Opinion
F037426.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. PAO YANG et al., Defendants and Appellants.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Pao Yang. Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant Voua Yang. Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant Tue Xiong. Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant Sia John Lor. Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant Vang Pao Moua. Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant Nhia Yang. Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant Nua Moua. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Harry J. Colombo, Carlos A. Martinez and Robert K. Gezi, Deputy Attorney Generals, for Plaintiff and Respondent.
INTRODUCTION
This appeal arises out of an investigation into allegations that members of a criminal street gang, the Mongolian Boys Society (MBS), were sexually assaulting young Asian girls and forcing some of them to engage in prostitution. All of the appellants are members, former members or associates of MBS. In January 2000, appellants and other MBS members were tried in a joint jury trial for a plethora of criminal offenses involving nine victims: May, Annie, Pa, Cindy, P., Judy, F., Linda C. and Linda H. The jury found Anthony guilty of 26 crimes involving three of the victims; Deuce was found guilty of 25 crimes involving four of the victims; Iron Man was found guilty of 20 crimes involving four of the victims; Scissors was found guilty of 14 crimes involving three of the victims; Sim was found guilty of 11 crimes involving three of the victims; Bolo was found guilty of 10 crimes involving three of the victims; and Money was found guilty of nine crimes involving five of the victims. Appellants were sentenced to the following aggregate terms of imprisonment: Anthony received 36 years, eight months; Bolo received 23 years, four months; Deuce received 24 years, eight months; Iron Man received 24 years; Money received 21 years, eight months; Scissors received 20 years; and Sim received 18 years, eight months. Specific offenses and aspects of the sentences will be set forth as necessary in our discussion of appellate issues.
In the interest of brevity, we have omitted reference to undisputed procedural matters and to trial evidence that is not directly related to appellate issues. At the start of trial there were 13 defendants, 15 defense attorneys, two deputy district attorneys, and two interpreters. Trial witnesses almost invariably referred to the defendants and other MBS members/associates by their gang monikers. Vang Pao Moua was known as "Anthony." Nua Moua was known as "Bolo." Tue Xiong was known as "Deuce." Sia John Lor was known as "Iron Man." Nhia Yang was known as "Money." Pao Yang was known as "Scissors." Voua Yang was known as "Sim." For ease of reference, when mentioning an individual appellant we will use his moniker. When referring to other individuals who were referenced by a moniker, we will use the name by which he or she was referred. For example, May referred to a person as "007" without specifying his legal name and so we have referred to him as "007."
Appellants challenge the sufficiency of the evidence supporting some of the counts and raise numerous other complaints about the criminal proceedings and their sentences. The Attorney General properly conceded a few points and we have found some other errors affecting certain counts. To be fair, we also commend the trial judge for the dexterity it displayed in managing this complicated matter and trial counsel for their professionalism. The criminal proceedings were a mammoth task and they were deftly handled by all concerned.
FACTUAL OVERVIEW (Arranged by victim)
Appellants offered testimony designed to prove that the victims voluntarily had sexual intercourse (sex) with them and that May and other girls freely prostituted themselves independent of MBS. They presented evidence of prior inconsistent statements made by some of the victims. None of the appellants testified.
May (all seven appellants were convicted of abusing May)
On or about May 31, 1997, May (born in 1983) was invited to a party. May sneaked out her bedroom window and Scissors drove her and another girl to 007s house. While she was there, Anthony told May to have sex with 007. May refused, telling him that she was a virgin. Then Bolo and Deuce told May to have sex with Iron Man, who was her boyfriend. May refused. Deuce grabbed May by her arms and took her to a different room with a bed in it. Iron Man came into the room. Deuce told them to hurry and left the room. Scissors and Deuce came back into the room and someone undressed her. Scissors and Deuce told Iron Man and May to hurry. They took Mays clothes and left the room. Iron Man told May to "hurry up and get it over with." Iron Man forced May to have sex with him for five or 10 minutes. May "said for him not to do it." She tried to stop Iron Man, but he pushed himself on her. After Iron Man ejaculated, he dressed and left the room. Then 007 entered the room. May had wrapped herself in a sheet. Deuce came into the room, took the sheet and left. 007 had sexual intercourse with May for about 10 minutes. She tried to stop 007 by pushing against him and yelling "at him for being a child molest and a fat ass." After 007 finished, he left the room. Deuce and Bolo came into the room. Deuce was naked and his penis was erect. He was sticking out his tongue and wagging it at May. Bolo grabbed her from behind. Deuce approached May and she bit him on the shoulder. Deuce remarked that his penis had become "dead" and left the room. Someone brought Mays clothes back into the room. She dressed and left the room. Scissors drove May home. Deuce later threatened to beat her up if she told anyone about what had happened at 007s house.
About a week after this assault, Scissors and Deuce pressured May into coming with them to another party. While she was there, Anthony told her that she had "to go pimp," which means "[w]hen someone has sex with an older guy for money." He said that customers would pay $40 or $60. Bolo, Deuce, Iron Man and Scissors were present. Deuce and Iron Man told May that they would beat her up if she refused to pimp. Deuce also threatened that "[h]ell go home invasion if I go home," which means "go shoot my whole family." May felt like she had no choice but to agree to engage in prostitution. She got into a car with a Hmong man. She tried to stop the man from having sex with her by telling him that she was too young and did not want to have sex. The man replied that he had "[p]aid Anthony." May had sex with him.
After this event, May did not return home until mid-August. During this two-month period, May was "pimped out to paying customers" three to five times per day. May never sought out customers herself or negotiated with them. She acted in response to orders given by Anthony, Deuce, Sim and Iron Man. Anthony appeared to be in charge of the prostitution activities. When he was not present, Scissors talked to customers and took money from them. May also saw Iron Man, Deuce, Bolo and Sim interacting with customers.
