.’” Henderson started to drag Emily back toward the car. She grabbed a bench to try to stop him, and pretended to have an asthma attack. When he stopped, she tried to get away, but Henderson grabbed her again, shook her very hard, and continued dragging her to the car.
Emily was pushed back into the car, and Henderson told appellant that she had “‘tried something funny.’” According to Emily, “He said something to that effect. ‘If she does it again, show her the pistol and shoot her.’” Appellant backed up and hit the car behind them. Henderson yelled at him, then forced Emily’s head back into his lap. The car began moving, and Henderson forced Emily to orally copulate him. Then he forced her to change positions and he stuck his fingers inside her vagina. Emily noticed Henderson was wearing a hooded sweatshirt that said, “Phat Farm.” He forced her to orally copulate him again.
At some point, the car stopped. Henderson covered Emily’s head with something and led her out of the car into a room. He pushed her onto a bed, and uncovered her head. He told Emily to take off all her clothes, that they would be back for her, and “‘Because you can’t pay us in money, we want you to pay us in other ways.’” Emily did as she was told, the two men returned, and she was forced to perform numerous sex acts on them. After awhile, the men left the room and returned with a disposable camera. One of them put masking tape over Emily’s eyes and she was forced into various positions while Henderson took photographs of her. During this time, one of the men inserted a heavy, cone-shaped object into her vagina. Then that was removed and something that felt like a soda or beer can was inserted part way into her vagina, and a picture was taken.
One of the men handed Emily a piece of paper and a pencil, and told her to write down her full name, social security number, address, and PIN number for her bank. She did, and then she was left alone in the room with appellant. The film “Titanic” was playing on the video recorder at that time. While she was alone with appellant, he talked to her about his life, and then forced her to engage in oral copulation and sexual intercourse. Emily did not try to escape because she heard voices outside the door and did not know who was out there.
Just after midnight, a woman later identified as Henderson’s girlfriend, Nakeya Whitman, used Emily’s debit card and her PIN number at a Citibank ATM in Inglewood. She placed an empty deposit envelope in the ATM and purportedly deposited $2,000 into the account. She then attempted to withdraw money from Emily’s account. A few minutes later, Whitman unsuccessfully attempted to withdraw funds from Emily’s bank account at a Bank of America ATM at 57th Street and Crenshaw Avenue. Both transactions were captured on security videos.
At some point, Henderson returned to the room holding a gun. He brought it over to Emily and said, “‘This is the gun that we would use on you’ or ‘would have used on you if you tried anything, you tried to get away again’ or something to that effect.”
Henderson told Emily they owed someone a significant amount of money. He also said that someone who claimed to know her said she had “‘a great deal of money, and we think that you’re lying to us about how much money you actually have.’” Emily said she did not have money. Appellant said he knew someone who would pay money to have her as a “‘slave of prostitution’” and that another option would be for her to get money from someone she knew.
Appellant then indicated he did not want to keep her against her will any longer, he wanted her to stay with them by choice and that he wanted her to be his girlfriend. Emily believed he was ready to let her go and get the money for them. She suggested it would be best if they released her back to her family. She promised she would find the money for them and that she would not tell the police.
Henderson handed Emily her cell phone and told her to call someone. She was warned not to let on that she had been kidnapped or assaulted. She called her sister, told her she had gambled and lost a lot of money at a casino in Sherman Oaks, and that she needed $6,000. She tried to communicate that she was actually in much more trouble than that. A deputy sheriff got on the telephone on her sister’s end, and Emily asked him for $6,000 to get her out of her problem. Henderson took the phone away from Emily and ended the call. The men continued to press Emily for money. She called her mother, but there was no answer. She told the men she would not be able to get money until the banks opened at 9:00 a.m.
Henderson told Emily if they released her, they would keep her telephone and she would have to call every two hours. He warned that someone would follow her to make sure she did not go to the police, and reminded her that they knew where she lived. He also said he would make sure she was killed if she did not come up with the money and went to the police. Henderson said he would have to consult with someone else to “‘see what he thinks about this, the situation that we’re in.’” He left the room, and Emily begged appellant to let her go. Appellant told her he would make sure she got out alive, but also told her Henderson is crazy and would easily shoot her and appellant.
