Opinion
D039935.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. JAVIER MARTINEZ TORRES, Defendant and Appellant.
Javier Martinez Torres appeals a judgment entered after a jury convicted him of two counts each of residential burglary (counts 1 & 2), forcible oral copulation (counts 3 & 5), forcible rape (counts 4 & 6) and assault with a semiautomatic firearm (counts 8 & 9) and one count each of first degree robbery (count 7) and false imprisonment (count 10), plus various enhancements. He contends the trial court erred in (1) denying his motion to continue his sentencing hearing in order to conduct DNA testing of the victims underwear and (2) not staying the sentence on the second burglary under Penal Code section 654 (all statutory references are to this code). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 22, 2000, Karla B., who was 15-years old and about two months pregnant, lived with her husband, Andy, in an Escondido apartment. The couple was having marital problems at the time. When they arrived home from work that evening, they saw that a window screen had been removed and that their home had been burglarized. A number of items were missing, including jewelry, a VCR, Andys semiautomatic handgun and extra house keys. After Karla called the police, Escondido Police Officer Stephen Wilson responded and took a report.
Sometime after the officer left, Karla entered the kitchen where she encountered Torres with a T-shirt partially covering his face and holding what later proved to be Andys gun. Andy rushed into the kitchen carrying a bat when he heard Karla scream, but he dropped the bat when he saw Torres holding the gun. Torres ordered the couple into the bedroom at gunpoint where he had Karla tie Andys hands with an electrical extension cord.
After Andy was tied up, Torres had Karla return to the kitchen and remove her underwear; he then sexually assaulted her at gunpoint. Torres later ripped Karlas necklace off and took her watch and a ring. As he left, Torres threatened to kill Karla and Andy if they tried to follow him. Karla freed Andy and called the police while Andy jumped out the window to go to a neighbor for help. Karla was wearing a black nightgown during the assault and afterwards her neighbor gave her a shirt to cover herself. A police officer also gave Karla a towel to wipe herself while she was in the police car. Karlas physical examination revealed injuries to her genitalia consistent with a rape at gunpoint. Karla could not identify her assailant, but she provided a description to the police from which they created a composite sketch.
About a week later, Officer Steve Braucht responded to a "hit-and-run" accident and saw Torres fleeing the scene. Officer Braucht noted that Torres fitted Karlas description of her assailant and he was wearing black work boots as described by Andy. A search of Torres revealed a magazine from a semiautomatic handgun and several rounds of ammunition. Officers later recovered a gun and a second magazine near the accident scene. Andy identified the gun as his. A search of Torress home revealed other items stolen from Karla and Andys apartment, including Karlas watch and necklace.
Forensic analysis revealed sperm on the vaginal swabs taken from Karla after the assault, on her nightgown, on the towel given to her by the police officer and on the shirt given to Karla by her neighbor. Further testing revealed that the sperm cells left on each of the items came from Torres, with the probability of another person having the same genetic markers as Torres being about one person in 133 billion.
Torres testified in his own defense, claiming that he knew Karla and that they had engaged in consensual intercourse on July 21, 2000, but admitting that he never told this story to police. Torres claimed he went to Karlas apartment on July 22 to again have sex, but decided to burglarize the apartment when he saw Karla was not there. He denied committing the second burglary and the sexual assault. Torress girlfriend, Karla Ruelas, testified that she and Torres had lived across the street from Karlas apartment at one time and that she suspected that Torres and Karla knew each other. After the DNA results came back, Torres admitted to Ruelas that he had had sex with Karla on July 21, 2000.
A jury convicted Torres of all counts and found true all enhancements. After the conviction, the trial court granted defense counsels request to continue the December 14, 2001 sentencing hearing to allow her to examine Karlas underwear and to bring a number of anticipated motions. It set the case for a status conference on February 1, 2002, to either resolve any defense motions or proceed with sentencing. At the February 1 hearing, defense counsel indicated that the underwear contained something to test and requested an order to allow the testing. The People objected to the request, indicating that the defense expert waited until the week of the hearing to examine the underwear and that no defense motions had yet been filed. The trial court again continued the sentencing hearing to March 8 to allow the defense to file a motion to allow testing of the underwear. The court contemplated hearing all defense motions on March 8 and indicated that, if it allowed testing of the underwear, it would give the defense additional time.
Torres filed a motion for a new trial, to enforce discovery rules and again continue sentencing, requesting that the underwear be sent to a laboratory for DNA testing, but oral argument on the motions was continued from March 8 to March 28 because the judge was ill. On March 28 the trial court heard oral argument, denied the motions and sentenced Torres to 109 years 8 months to life. The sentence consisted of consecutive full-term sentences for the sex offenses (counts 3-6), consecutive sentences on the first burglary (count 1), robbery (count 7) and armed assault on Andy (count 9). The court stayed sentence under section 654 for the armed assault on Karla (count 8) and the false imprisonment (count 10) and imposed a concurrent term for the burglary conviction in count 2, indicating the burglary was for the purpose of committing the sexual assault.