In addition to engaging in prostitution, May had sex with Bolo, Deuce, Iron Man, Money, Scissors, and other MBS members during this period. She orally copulated Anthony, Deuce, Iron Man, and Scissors. On two occasions, MBS members had sex with May in succession. This was known as a "lineup" or a "Mongolian train." The first time May was "lined-up" occurred during the month of June in a Motel 6 room. (MBS members often rented motel rooms in which groups would congregate, engage in sexual activity and conduct prostitution-related activities.) Bolo and Deuce were among the participants. May was "lined-up" again the following month in another Motel 6 room. Money was one of the participants. Iron Man participated in one of the lineups. Testimony about specific sexual acts involving May will be set forth as necessary in the discussion of legal issues.
May worked as a prostitute and engaged in sexual activities with MBS members because she believed that she would have been beaten and "lined-up" if she refused. She also believed Iron Mans threat that he would harm her family. She saw five MBS members including Sim, Deuce and Iron Man beat up Annie. She also saw Anthony, Deuce, Iron Man and Money handling a handgun. May described an incident in which she went to a shopping mall with a girl named Gonhia. When she returned, Money held a knife to Mays neck and told her that if she ever went to the store again he would kill her. May did not go home because she believed that it would be pointless; Deuce, Anthony and Bolo would come to her house and remove her. Deuce told her, "if I was going to go, he would come right back and get me."
Annie (Deuce, Iron Man, Scissors and Sim were convicted of abusing Annie)
Youa (born in 1983) is known as Annie. Sometime in May or June 1997, she was socializing with a group of MBS members when Sim told her that he wanted to pimp girls. Annie argued back, asking him why he could not respect girls the same way girls respect guys. Sim did not respond. Later that day, Sim approached her and he began punching her. Deuce, Iron Man and three other men joined in. They punched her for about 30 seconds to one minute. She fell to the ground and Iron Man kicked her. They bruised her face and body. May and Judy saw Annie being beaten. Judy testified that Scissors also was punching Annie.
On another occasion, Annie was in a motel room with a group when Sim grabbed her by the wrist and dragged her into the bathroom. He told her to take off her pants. When she refused, he removed her jeans and underwear, pushed her onto the floor and had sex with her. Sim left the bathroom. After showering, Annie went back into the room and asked Sim if she could leave. He told her "no."
At the end of June, Annie was in a car with Scissors, Sim, Deuce and ET traveling to a motel when Scissors pointed a handgun at her. It looked like a .45-caliber weapon. She went into the motel room with them because she felt that she did not have a choice. She was afraid of them and did not want to be "shot by them or anything." Annie sat on the bed for a while, drinking and watching television. Scissors grabbed her by the wrist and took her in the bathroom. He removed her pants and underwear and forced her to have sex with him. She tried to push him away but "[h]e kept on coming back." She stayed in the motel room until the next morning and then she went home. She did not try to leave the motel room immediately after Scissors raped her because she knew that they would not allow her to leave or take her home because she had not been permitted to leave the room after Sim had raped her.
Pa (Deuce, Money and Scissors were convicted of abusing Pa)
On the evening of Friday, July 18, 1997, Pa (born in 1982) went to a motel room with Money and two other MBS members. She could not get a ride home and so she slept in the motel room. The next morning, she went to another motel room where a group had congregated. Pa was pressured by two girls to have sex with Scissors. Scissors undressed Pa and had sex with her. He held her by her arms or hands. Afterwards, Money told Pa to go to the bathroom. She refused. He said, "You have to listen to us," and told her that if she did not go to the bathroom, they might have to take her by the hand or carry her. Pa went into the bathroom. She took a shower because she was bleeding from the vagina. Deuce entered the room. He had sex with Pa on the bathroom floor. Then Money entered the bathroom and he had sex with her. She did not agree to have sex with any of these three men. Pa remained with MBS members until Tuesday. At one point, she was in a motel room with a group of MBS members and girls when she saw a man give $ 70 to Scissors. After Scissors counted the money, he asked the man to choose the girl with whom he wanted to have sex. May, Cindy and Naly were in the room. The man pointed to Naly and then he took her outside to his car.
Cindy and P. (Anthony and Iron Man were convicted of abusing Cindy; Deuce and Iron Man were convicted of abusing P.)
One day in January 1997, P. and Cindy (both born in 1983) went to visit a friend. A group of men that included Deuce was at the friends house. P. and Cindy went with this group to Snuks house. Four to six men were inside Snuks house; Cindy recognized Iron Man among them. The girls went into a bathroom that was reached through a bedroom. When they came out, several of the men were standing in the bedroom. They gang raped the two girls.
P. testified that Beetle grabbed her by the hair and pulled her down to the floor. She started yelling. Someone told her to stop yelling because the neighbors would hear. Someone removed her pants. First Bee and then Deuce had nonconsensual sex with P. After Deuce was finished, Iron Man said "that he wanted to go next or else hes not going to go at all." Iron Man got on top of P. and had sex with her. Beetle pinned one of P.s arms to the ground. P. asked Deuce and Iron Man how they could do this to her because they were friends with her brother. Neither man replied. When Iron Man finished, four other men forced P. to have sex with them. Cindy testified that Poker pulled her to the floor. Iron Man held down her hands. Cindy "told them to stop it." Either Iron Man or Poker took off her pants. Poker had sex with Cindy, despite her pleas for him to stop. She tried to kick him but someone held her legs down. Afterwards, Cindy was raped by another man.
In early summer 1997, Cindy was in front of a friends house when Anthony and Boon Mee drove up. Boon Mee grabbed Cindy by the hand and forced her to get into Anthonys car. They went to a barbecue where she was initiated into MBSs female auxiliary group, the Mongolian Society Girls (MSG). Cindy did not return home for the next three months. During this time, she stayed in various motel rooms and with Gonhia.
There was testimony that Judy, May, Linda H. and Annie also were MSG members during 1997.
One day during that summer, Cindy was in a Best Budget Motel room. Anthony took her into the bathroom, removed her pants and forced her to have sex with him. She told Anthony that she did not want to have sex with him, tried to push him off her and told him to stop. After Anthony finished, he left the bathroom. Bolo came in the room. Bolo indicated that he wanted to have sex with her. When she said no, Bolo replied that "he was just playing" and left the bathroom. Then Sim came into the room. After unsuccessfully trying to touch her breasts and to remove her pants, he left the room. Iron Man entered the bathroom and he forced her to have sex with him. Cindy tried to push him away and she told him to stop.