Henderson returned, and appellant left the room. Henderson forced Emily to orally copulate him again. Then he grabbed her and put her into the front passenger seat of her car, and put her head down on the console between the seats. Appellant was in the driver’s seat. Henderson left, and appellant began driving. Emily heard her cell phone ring. Appellant told her to answer it, and instructed her to tell whoever it was that she was on her way home. Emily answered a call from her friend, and then one from her sister. Her sister told her to go to Santa Monica and San Vicente.
Appellant drove Emily to an entrance to the 405 Freeway. He asked her if she would be able to find her way home from there. She said yes. He took her face in his hands, kissed her and said goodbye. She thanked him for letting her go. Appellant got out of the car, Emily moved over to the driver’s side, locked the doors, and drove off. She got on and off the freeway several times, hoping that if anyone was following her, she would lose them.
Eventually Emily arrived at a 7-Eleven store at Santa Monica and San Vicente. She told some workers outside the store that she had been kidnapped and raped and needed help. She was led inside where she used the telephone to call her sister.
A police officer picked Emily up and brought her to the police station. Her sister and her friend Elinor were there. Emily was interviewed by detectives, then taken to a rape treatment center, where she was interviewed and examined. DNA recovered from Emily’s genitalia matched appellant’s profile. DNA recovered from Emily’s tank top matched Henderson’s profile.
On March 5, 2006, Los Angeles County Sherriff’s Deputies stopped a vehicle driven by Henderson in West Hollywood. Appellant and two other men were passengers in the vehicle. During a search of the vehicle, deputies found a Tech-9 submachine gun inside the air filter box in the engine compartment. The magazine had bullets inside, but was not inserted inside the gun.
On March 16, 2006, Emily was shown photographic six-packs from which she identified pictures of Henderson and appellant. Two days later, a search was conducted of a house and detached garage converted to living quarters on West 53rd Street. A videotape of “Titanic” and a “Phat Farm” sweatshirt were recovered. Documents belonging to Nakeya Whitman and a letter addressed to Henderson, in care of Whitman, were found in the house.
Sheriff’s deputies then went to Whitman’s house. She answered the door, and Detective John Hanson recognized her as the person in surveillance videos from two ATM locations on the night of Emily’s abduction. Whitman was asked if any of Henderson’s belongings were in her residence. She directed police to a black nylon jacket with a small knife in the pocket, an AK-47 magazine with several live rounds, a red jacket with a fur collar similar to one seen in the ATM surveillance videos, red Air Jordan tennis shoes, and some disposable cameras. The detective also found a copy of the Beverly Press dated March 9, 2006. The newspaper contained two composite sketches of Emily’s captors. Whitman was arrested.
Appellant waived his rights and was questioned on March 18, 2006 at the sheriff’s station. He denied knowing anything about the victim or the crimes, and claimed he was in Belize at the time of the incident. He admitted Henderson was his best friend. Just before his arraignment a few days later, appellant saw Detective Hanson and insisted on talking to him. Appellant admitted participating in Emily’s abduction. He claimed it started as a purse snatching, that Henderson changed plans, and that he went along because he was afraid of Henderson. He denied participating in the sexual assaults.
Appellant was charged with one count of second degree robbery, one count of attempted first degree robbery, one count of kidnapping to commit carjacking, one count of kidnapping to commit robbery, one count of kidnapping to commit a sex crime, three counts of forcible rape in concert, three counts of forcible oral copulation in concert, two counts of forcible sodomy in concert, and two counts of forcible sexual penetration in concert. Aggravated kidnapping allegations were attached to all forcible sex crime counts, and one prior felony strike and one prior serious felony conviction also were alleged. Henderson faced similar charges. The men were tried together, to separate juries. They were found guilty as charged, and the special allegations were found to be true. Appellant filed a timely appeal from the judgment of conviction. Henderson is not a party to this appeal.
DISCUSSION
I
Appellant claims the court committed prejudicial error in admitting into evidence a gun seized from the vehicle Henderson was driving at the time he and Henderson were arrested. We find no error.