DISCUSSION
No Abuse of Discretion in Denying Sentencing Continuance
Torres contends the trial court abused its discretion when it refused to continue the sentencing hearing to allow DNA testing of Karlas underwear. Trial testimony revealed that Karla was not wearing any underwear during or after the assault; thus, Torres contends that finding his DNA on the underwear would support his testimony that he had consensual sex with Karla the day before and that his seminal fluid leaked from her vaginal cavity onto her underwear. Torres concedes that he knew about the underwear and the possibility of testing it prior to trial, but contends he was not aware of the importance of testing the underwear until late in the trial, when a continuance was unlikely. Waiting until after trial to request the testing prejudiced no one if the test came back negative, but if the results proved useful, he could have moved for a new trial based upon the new evidence and/or ineffective assistance of counsel.
"A continuance will be granted for good cause ( § 1050, subd. (e)), and the trial court has broad discretion to grant or deny the request. [Citations.] In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.] One factor to consider is whether a continuance would be useful." (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, 959 P.2d 183.) The ruling on a motion to continue will not be disturbed on appeal unless it exceeds the bounds of reason, all circumstances being considered. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) Torres has not demonstrated an abuse of discretion.
All evidence collected in the case was available to defense counsel for examination and testing. Defense counsel initially believed the underwear had no connection to the crime, only discovering its alleged relevance from her expert midway through trial. Defense counsel chose not to raise the issue of testing the underwear during trial, believing any request for a continuance would be denied.
After the conviction, defense counsel learned that the prosecution objected to release of the underwear, and she sought to continue the December 14, 2001 sentencing in order to file the appropriate motion. Although the prosecution objected to the examination as untimely, the trial court continued the hearing to February 1, 2002, and ordered defense counsel to take action "immediately." Despite this admonition, the defense expert did not examine the underwear until the week of the hearing and defense counsel failed to prepare a motion to request testing of the underwear. Despite this lack of diligence, the trial court again continued sentencing to allow defense counsel the opportunity to file a motion by February 15. On February 15, Torres filed a motion for a new trial, to enforce discovery rules and continue sentencing, requesting that the underwear be sent to a laboratory for DNA testing. On March 28, the trial court denied the motions after hearing oral argument.
Torres knew about the potential evidentiary worth of the underwear during trial and could have requested DNA testing, but apparently chose not to raise the issue in order to preserve his argument that the prosecution had not tested the underwear for possible exonerating evidence. After making this tactical decision, Torres displayed a lack of diligence in seeking the postconviction DNA testing and the trial court properly considered this dilatory conduct when denying the continuance request.
Moreover, it was not reasonable to believe that the testing would have assisted Torres. Karla testified that she removed her underwear before she was sexually assaulted and the police found the underwear on the kitchen floor when they arrived. The prosecution never tested the underwear because it had no information that semen would be found on it.
Significantly, Torres admitted during trial that he never told the police that he had had consensual sex with Karla the day before her assault and he actually denied knowing Karla when first accused of the assault. Even after the police told Torres that his fingerprints were found inside Karlas apartment, he did not tell them that he had had consensual sex with her. Apparently, it was not until after the DNA results implicated him that he raised the defense of consensual sex.
Torress defense theory implies that Karla and Andy conspired to frame him for the second burglary and the sex offenses, yet he provided no evidence to support this possibility. Had the couple desired to frame him, one or both of them would presumably have immediately identified him as the assailant, rather than hope for his capture based on Karlas physical description. He also failed to explain why his semen appeared on the towel given to Karla by the police and on the shirt Karlas neighbor gave her after the assault. Based on this record, we cannot say that the trial court abused its discretion in denying the sentencing continuance because Torress speculative argument that DNA testing of the underwear would corroborate his testimony strained credulity.
Multiple Punishment
The trial court imposed a four-year term on the second burglary, to run concurrent with the terms imposed for the sexual offenses (counts 3-6) committed during the second burglary. Torres contends the trial court erred by not staying the sentence on the second burglary under section 654. As a preliminary matter, we reject the Peoples contention that Torres waived this issue by not raising it at the sentencing hearing. As noted by our high court, a sentence can be challenged on appeal if it exceeds the trial courts jurisdiction, "when it erroneously . . . fails to stay execution of a sentence under section 654." (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17, 885 P.2d 1040; see also People v. Hester (2000) 22 Cal.4th 290, 294-295, 992 P.2d 569.)
Turning to the merits of Torress claim, we find no error. Section 654 prohibits multiple punishment for the same act or omission. However, section 667.6, subdivision (c) authorizes consecutive full-term sentences "whether or not the crimes were committed during a single transaction" for certain sex offenses in lieu of the term provided by section 1170.1. In People v. Hicks (1993) 6 Cal.4th 784, 863 P.2d 714, the California Supreme Court concluded that section 667.6, subdivision (c) created an exception to section 654 so as to permit full-term consecutive sentences for enumerated offenses constituting separate acts committed during an "indivisible" or "single" transaction. (People v. Hicks, supra, at p. 787.) Based on this conclusion, it upheld multiple punishment for a burglary as well as for each violent sexual offense committed during the burglary, "notwithstanding section 654s general proscription against multiple punishment for offenses committed during an indivisible course of conduct." (Id. at p. 797.) Here, the trial court did not err by imposing a concurrent term for the second burglary (count 2) in addition to the consecutive full-term sentences for the sex offenses against Karla under section 667.6, subdivision (c).
DISPOSITION
The judgment is affirmed.
WE CONCUR: OROURKE, J., and AARON, J.