Linda H. and Linda C. (Bolo, Money and Sim were convicted of abusing Linda H.; Bolo and Money were convicted of abusing Linda C.)
One day in March 1998, Linda C. and Linda H. (both born in 1984) skipped school with a girl named Pang. The three girls took a bus to a shopping center where they met Scissors, Bolo and Diamond. The girls got in a car with the men. After a few stops, the girls were taken to a Motel 6 room. A group that included Iron Man, Money, Sim, and girls named Esther and Crystal joined them. Linda C. told Crystal that she wanted to leave. Linda H. asked Esther to take her home. The girls were not able to leave the room because Money grabbed a chair and sat in it in front of the door, blocking the exit. Linda H. asked Money if they could go home. "He said no." Money eventually permitted Esther and Crystal to leave the room but he did not allow Linda C. or Linda H. to leave. Maney, a cousin of both Linda H. and Linda C., called the room two or three times. Sim unplugged the telephone and someone hid it. Two men forced Linda C. to go into the bathroom. She tried to escape, but they blocked the bathroom door. First Nippy and then Bolo raped Linda C. She told Bolo that she did not want to have sex with him but he forced her to do so. Afterwards, Linda C. was allowed to leave the bathroom. She sat on the bed next to Linda H. She was crying and she told Linda H. that something bad had happened to her. About an hour later, Bolo approached Linda H. and asked her if she wanted to have sex with him. When Linda H. refused, Bolo retreated. Then Sim and a man known as Z approached Linda H. Sim told Linda H. "[i]n a mean way" that she had to have sex with Z. Linda H. asked Sim how he could do this to her because he was a friend of her sister. He answered that he "didnt care" and that "hes doing it for his boys." Z grabbed Linda H.s arm and dragged her into the bathroom; Sim followed. Z removed her pants and underwear and they had sex on the floor. Linda H. did not want to have sex with Z but she was afraid to resist because she believed Zs "friends would have done something to [her]." When Z finished, Sim had sex with Linda H. She did not want to have sex with him and asked Sim a second time why he was doing this to her. Later, Linda C. was forced to have sex with Sim and with two other men on a mattress that had been laid on the floor. Linda C. told Sim that she did not want to have sex with him. The next morning, some members of Linda H.s family came to the hotel and took Linda H. home. Linda H.s mother told Linda C. to come with them, but she refused.
Judy (Anthony was convicted of abusing Judy)
Judy (born in 1983) testified that she ran away from home in May 1997 and was gone for "[a]lmost a month." She stayed at various houses and motels. Judy was "pimped out" during this period. The customers paid Anthony; Judy did not receive any of the money. She did not plan to be gone so long but she was afraid to return home "[b]ecause Money say that if we go home, then hell come back and kick our ass." Judy saw a handgun at the motel and thought that Deuce and Scissors would kill her if she left. Also, Scissors cut off a piece of her hair and Judy was scared that he was going to bury it. In the Hmong culture, cutting a persons hair is threatening because "they say that if you bury a human hair, then you could die the next day." Scissors eventually drove Judy home because there was no more money and she "didnt want to go pimp for them any more."
Judy was in a motel room one day during this month when Anthony got on top of her and tried "to rape [her]." He touched her breasts and vagina under her clothes. Judy told him to stop and tried to push him away but he continued touching her for 15 to 30 minutes.
Judy was driven to 007s house the following day. Anthony told her to have sex with 007. She refused. He took her hand and led her into another room. He told her to undress. When Judy refused, Anthony undressed her and then hid her clothes. 007 came into the room, sat on top of Judy, touched her breasts and vagina and forced her to have sex with him. Judy tried to push 007 off her and told him to stop but he did not listen. After about 10 minutes, Judy was able to push 007 off her. She asked Scissors to bring her clothes back, which he did. She dressed and left the room.
Scissors drove Judy to another house. While they were there, Deuce touched her breasts and vagina under her clothes. She told him to stop but he did not comply.
Eventually, Judy returned to 007s house with a group that included Annie and May. Scissors and Anthony wanted them "to go pimp." Judy refused. Nonetheless, two men between the ages of 60 to 70 arrived to pick up Judy, May and Annie. The girls did not want to go with the two men. Scissors told them to go with the men "or else hed kick our ass." The three girls got into a car with the two men. Judy and May told the men that they did not want to be with them and so they dropped off the girls at Iron Mans house. Inexplicably, Scissors became angry with the two men and said that he wanted to pull a gun on them.
Judy went to a motel with a group that included Anthony, Deuce and Money. She drank some beer. Deuce started touching Judys breasts and vagina. She walked with Deuce into the bathroom. He told her to undress. Judy refused and so Deuce undressed her. Deuce sat on the toilet. He made Judy sit on top of him and they had sex for about 10 minutes. Judy twice told Deuce to stop but he did not comply.
The following day, Judy went to 007s house. Judy was talking with Annie and May when Anthony approached them and told Judy to pimp. She refused. He said, "if I dont go pimp, theres no way well ever go home." The three girls walked away from him. Then Money approached them and demanded that they go pimp. They told him that they did not want to pimp and went to talk with 007. Anthony approached them again and said that he wanted to talk with Judy. Judy went with him into another room. He told her to take off her clothes. Judy refused. Scissors entered the room. Someone undressed Judy and took her clothes out of the room. Scissors forced Judy to have sex with him for approximately 10 minutes. She told him to stop and pushed him. After Scissors finished, Judy asked Anthony to return her clothes. He refused. 007 entered the room. He touched Judys breasts and vagina for about five minutes. He wanted to have sex with her but she did not let him. Judys clothes were returned and she was allowed to leave the room. Judy talked to Annie for a few minutes and then Annie was taken "to go pimp" with "an old man."
Sometime during this month, Judy was at 007s house talking with May and Annie when Anthony entered the room. The two girls left and Anthony told Judy to remain. He began kissing her and removed her clothes. He inserted his penis into Judys vagina a couple of times. He held her down on the ground with his hands. She told him to stop. He complied and walked out of the room.