At trial, Emily testified that at some point while she was being held hostage, Henderson returned to the room holding a gun. She “couldn’t identify what type of gun it was. It wasn’t a standard pistol. “Some sort of semiautomatic. Very large. Not a rifle. More metallic looking in color.” She admitted she did not know much about guns, but thought this gun was a semiautomatic because there was a clip that could be removed from the gun. Emily asked Henderson to take the clip out, and he did. Shortly thereafter, he put the clip back in. Emily thought the clip was separate from the handle. Asked to show the approximate size of the gun, Emily indicated with her hands about 12 to 14 inches. Asked the size of the clip, Emily indicated between eight and 10 inches.
Later in the trial, at a hearing outside the presence of the juries, the prosecutor offered to present evidence in the form of photographs of the gun which was seized from the vehicle appellant and Henderson were in at the time of their arrest. Henderson’s counsel and appellant’s counsel objected on relevancy grounds because the photographs had not been shown to the victim and she had not identified that particular firearm.
The court asked the prosecutor why she had not shown the gun to the victim. The prosecutor explained that if she had shown the photograph to the victim who identified it as Henderson’s gun, then the defense could argue that she only said yes because it was shown to her. Instead, the prosecutor believed the fact that the victim’s description of the gun was untainted made the photograph more corroborative of the victim’s testimony. The court was unconvinced by this explanation, since Emily could have testified about the gun and then been shown the photograph.
After carefully reviewing Emily’s testimony about the gun, and viewing the photographs, which showed “the uniqueness of the weapon,” the court concluded the probative value of the photographs outweighed any prejudicial effect. The court found the photographs relevant, and explained: “I think the description is sufficient and the nexus of the firearm, defendant being the occupant and driver of the vehicle, warrants the court allowing this evidence.”
“An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection. [Citation.]” (People v. Cox (2003) 30 Cal.4th 916, 955, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Under that standard, we find no abuse of discretion in the admission of the photographs of the gun.
In People v. Riser (1956) 47 Cal.2d 566, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649, and People v. Chapman (1959) 52 Cal.2d 95, 98, the Supreme Court explained: “When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession....” (Id. at p. 577.) This same rationale was applied in People v. Cox, supra, 30 Cal.4th 916, 956. In that case, it was unknown how the three victims were killed. The prosecutor argued that the evidence pointed to stabbing as the cause of death, but there also was a reasonable possibility that one or more of the victims had been shot. For that reason, the court held the three guns found during the search of defendant’s car were sufficiently connected to the crimes to merit admission into evidence. (Id. at pp. 955-956.)
In this case, the court found that the firearm discovered in the air filter compartment of the vehicle Henderson was driving was sufficiently similar to Emily’s description of the firearm Henderson brought into the room that it could have been the same weapon. Conclusive evidence that it was the same firearm was not required. (People v. Riser, supra, 47 Cal.2d at p. 577.) The court did not abuse its discretion in admitting photographs of the weapon found in the vehicle.
II
Appellant asserts error in the admission of the knife and AK-47 magazine which were recovered from Nakeya Whitman’s residence. He first argues that, just as with the gun, there was no nexus linking the knife and magazine to the crimes. We disagree.
Emily testified that when Henderson was forcing her head down into his lap in the back seat of the vehicle, she saw a knife in his right hand. “I couldn’t see the full length of the knife because it was under his sleeve, so I couldn’t even see the handle. I could just see part of the blade. I didn’t know how big the blade was.” Asked if the knife was like a steak knife, flat on one side with jagged edges on the other, Emily said she did not think it looked like a steak knife. She “definitely saw sharp edges on one side. I’m not sure if there was a sharp edge on the other side.”
Detective Hanson testified that he recovered a small knife from the pocket of a black nylon ski-type jacket at Whitman’s home. It did not appear to be a folding-type knife. According to Detective Hanson, when he interviewed Emily, he believed she told him she saw a “folding-type knife.” Despite this slight inconsistency between Emily’s description of Henderson’s knife and the knife that was recovered, it was possible that the knife was the one seen during the crime.
Detective Hanson also recovered an AK-47 magazine from Whitman’s home. Given Emily’s description of Henderson’s gun as a semiautomatic with a removable magazine, there was a reasonable possibility this item also was connected to the crimes, and therefore relevant. (See People v. Cox, supra, 30 Cal.4th at pp. 956-957.)
Appellant’s more fundamental complaint is that Detective Hanson’s testimony—that Whitman indicated to him that these items, as well as others found at her home, belonged to Henderson—was impermissible hearsay. And because Whitman refused to testify at trial, appellant argues that admission of her statements to Detective Hanson connecting Henderson to the evidence collected at her residence violated his federal right to confront witnesses, as set out in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The court overruled Henderson’s hearsay objection, and admonished the jury that Whitman’s statements were not being offered for the truth of the matter asserted, but only to explain why the detective retrieved particular items during the search of Whitman’s house. This limiting instruction prevented an improper use of Whitman’s statement.
More importantly, other evidence linked Whitman to Henderson and to the crimes involving Emily. Whitman was seen in the surveillance video attempting to use Emily’s ATM card; in the video, she was wearing a jacket Detective Hanson recovered from her house. Before the search was conducted at Whitman’s house, Detective Hanson searched the property where Emily had been held. During a search of the rear detached house, Detective Hanson recovered a receipt for a magazine subscription in Henderson’s name, with the address of that house, a letter addressed to Henderson in care of another person, and a Department of Motor Vehicles receipt, a written driving test, and a probation report, all in Nakeya Whitman’s name, and addressed to 1742 West 46th Street, her home address.
The evidence found in Whitman’s home which could have been used in the crimes was independently relevant in light of the evidence of her participation in the attempt to use Emily’s ATM card and the evidence connecting her to the crime scene. Whitman’s statement that the items belonged to Henderson was admissible not for the truth, but as indicative of her connection to Henderson, and to explain Detective Hanson’s seizure of the items. The trial court did not err in allowing this statement for a nonhearsay purpose. Crawford explicitly notes that the confrontation clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (541 U.S. 3, 60, fn. 9; People v. Ledesma (2006) 39 Cal.4th 641, 707, fn. 18.)
III
Appellant asserts error based on the prosecution’s “admission by implication” of a statement Whitman made to police about the charged crimes. This claim is premised on questions Whitman refused to answer.
During trial, after Whitman’s attorney advised that she would refuse to testify, the court held an Evidence Code section 402 hearing. Whitman’s attorney told the court that Whitman already had entered a plea in the case, but was not going to testify, and was willing to be found in contempt. Whitman told the court that she did not intend to answer questions even if she had no Fifth Amendment privilege.
Whitman then was called as a witness in front of the jury, and was asked a series of questions.
“Ma’am, isn’t it true that your name is Nakeya Whitman?”
“Ma’am, I’m showing you a document that has been labeled People’s 42, an application for driver’s license in the name of Nakeya Whitman. Does that appear to be your driver’s license?”
“Ma’am, there’s an address on this driver’s license of 1742 West 46th Street in Los Angeles. Is that your residence?”
“Ma’am, back on March 18th of 2006, isn’t it true that you were at 1742 West 46th Street in Los Angeles?”
“Ma’am, I’m going to show you a document that appears to be a consent to search 1742 West 46th Street in Los Angeles with a signature of a Nakeya Whitman on March 18th, 2006. Is that your signature?”
“Ma’am, on March 18th, 2006, did you allow Detective Hanson into 1746 West 46th Street, Los Angeles, to search for clothes belonging to a Denson Henderson?”
“Ma’am, do you know a Denson Henderson?”
“Ma’am, isn’t it true that Denson Henderson is the father of at least two of your children?”
“Ma’am, I’m going to show you what’s been marked People’s 13 for identification. Ma’am, isn’t it true that in April of this year that you pled no contest to using Emily R.’s [ATM] card at the [ATM] shown in People’s 13?”
Whitman refused to answer each of these questions. Each time, the judge ordered her to answer, and each time, after she refused, the judge found her in contempt.
The prosecutor then showed People’s Exhibit 49, a video, without sound, and asked Whitman:
“Ma’am, isn’t this video showing you speaking to Detective Hanson and Sergeant Bergner on March 19th, 2006 about the events of February 21st, 2006 leading into February 22nd, 2006?”
Again, Whitman refused to answer, and the court held her in contempt. At this point, the court concluded there was no reason for the prosecutor to inquire further, and asked counsel for appellant and for Henderson if they wished to ask Whitman any questions. Both attorneys declined. Whitman was found in contempt of court and remanded to custody.