F. (Money was convicted of abusing F.)
During summer 1997, F. (born in 1982) was standing in front of a friends house when a van stopped. Money, May and Rocket were inside. F. began talking with them. Money asked her to have sex with him three times. She refused. He grabbed her wrist and pulled her toward the van. F. freed herself and went inside her friends house.
Later that summer, F. agreed to go to a store with May and some others. She was driven to a motel instead. F. went inside a room where a group had congregated, sat on the bed and talked with May. F. asked two MBS members to take her home. They did not comply. Money asked F. if she wanted to have sex with him. She said no. He told F. to go to the bathroom and asked her if she wanted it "the hard way or the easy way?" F. felt bad when Money said this to her because she understood him to mean that if she did not have sex with him, he might hurt her. Money grabbed one of F.s wrists and pulled her into the bathroom. She was trying to push him away. Once inside, Money told F. to undress. She complied. Money handed F.s clothes to someone standing outside the bathroom and this person hid them in a drawer. Money pushed F. on the floor and had sex with her. F. told him to stop and struggled against him. Afterward, two other men raped F.
In October 1997, F. was in a motel bathroom when Sim entered the room. Sim undressed F. and they had sex. She told Sim "[t]o stop it," but he did not comply.
DISCUSSION
I. CONTESTED ISSUES AFFECTING ALL OF THE APPELLANTS
A. Physical Restraint
i. Facts
On December 23, 1999, the People moved for an order permitting appellants to be physically restrained during the criminal proceedings because there was the possibility that they would attempt to escape or behave in a violent or disruptive manner during trial. The Peoples evidence established the following facts: (1) all of the defendants were affiliated with MBS; (2) they were bilingual; (3) there was an escape threat during an earlier court proceeding; (4) rape victims had been threatened by MBS members; (5) search of a cell occupied by two of the defendants revealed a jail-made club secreted under one of the bunks; (6) Bolo was cited in the jail for involvement in a physical altercation with another inmate; (7) Anthony was cited for not immediately obeying an officers order to pull up his jumpsuit; (8) two other defendants were cited for arguing with an inmate and for not immediately obeying an officers order to terminate a visit. Appellants opposed, arguing that the People had not shown manifest need for restraint.
A hearing was held. The court noted that defendants had not challenged the validity of the Peoples evidence. It took judicial notice of testimony given by two gang experts before the grand jury concerning MBS and the behavior of Asian gang members and also of the records in three other cases it had presided over in the past involving Southeast Asian gang members. The court ruled that defendants were to be restrained during the trial because there was "sufficient concern in the Courts mind to warrant physical restraints of the defendants based on not only the sheer numbers of defendants, but also their common membership in a criminal street gang." It decided that an ankle shackle was the proper form of restraint. It reasoned that the presence of numerous armed bailiffs in the courtroom could prejudice the jurors against the defendants and detract from the dignity of the proceedings. While a stun belt would be concealed, the fear of being shocked could impact the defendants mental faculties. The court stated that the physical layout it had selected for this trial "enables total concealment of leg shackles throughout the case." The ends of the benches were to be skirted with fabric and a "modesty board" would conceal the feet of defendants who were seated in the back row. The shackles were to be taped so that they would be silent. The defendants were to be shackled independently from each other. They were to be shackled in a manner that would prevent their quick movement but not cause any pain, humiliation, embarrassment or prevent them from standing up or being introduced to the jury. Defendants were to be able to freely communicate with their attorneys, investigators and interpreters. If a defendant chose to testify, he would be freed of the restraint and would walk to the stand like all the other witnesses.
The jury was instructed to disregard the defendants appearance.
ii. Analysis
A defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jurys presence unless manifest need is shown. (People v. Duran (1976) 16 Cal.3d 282, 290-291; People v. Mar (2002) 28 Cal.4th 1201, 1216-1220.) Appellants argue the trial court abused its discretion because manifest need for restraint was not shown and because it did not make an individualized decision about the security risk posed by each of the defendants. As will be explained, even assuming the shackling order was improper, appellants have not shown prejudice.
Primarily, we are guided by People v. Anderson (2001) 25 Cal.4th 543 (Anderson). In Anderson, our Supreme Court found it unnecessary to even assess whether there was evidence demonstrating a manifest need to shackle Anderson during trial because "the record contains no hint that the physical restraints impaired the fairness of defendants trial and thus caused prejudice." (Id. at p. 596.) It explained, "we have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendants right to testify or participate in his defense." (Ibid.) The court determined that use of a leg brace necessarily was harmless because there was no evidence that the jury saw the restraint, defendant did not testify and there was no evidence or claim that the restraint influenced him not to do so.
The instant case is directly analogous toAnderson, supra, 25 Cal.4th 543. Even assuming for purposes of this discussion only that the shackling was impermissible, there is no indication in the record that the restraint impaired the fairness of the trial. First, it is highly unlikely that the jurors could have noticed the restraint. The tables where appellants sat were skirted with fabric, the shackles were taped to eliminate any rustling sound and appellants were not shackled together. Even if the jurors did glimpse a shackle, they were admonished to disregard the defendants appearance. We presume jurors followed their instructions. (Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 9; People v. Beach (1983) 147 Cal.App.3d 612, 629-630.) Second, there is no basis to conclude that the restraint impacted appellants ability to assist in their defense. They could stand and could freely communicate with counsel. The court expressly provided that if a defendant decided to testify, he would do so unrestrained and would walk to the jury box like all the other witnesses. In light of these facts, appellants speculation about possible prejudice they may have suffered is baseless. Accordingly, we conclude that the restraint was harmless. (Anderson, supra, 25 Cal.4th at p. 596; People v. Slaughter (2002) 27 Cal.4th 1187, 1212-1214.)