There was nothing improper in permitting the prosecution to question Whitman. If a court determines that a witness has a valid Fifth Amendment privilege to claim, it is “improper to require him to invoke the privilege in front of a jury; such a procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An adverse inference, damaging to the defense, may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt.” (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554.) “But where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” (Ibid.)
We also reject appellant’s claim that the questioning of Whitman violated his right to confront witnesses under Crawford. Crawford prohibits admission of testimonial statements of a witness absent from trial unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. (541 U.S. at pp. 51-52.)
In this case, the prosecutor did not offer out-of-court testimonial statements by Whitman; she asked Whitman factual questions about her address, driver’s license, signature, relationship to Henderson, and conduct with regard to the charged crimes. Crawford is not applicable to these facts.
IV
Appellant claims the court erred in allowing Detective Hanson to testify about his belief in the victim’s credibility. But these were not the “were they lying” type of questions which have been criticized as calling for inadmissible lay opinion about a witness’s veracity. (See People v. Chatman (2006) 38 Cal.4th 344, 381-383; People v. Zambrano (2004) 124 Cal.App.4th 228, 238-241.) Instead, part of the defense strategy in challenging Emily’s credibility was to establish that people to whom Emily told her story—in particular her mother and Detective Hanson—did not believe her.
Emily testified that in an attempt to get the money her captors were demanding, she had left a message on her mother’s answering machine that she needed money because of a gambling debt. On cross-examination, she was asked whether, when she spoke to her mother from the police station, her mother believed the gambling story Emily had left on the machine. Emily testified that her mother “did not necessarily believe the story. The police had told her certain things, and she had asked me, ‘Sweetheart, you are telling me the truth; right?’ And I exploded.” Emily was angry that her mother even had to question her about the gambling story.
Most of the cross-examination we recite was by Henderson’s counsel, but appellant’s counsel raised no objection to it.
Emily testified on cross-examination that she told the detectives that she was not even sure she would report the crimes. She explained that she was very frightened and did not remember if she said that. She then was asked if she told the detectives she was not going to report the crimes because she “felt loyal to these gentlemen who did these horrible things” to her. She admitted she felt loyal to the men “because they didn’t kill me, as I thought that they would.” She also admitted she talked to the detectives about getting the money she had promised the men. She explained that “at the moment I was very conflicted about what was happening, what had just happened to me. I was shocked, I was terrified, and I did feel a sense of gratitude that they didn’t murder me, because I could clearly identify them, and they let me go. That was the conflict that I was having at the time. I don’t have that conflict anymore.”
Defense counsel cross-examined Detective Hanson extensively about whether he believed Emily was telling the truth. He was asked whether or not Emily’s mother said she did not believe Emily. Detective Hanson replied, “I don’t know the exact conversation, but her mother had some doubts about what had happened.” Detective Hanson testified that when he asked Emily if she gambled, she said “‘No, not really.’” But he admitted he had received information from Emily’s mother that she had seen Emily utilizing an on-line gambling site.
Defense counsel asked Detective Hanson to describe Emily’s demeanor when he first made contact with her, within an hour after her release: “She was very flat, very matter of fact, very calm, very descriptive. Kind of like you and I are talking right now.” She was not crying.
After some additional questions about Emily’s report of the events, defense counsel noted that Detective Hanson had been asking Emily about painful events that had just taken place. The detective said yes. Counsel then asked, “And yet her demeanor throughout the interview was rather matter of factually [sic] as you indicated; correct?” The detective agreed. Counsel asked, “And, in fact, it kind of bothered you, didn’t it?” Again the detective agreed.
Detective Hanson then was asked about a “pretty heated discussion” he had with Emily. “There were a couple of things that initially concerned me, one of which was her affect. Another was at one point she said she had telephoned a friend of hers while in the vehicle on the way to get dropped off, released.” He explained that this bothered him “[b]ecause at one point during the interview she told me that the suspects had taken her phone. So I said, ‘Well, how did you call them if they took your phone?’ And she clarified by saying that the phone call was earlier in the ride before they had taken her phone.”
Another thing that bothered the detective was that Emily was released in her own vehicle, which he felt “was a little strange.” He explained there were a couple of aspects of the interview that concerned him, one of which was that Emily told him that she wanted these individuals to get the money they asked for. He was troubled by her allegiance to these men even though she reported that they had committed many forcible sex acts on her. Emily ultimately indicated that she wanted these men to be caught, but this was after Hanson and his partners told her she had not done anything wrong, that she was the victim in the incident.
Detective Hanson testified that Emily indicated she was upset that her mother did not believe her, and also upset that her sister did not believe her. Detective Hanson spoke to Emily’s sister, who initially did not believe Emily.
It was after extensive questioning by the defense about whether Detective Hanson, Emily’s mother, and Emily’s sister believed the victim that the prosecutor delved into the area on redirect: “And you mentioned yesterday that just hearing the story initially you had some concerns?” Detective Hanson said yes. He was asked whether he still had those concerns. He said no. Relevance objections to this question were properly overruled, because the defense already had gone into the issue. Detective Hanson then explained why he no longer had the concerns: “Based on my follow-up investigation, my further interviews, and all the information I subsequently developed in this case, I have no doubt in my mind that what Emily told me during that first interview was exactly what happened. She may have had the sequences not in chronological order, but everything she told me checked out.”
Defense counsel objected, claiming the question called for a legal conclusion and that it was not relevant. The court overruled the objection, noting the testimony was relevant to the detective’s “state of mind at this point as opposed to what is perceived to be his state of mind during the course of the audio interview.” Given the extensive cross-examination regarding the detective’s doubts about Emily’s truthfulness during the initial interview, it was relevant to know what information had caused him to change his mind. He was not offering his expert opinion on Emily’s credibility, but rather explaining that his state of mind about her story had changed based on his continued investigation. There was no error.
We also note the court limited the evidence on this issue. When Detective Hanson later testified that he had used a ruse to test Emily’s story, the court sustained an objection to the latter part of his statement, that “[s]he acted exactly, in my experience, how a person who is telling the truth adamantly would act.” This last statement was properly excluded. “The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) In accordance with this rule, the court admonished the jury “to disregard that last statement of the witness as calling for a factual conclusion, which is beyond his expertise.”
During closing argument, appellant’s counsel stated that “there was something profoundly wrong with the demeanor and the way that this story was delivered to you by Emily R.... There’s not the emotions that you would expect to see from someone who had been subjected to what Emily R. claims that she was being subjected to. Her testimony is flat, and there’s something wrong with it. I’m not the only one that thinks that. Detective Hanson, you can hear it on those tapes which I encourage you to listen to very carefully, says that he was bothered by it. So much so that he thought she might be lying.... And most importantly of all, most importantly of all her sister and her mother think she’s lying as well.... And the people that know her think she’s lying about it. Something’s wrong here about this when they think she’s lying. Aren’t they the best judges of that?”
Henderson’s counsel challenged Emily’s credibility by arguing that Detective Hanson “knows it doesn’t smell right.” Counsel then recounted the detective’s testimony about how Emily’s demeanor seemed too “matter of fact. Nothing, you know, breaking down, crying, throwing tantrums. You hear her get upset in a couple places because no one’s buying her story. He says that her whole story is matter of fact.” After pointing out the ways in which Emily’s story lacked credibility, counsel argued that Detective Hanson wanted to like Emily, wanted to believe in her. “But he’s been doing this a long time. He’s been doing this a long time, and he kind of smells when things aren’t right. But irrespective of what he smells, the question is, do you smell it?”
In rebuttal, the prosecutor argued: “When Detective Hanson investigated the case and found that every single independent piece of evidence supports what Emily R. said, he believed her. You heard that. So when Mr. Bowman [Henderson’s counsel] says, ‘Well, you should believe what Detective Hanson believes,’ okay. So are we supposed to believe her then? Is that what you’re saying, Mr. Bowman? Or are you just saying you only want us to believe what he thought when he hadn’t investigated the case?” There was no objection to this argument.
Detective Hanson’s state of mind about Emily’s credibility was at issue in the case. The defense capitalized on the detective’s initial doubts, and the prosecutor was properly permitted to present evidence addressing the basis for the detective’s change of mind from initial doubt to later belief. This did not take the issue of credibility from the jury. The jurors were fully instructed that they were the sole judges of the believability of witnesses and the weight to be given to the testimony of each witness. They also were instructed on the factors to consider in determining the believability of a witness.