B. Admission of Rockets Redacted Statement
i. Facts
Lao Yang (Rocket) was a codefendant. He was interviewed by Detective Brenda Trobaugh in August 1999. The People proffered a redacted version of Rockets statement to the detective. Defense counsel objected on Aranda-Bruton (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 (Aranda-Bruton)) and other grounds. After extensive argument and further redaction, Detective Trobaugh testified about the contents of this interview, as follows: Rocket told her that he became a member of MBS in 1990 or 1991. He left MBS for a time but returned in 1997. Rocket was a driver for MBS. One evening Rocket drove Pa to a motel where "[t]he MBS" had a room. He could not have taken Pa home because "[h]e didnt want MBS to be mad at him." Rocket said that MBS is most known for "messing with girls." MBS pimped girls out "for fun." They "probably charged customers 50 to $ 60." The money received from pimping girls was used "[t]o survive on the streets," and "to pay for the [motels] and stuff like that." Rocket was not sure how long MBS had been pimping girls. He became aware of this activity when he returned to the gang in 1997.
During cross-examination of Detective Trobaugh, one of the defense attorneys explored what Rocket meant when he referred to "MBS" and "MBS guys." Counsel first referenced a remark in which Rocket had said that "he kicked the MBS guys out of the house." Then he asked the detective the following series of questions: "[W]hen [Rocket] was saying MBS, did you regard that at the time as all-inclusive of all members of MBS, or a few MBS people that may have been with him at that time?" Detective Trobaugh answered, "[t]he MBS who may have been with him at that time." Counsel continued, "You werent taking it in an exceptionally broad situation." She replied, "I didnt know who he was referring to." Counsel followed, "And he wouldnt tell you any names because he told you that wouldnt be cool, or whatever his terms were?" She answered, "Correct." Counsel pressed the point, "Didnt he say something it wouldnt be right for him to be a snitch, or something like that?" She responded, "Correct."
The jury was instructed not to consider Rockets statement against any of the other defendants (CALJIC Nos. 2.07 and 2.08).
ii. Analysis
The Aranda-Bruton rule is rooted in the confrontation clause of the Sixth Amendment to the United States Constitution. It prohibits introduction of extrajudicial statements made by a nontestifying codefendant in trials involving multiple defendants. (People v. Aranda, supra, 63 Cal.2d 518; Bruton v. United States, supra, 391 U.S. 123.) This prohibition is limited to facially incriminating statements that clearly inculpate the nontestifying defendant. (U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, 1361.) Redaction of the extrajudicial statement to eliminate all identifying references to a nontestifying codefendant may be sufficient to avoid Aranda-Bruton error. (People v. Fletcher (1996) 13 Cal.4th 451, 468.) Yet, Aranda-Bruton error has been found when, even after redaction, a codefendant is still unmistakably implicated on the face of the statement. (Gray v. Maryland (1998) 523 U.S. 185, 197; People v. Archer (2000) 82 Cal.App.4th 1380, 1388-1390.)
Appellants challenge the admissibility of the portion of Detective Trobaughs testimony in which she states that Rocket told her that MBS pimped girls in 1997 for $50 or $60 for fun and to obtain the money necessary for the gang to survive on the streets and to rent motel rooms. They argue that because all the defendants had stipulated that they were members, formers members or associates of MBS, "[a] juror need only look at counsel table to see whom Rocket was referring to [when he referenced MBS]. No lengthy process of inference was necessary." Based on this foundational premise, they contend that admission of this portion of Rockets statement violated their confrontation right. The Attorney General responds that generalized references to MBS were permissible because they did not necessarily incriminate appellants. Reasonable jurors could avoid drawing the inference that appellants were coparticipants designated in the confession because MBS had over 50 members; Rocket did not speculate how many MBS members were involved in pimping, and he did not connect any specific MBS members with any criminal activity. We agree with the Attorney General.
As a preliminary matter, we reject the Attorney Generals contention that this issue was not preserved for appellate review because defense counsel did not object while Detective Trobaugh was testifying. The Aranda-Bruton question was litigated before the detective took the stand and the record refutes the Attorney Generals assertion that appellants were satisfied with the final redacted version of Rockets statement. Extensive argument was held on two occasions concerning admission of Rockets statement and Aranda-Bruton objection was lodged both times. Bolos trial counsel raised this point initially, contending that since it had been stipulated that the defendants were MBS members, all references in Rockets statement to MBS are violative of the Aranda-Bruton rule because "theres a reasonable inference its these guys sitting here." Rockets counsel furthered this argument by asking the court to strike all references to MBS in the statement. During argument about the final redacted version of the statement, Moneys counsel objected to the contested portion of the statement on Aranda-Bruton grounds. Since objection had been interposed on this particular ground during trial when the court could rule on the question in its appropriate context, counsel was not compelled to reiterate the same protest when Detective Trobaugh testified in order to preserve the point for appellate scrutiny. (People v. Crittenden (1994) 9 Cal.4th 83, 127; People v. Cahill (1994) 22 Cal.App.4th 296, 309-310, fn. 3.)
Earlier, the court had ruled that when one defendant objects it will deem all the other defendants to join in the objection unless a defendant specifically states that he wants to be excluded.
We turn to the constitutional issue. In the abstract, we are presented with a fascinating question — in a case where multiple gang members are on trial, is gang membership a uniquely identifying factor, compelling redaction of all generalized references to the gangs activities? Does the answer differ depending on the size of the gang or the number of members who are on trial? For example, where defendants have admitted membership in a nationwide criminal gang such as the Hells Angels, can a statement be admitted in which a defendant generally discusses the activities of the group? What if the gang in question is strictly local or has few members?