V
Appellant asserts numerous sentencing errors. We begin with a summary of the sentence. Appellant was given the following consecutive sentences:
Count 2 (kidnapping to commit carjacking): life in prison with the possibility of parole after a minimum term of seven years, doubled to 14 years pursuant to the “Three Strikes” law (Three Strikes), plus five years for the serious felony prior conviction.
Count 8 (forcible rape in concert): 25 years to life imposed pursuant to the “One Strike” law (One Strike), doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 12 (forcible oral copulation in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 16 (forcible sodomy in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 18 (forcible sexual penetration in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 4 (attempted first degree robbery): eight months (one-third the middle term of two years) doubled to 16 months pursuant to Three Strikes, plus five years for the serious felony prior conviction.
For Count 1 (second degree robbery): pursuant to section 654, the court imposed and stayed sentence of the middle term of three years, doubled to six years pursuant to Three Strikes.
The court imposed the following concurrent sentences:
Count 3 (kidnapping to commit robbery): life in prison with the possibility of parole after a minimum term of seven years, doubled to 14 years pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 5 (kidnapping to commit a sex crime): life in prison with the possibility of parole after a minimum term of seven years, doubled to 14 years pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 9 (forcible rape in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 10 (forcible rape in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 13 (forcible oral copulation in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 14 (forcible oral copulation in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 17 (forcible sodomy in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
Count 25 (forcible sexual penetration in concert): 25 years to life imposed pursuant to One Strike, doubled to 50 years to life pursuant to Three Strikes, plus five years for the serious felony prior conviction.
(a)
Appellant’s first claim is that he should have been sentenced to only a single One-Strike sentence for aggravated kidnapping under the version of Penal Code section 667.61 in effect at the time the crimes were committed. Section 667.61 provides for a sentence of 25 years to life if an individual is convicted of specified forcible sex crimes and kidnapped the victim of the present offense, which movement substantially increased the risk of harm to the victim above the level of risk inherent in the underlying offense. (§667.61, subds. (c) & (d).)
All further statutory references are to the Penal Code.
In February 2006, when the crimes were committed, section 667.61, subdivision (g) provided: “The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” “[F]or the purposes of [former] Penal Code section 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” (People v. Jones (2001) 25 Cal.4th 98, 107.)
The crimes were committed on February 21 and 22, 2006. Section 667.61 was amended later that year, omitting this language and substituting other provisions on consecutive sentencing.
There is no dispute that section 667.61 applies in this case. But there was only one victim, Emily, and the forcible sex crimes involving appellant all occurred while she was in a converted room in the detached garage. The question is whether the forcible sex offenses occurred on a single occasion within the meaning of section 667.61, subdivision (g).
During the five hours that Emily was held, she left the garage two or three times to go to the bathroom. Other events also separated the offenses. At one point, Emily was forced to douche herself. At another, appellant and Henderson left the room, then returned with a disposable camera and committed additional sex acts. And Emily was left alone in the room with appellant, who forced her to perform additional sex acts.
The evidence could support a finding that some of the sexual offenses were sufficiently separated by time or space to be considered separate occasions, but the trial court did not make that determination before applying the One Strike law. The cause must be remanded for the court to evaluate the evidence to determine whether appellant should be sentenced to one or more One Strike terms under former section 667.61, subdivision (g).
(b)
Respondent argues, and appellant agrees, that the case also must be remanded for a determination whether appellant is subject to the mandatory or discretionary provisions of section 667.6, subdivisions (c) and (d), which depends on whether the offenses were committed on the same or on separate occasions. Remand is necessary for this determination.
(c)
Next appellant claims either the sentences for aggravated kidnapping or for the intended crimes must be stayed pursuant to section 654. That section precludes multiple punishment for a single act or indivisible course of conduct.
A course of conduct divisible in time, even if directed to one objective, may give rise to multiple violations and punishments, particularly where the offenses are temporally separated so as to afford the defendant an opportunity to reflect and renew his or her intent before committing the next crime. (People v. Andra (2007) 156 Cal.App.4th 638, 640.) “The defendant’s intent and objective present factual questions for the trial court, and its findings will be upheld if supported by substantial evidence.” (Ibid.)
Respondent agrees with appellant’s claim that section 654 precludes punishment on both counts 4 and 5. As to count 5, appellant cannot be separately punished for kidnapping to commit sexual offenses and for the sexual offenses committed during the same kidnapping. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) The sentence for count 5 must be stayed. As to count 4, the attempted ATM robbery, appellant cannot be separately punished for this offense and for count 3, kidnapping to commit robbery, as both offenses were committed for the same purpose. Since count 3 provides the longer prison term, the sentence on count 4 must be stayed. (§ 654, subd. (a).)
(d)
There is no such prohibition against punishing appellant on count 2, kidnapping for carjacking, and on count 3. Count 2 was based on the perpetrators grabbing Emily and dragging her toward her car, with the objective of taking her car. Count 3 was based on the perpetrators driving Emily away from that location to a bank, with the objective of forcing her to use her ATM card to withdraw money for them. Given the two separate objectives in the kidnapping counts, punishment for both is not precluded under section 654.
(e)
Appellant asserts that pursuant to section 667.61, subdivision (f) and section 209, subdivision (d), he could not be punished under both the One Strike law and aggravated kidnapping laws on counts 2, 3, and 5, because they were predicated on the same act.
Section 667.61, subdivision (f), as in effect at the time of the crimes, provided: “If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).”
Subdivision (b) of section 209 sets out the basis for aggravated kidnapping, including kidnap to commit sexual crimes or robbery, “if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.” Subdivision (d) of that statute provides: “Subdivision (b) shall not be construed to supersede or affect Section 667.61. A person may be charged with a violation of subdivision (b) and Section 667.61. However, a person may not be punished under subdivision (b) and Section 667.61 for the same act that constitutes a violation of both subdivision (b) and Section 667.61.”
Appellant is correct in arguing that he cannot be punished for kidnapping to commit sexual crimes (count 5) under both section 209 and section 667.61. Sentence on count 5 thus must be stayed on this ground, in addition to section 654 grounds.
But appellant is not correct in arguing that all three kidnapping counts constitute a single “circumstance” within the meaning of section 667.61, subdivision (f). The One Strike sentencing was properly premised on aggravated kidnapping for commission of sexual crimes under section 667.61, subdivisions (c) and (d). The kidnapping for carjacking and the kidnapping for robbery were separate from the kidnapping for commission of sexual crimes. Counts 2 and 3 were not relied on for this portion of the sentence, and punishment for these offenses is not precluded by sections 209 and 667.61.
(f)
Finally, appellant claims the multiple five-year enhancements for one prior serious felony conviction found true pursuant to section 667, subdivision (a), must be stricken. Section 667, subdivision (a)(1) provides that any person convicted of a prior serious felony “shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”
Appellant relies on People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401. In that case, the Supreme Court held that the five-year enhancement under section 667, subdivision (a) is an enhancement that relates to the nature of the offender, not to the nature of the offense, and thus may be used to enhance a sentence only once, regardless of the number of terms that make up the total sentence.
In People v. Williams (2004) 34 Cal.4th 397, the Supreme Court noted that Tassell involved calculation and imposition of a determinate sentence. “Thus, this court in Tassell relied on the language of section 1170.1, and not on the language or legislative history of section 667(a), in concluding that at sentencing a trial court must impose a sentence enhancement for a prior felony conviction—including a section 667(a) enhancement—only once, regardless of the number of new felony offenses.” (Id. at p. 402.) The court then held that “[t]he Three Strikes law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant’s record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense. Accordingly, we conclude that, under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (34 Cal.4th at pp. 404-405.) This reasoning has been held equally applicable to second strike defendants, such as appellant. (See People v. Misa (2006) 140 Cal.App.4th 837, 846-847.)
With the exception of count 4, the sentences imposed in this case all involved indeterminate terms, which are not subject to the limitations of section 1170.1. Appellant was sentenced under the Three Strikes law, and was subject to a separate five-year enhancement pursuant to section 667, subdivision (a) for each count.
(g)
Respondent correctly notes that the trial court failed to impose the court security fees mandated by section 1465.8, subdivision (a)(1). Respondent also points out that in calculating the minimum term of the indeterminate terms, the court should have sentenced appellant to the minimum term to life, with separate imposition of the five-year enhancement under section 667, which is a determinate term that must be served separately from the life term. On remand, the trial court is directed to correct the abstract of judgment accordingly.
DISPOSITION
The judgment is reversed and the cause remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.