Yet, since the efficacy of redaction is judged on a case-by-case basis (People v. Fletcher, supra, 13 Cal.4th at p. 456), we will confine this discussion to the facts before us. Numerous factors lead us to conclude that, in this particular case, generalized references to MBS did not infringe appellants confrontation right. Primarily, we rely on counsels colloquy with Detective Trobaugh concerning Rockets meaning when he used the term MBS. She testified that when Rocket said MBS or MBS guys he meant the specific MBS members he was with at the time and not all of the people who belong to MBS. However, Rocket would not divulge the names of any of those people to her and she could not identify these specific individuals. Thus, Detective Trobaugh did not know to whom Rocket was referring when he used the terms MBS or MBS guys. This testimony refutes appellants contention that when Rocket referenced MBS, the jury would necessarily have believed that he was referring to appellants. In addition to this crucial testimony, we add the facts that Detective Trobaugh also testified that MBS had 50 members in 1997; only 13 of them were on trial. This further reduces the chance that the jurors would associate Rockets use of the phrase MBS or MBS guys as a synonym for appellants. Rocket did not connect any specific MBS members with prostitution related activities. Also, the jurors were instructed not to consider this statement against the nontestifying codefendants. We presume that they followed this direction. (Richardson v. Marsh (1987) 481 U.S. 200, 211.) Finally, it is significant that although Rocket admitted that he was an MBS member in 1997, he was acquitted of all gang-related charges and enhancements. Thus, the jury affirmatively demonstrated that it was able to distinguish between gang membership and involvement in specific criminal activity. For all these reasons, we conclude that appellants were not unmistakably implicated by Rockets general references to MBS. Reasonable jurors could have avoided drawing the inference that Rocket was referring to appellants.
Furthermore, the detectives testimony was not inadmissible hearsay. It fell within the exceptions to the hearsay rule permitting admission of declarations against interest and declarations against penal interests (Evid. Code, §§ 1220 and 1230). Since Rocket admitted he was an MBS member, his remarks about the activities of the gang were not exculpatory and he did not shift blame onto codefendants.
C. Prosecutorial Misconduct During Closing Argument
Appellants have combed the prosecutors lengthy closing arguments and found several comments that they characterize as misconduct. Despite the fact that the prosecutors reminded the jurors at least three times that they were obligated to prove each element of every offense beyond a reasonable doubt, appellants assert that they misrepresented the applicable standard of proof. They also assert that the jury was impermissibly urged to reject defense arguments that were not echoed in the courts instructions. Finally, they argue that the prosecutors should not have insinuated that the defense acted unfairly by "attacking the witnesses credibility or the police techniques of investigation."
Objection was interposed to just two of the alleged instances of misconduct. As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless he interposed a timely objection on the same ground during trial and also requested that the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284.) We have assessed the remarks that were not challenged below and have determined that any harm arising from them easily could have been cured by appropriate judicial admonishment if timely objection had been interposed below. Accordingly, these claims were waived. (People v. Green (1980) 27 Cal.3d 1, 27-28.) We also reject the corollary contention that the failure to object constitutes ineffective assistance. Our high court previously has "indicated that a mere failure to object to evidence or argument seldom establishes counsels incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.) Even assuming that the challenged remarks were improper, their prejudicial effect "was undoubtedly minimal or nonexistent." (Ibid.) The challenged remarks are not shocking or inflammatory and they did not give rise to unfair prejudice. They are not even particularly persuasive. Counsel reasonably may have decided that objection would only call attention to an otherwise unmemorable line of thought. Just as in Ghent, "[t]he foregoing instances of prosecutorial argument, either singly or in the aggregate, were not so damaging or prejudicial to defendants case as to require a finding of incompetence. Counsel may well have tactically assumed that an objection or request for admonition would simply draw closer attention to the prosecutors isolated comments." (Id . at pp. 772-773.)
We turn to the remarks that were preserved for our scrutiny. First, appellants objected in a general fashion to the People "making reference to the fact that there is no evidence contrary to what shes saying, and its shifting the burden proving." The prosecutor replied, "Im just saying there is no contradictory evidence that means anything." The court stated, "the one I recall you using it on was not a shred of evidence the sex didnt occur, and it was a strict liability 288 charge." It impliedly overruled the objection, but noted that it found the prosecutors strategy "[a] little risky." Second, during argument on the topic of whether Bolo forcibly raped Linda C., the prosecutor reminded the jurors "that each element of every count or every crime has to be shown beyond a reasonable doubt." Then he discussed the elements of the offense of rape. On the topic of lack of consent, he argued: "In this case against the will of Linda [C.]. And if you look at that and if you say to yourselves, well, what evidence is there to indicate that it happened with her will in question. In other words, if she consented to it, what evidence is there of the fact that she consented?" Defense counsel objected to this remark, arguing that the prosecutor was changing the burden of proof. The court ruled, "I think it was just phrasing."
Appellants contend that the prosecutors references to the absence of contrary evidence misstated the burden of proof. We disagree; appellants tortured construction of these remarks is unreasonable. We do not believe that such references necessarily imply an attempt to shift the burden of proof onto the defense particularly when, as here, the prosecutors reiterated during their arguments that the People bear the burden of proving each element of every offense. Rational jurors would have understood such references to be nothing more than comments on the state of the evidence. It is not reasonably likely that the jury would have construed these comments in an objectionable fashion. (People v. Ayala, supra, 23 Cal.4th at p. 284.)
D. Instructional Challenges — CALJIC Nos. 10.00 and 2.90
i. CALJIC No. 10.00
The jury was instructed that one of the elements of forcible rape is that the act was accomplished by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury to the victim or another person. The Legislature has not provided a statutory definition of "force" for purposes of proving forcible rape. Deuces trial counsel offered the following definition of the term "force" as an addition to CALJIC No. 10.00: "The term `force means physical force that is substantially different from or substantially greater than that necessary to accomplish the sexual intercourse itself." CALJIC No. 10.00 was given in its standard form.
Appellants argue that the refusal to define the term "force" constitutes prejudicial error. The appellate courts are divided whether the term "force" in sex abuse cases arguably has a specialized meaning that is not readily known to the average lay juror. (Compare People v. Pitmon (1985) 170 Cal.App.3d 38, 52 with People v. Elam (2001) 91 Cal.App.4th 298, 306 (Elam).) The issue of whether the term "force" for the offense of forcible rape has a specialized meaning requiring sua sponte definitional instruction is currently pending before our Supreme Court in People v. Griffin (2002) 100 Cal.App.4th 917, review granted October 23, 2002 (S109734). Pending resolution of this conflict, we adhere to the view that the meaning of the term "force" as used in Penal Code section 261, subdivision (a)(2) is within the common understanding of jurors. Therefore, CALJIC No. 10.00 did not need amplification and the trial court did not err by declining to modify the standard instruction. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145.)
All statutory references are to the Penal Code unless otherwise specified.
We reason as follows: "The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required." (People v. Anderson (1966) 64 Cal.2d 633, 639 (Anderson).) In Anderson, our Supreme Court determined, in relevant part, that definitional instruction on the meaning of the term "force" was unnecessary in connection with a forcible robbery charge because the term does not have a "technical meaning peculiar to the law and [therefore] must be presumed to be within the understanding of jurors." (Id. at p. 640.) More recently, Elam, supra, 91 Cal.App.4th 298 concluded in the context of a sexual offense case that the term "force" does not have a technical meaning. The court explained:
"The force necessary in sexual offense case is `"`physical force substantially different from or substantially in excess of that required" for the commission of the sexual act. [Citations.] One nonlegal meaning of force is `to press, drive, attain to, or effect as indicated against resistance ... by some positive compelling force or action. (Websters 3d New Internat. Dict. (1993) p. 887, col. 2, italics added.) Another is `to achieve or win by strength in struggle or violence. (Ibid.) These definitions do not differ in any significant degree from the legal definition. It thus is doubtful whether the court ever has a sua sponte duty to define `force in a sexual offense case containing the element that it be accomplished against the will of the victim." (Elam, supra , 91 Cal.App.4th at p. 306.)
We find Anderson and Elam to be well reasoned and persuasive on this point. Since the term "force" does not have a peculiar legal meaning, definitional instruction was unnecessary and the court did not err by giving CALJIC No. 10.00 in its standard form.
In any event, the absence of definitional instruction is harmless. The courts instructions were not erroneous or misleading and force was not incorrectly defined in closing arguments. It is not reasonably likely that the jury misunderstood and misapplied the law. (People v. Smithey (1999) 20 Cal.4th 936, 980-981; People v. Avena (1996) 13 Cal.4th 394, 416-418.)
ii . CALJIC No. 2.90
Appellants argue that CALJIC No. 2.90, as revised in 1994, permitted conviction on a standard of guilt less than "beyond a reasonable doubt." We rejected this argument in People v. Light (1996) 44 Cal.App.4th 879 and dismiss it again for the same reasons. (See also, e.g., People v. Hearon (1999) 72 Cal.App.4th 1285, 1286.)
E. Replacement of Juror No. 1
Appellants argue that the trial court should not have investigated a complaint it received about Juror No. 1, and also contend that it erred when it subsequently replaced this juror because of his brothers death. Neither argument is persuasive; the court reasonably exercised its discretion in both instances.
i. Facts
The jury began deliberating on June 6, 2000. On June 12, the foreperson sent a note to the court asking, "What do we do about a juror who came in with extreme bias regarding women and girls in relations to sex[?] We are unable to reconcile this bias." The court sent a written inquiry asking for more details. In response, the foreperson provided the court with a letter written by Juror No. 11. The foreperson attached a note to this letter stating that Juror No. 11s concerns were shared by all of the other jurors. Juror No. 11 wrote, "[s]ince the beginning of the trial, Juror # 1 has stated many bias remarks. When deliberations begun, [J]uror # 1 automatically expressed that he thought the boys were innocent." Juror No. 11 listed 10 remarks allegedly demonstrating Juror No. 1s bias. Juror No. 11 also wrote that Juror No. 1 "interrupts the deliberation process," is not "on track with" the rest of the jury, and that he is a "blatant obstruction." The court questioned the foreperson about Juror No. 1 in the presence of counsel. The foreperson stated that Juror No. 1 exhibits an attitude that women are "more or less second-class citizens." He had made snide comments about the victims, such as "theyre all whores" and "[t]hat they should be grateful for being given shelter." Juror No. 1s understanding of what constitutes rape differed from the other jurors. He was not cooperating in the deliberations. The court sent the foreperson back to the jury room with direction to draw the jurors attention to CALJIC No. 17.41. The jury resumed its deliberations.
On Wednesday, June 21, a court employee received a telephone call at 8:08 a.m. from Juror No. 1. He notified her that he would not be in court that day because his brother had suffered a heart attack and was at Stanford Medical Center. Juror No. 1 said that he would call again. When court convened that morning, the trial judge stated that he knew that this jurors brother previously had been hospitalized locally after suffering a heart attack. The trial judge surmised that the transfer indicated that performance of an extraordinary procedure might be necessary. The judge expressed concern about Juror No. 1s ability to continue deliberations in this case: "This juror obviously felt and continues to feel that he should be at his brothers side. I dont know anything about the familial relationship, but its apparent to me there are a lot of unknowns about his ability to be here any day after today. He has not called back, so I cant provide any additional information." Counsel for defendants requested that the court wait before replacing Juror No. 1. One of the prosecutors reminded the court that it had replaced former Juror No. 8 during closing arguments because she was going to be gone for one day to accompany her mother during a medical procedure even though Juror No. 8 had wanted to remain on the jury. The court recessed until that afternoon to determine whether the jury had reached any verdicts and to wait for Juror No. 1 to telephone again. When the court reconvened, counsel for some of the defendants objected to going forward without Juror No. 1 because "weve had information from the jury that Juror Number One is the one party thats involved contrary to the other jurors, and I think to lose him would be a deficit from what were thinking." The court stated that the clerk had telephoned Juror No. 1s employer, who stated that the juror had left a voice mail message that day saying that his brother had a heart attack and he was going to Stanford to be with him. Since the court had not heard anything further from Juror No. 1, it recessed until the following day.
When the court reconvened on June 22, the judge stated that Juror No. 1 had telephoned yesterday at approximately 4:15 p.m. and had spoken with the court clerk. The juror said that his brother had passed away and that "he would have to have a few more days." The juror "said we would talk to him in the morning. Weve been calling all morning. He is not answering his phone." The court also had determined that the jury had not reached any signed verdicts prior to June 21. Defense counsel collectively objected to replacing Juror No 1, arguing that it was not unreasonable to recess deliberations for a few more days. The prosecutor submitted the matter to the court. The court ruled:
"In light of the length of the trial, the length of deliberations, the fact that we have alternates, the fact that Ive been unable to determine from Juror Number One the extent of his grieving period, its obvious there are going to be services planned, its obvious those services may or may not conclude before next week, which would mean an additional time to allow him to be gone for services. Its been my experience many people, the toughest time emotionally involving a death of a family member occurs after the services, when the reality is — finally confronts the person about their loss without the responsibilities of conducting yourself in public.
"I just think that its — it makes the most sense to impanel the alternate that we called yesterday. She is here. And give the jurors a [CALJIC No. 17.51] and have them get back in the jury room and get back to work."
The court advised the jurors that they were to disregard all past deliberations and to begin deliberating anew. They were told that former Juror No. 1 had been replaced because of a death in the family.
On July 7, the trial judge added the following information to the record:
"It was a death in the family, and I made a decision based on my knowledge of grieving and everything else involved, and I was pretty right on, because I read in the paper where his funeral was that following Tuesday, and we were right, he did have a mother, so now he was the surviving brother, and his brother that died had a couple of kids, so he was the surviving uncle, and all suppositions we entered into at the time seemed to be borne out.
"And he was also very grateful, when we talked to him and told him he was excused, seemed quite relieved."
ii. Analysis
"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct, as well as the ultimate decision whether to retain or discharge a juror, rests within the sound discretion of the trial court." (People v. Bradford (1997) 15 Cal.4th 1229, 1351.) "[A] trial courts inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jurys deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations. Additionally, the inquiry should cease once the court is satisfied that the juror at issue is participating in deliberating and has not expressed an intention to disregard the courts instructions or otherwise committed misconduct, and that no other proper ground for discharge exists." (People v. Cleveland (2001) 25 Cal.4th 466, 485.) "If any substantial evidence exists to support the trial courts exercise of its discretion pursuant to section 1089, the courts action will be upheld on appeal." (People v. Bradford, supra, 15 Cal.4th at p. 1351.)
In the present case, we discern no error in the courts decision to conduct a limited inquiry of the jury foreperson concerning the complaints about Juror No. 1. A juror is subject to discharge if he refuses to engage in the deliberative process (People v. Cleveland, supra, 25 Cal.4th at p. 485), or is shown to be actually biased. (People v. Compton (1971) 6 Cal.3d 55, 59.) Juror No. 11s letter and the note attached by the jury foreperson alerted the court to the possibility that Juror No. 1 was not properly discharging his obligations as a juror because he was biased against women and was not deliberating properly. These allegations were sufficiently serious to warrant further investigation. The manner in which the court proceeded was unobjectionable. The judge questioned the jury foreperson outside the presence of the other jurors. His questions focused on Juror No. 1s conduct and not on the content of the deliberations. Counsel was not permitted to quiz the foreperson. The court terminated its investigation immediately after it ascertained that the jurors unpopular opinions about women did not preclude him from fulfilling his role as a juror, that he was engaging in the deliberative process and that the jury was able to function. The courts procedure was not overly intrusive and fell well within the bounds of judicial discretion. (People v. Cleveland, supra, 25 Cal.4th at p. 485.)
We also discern no error in the trial courts decision to discharge Juror No. 1. Our Supreme Court has found that the death of a family member constitutes good cause to discharge a juror. (People v. Ashmus (1991) 54 Cal.3d 932, 986-987; In re Mendes (1979) 23 Cal.3d 847, 852.) The juror is not required to explicitly request that he or she be discharged; the court may infer a discharge request from the circumstances. (In re Mendes, supra, 23 Cal.3d at p. 852.) In this case, the court reasonably could infer from Juror No. 1s conduct on June 21 and 22 that he was requesting to be relieved from jury service. The illness and death of Juror No. 1s brother adversely affected his ability to function as a juror. Juror No. 1 did not come to court on June 21 or 22. He told a clerk on the afternoon of June 21 that he would require "a few more days" before he could return to court. He was unavailable on June 22 to clarify exactly how long a period was encompassed by this phrase. Since no verdicts had been reached and an alternate juror was available to replace Juror No. 1, there was no need to place the court system on hold and wait indefinitely for Juror No. 1 to return. It was evident to the trial judge based on his past experience and his observations of Juror No. 1s conduct, that this juror might not be ready to resume deliberations for an extended period of time. Appellants "cannot reasonably expect the court system to be placed in `park in the hope that an ostensibly favorable juror will return at some future time." (People v. Bell (1998) 61 Cal.App.4th 282, 289.) There is no evidence that the impetus for discharge of Juror No. 1 stemmed from the jurors views on the merits on the case. Therefore, we conclude that the trial court properly exercised its discretion by replacing this juror with an alternate. (People v. Ashmus, supra , 54 Cal.3d at pp. 986-987 [death of jurors mother good cause]; In re Mendes, supra, 23 Cal.3d at p. 852 [ death of jurors brother good cause].)
Appellants complaint that the trial court did not hold sufficient hearing prior to discharging Juror No. 1 is unpersuasive. Hearing is not statutorily required. (§ 1089; People v. Dell (1991) 232 Cal.App.3d 248, 256.) The trial court possesses discretion to determine what specific procedure to employ in determining whether to discharge a juror. (People v. Beeler (1995) 9 Cal.4th 953, 989.) The inquiry conducted by the court was sufficient under the circumstances. (People v. Roberts (1992) 2 Cal.4th 271, 325 ; People v. Bell, supra, 61 Cal.App.4th at p. 288.) It did not immediately discharge Juror No. 1 on June 21 when the juror failed to appear. Rather, it waited an entire day for the juror to provide updates about his availability. The court contacted the jurors place of employment and spoke with a supervisor. The court made repeated attempts to contact Juror No. 1 throughout the early morning hours on June 22 but he did not answer his telephone. Prior to determining whether to discharge the juror, the court heard and considered the arguments of counsel. Forcing Juror No. 1 to appear for a hearing "would have been pointless and perhaps callous." (In re Mendez, supra , 23 Cal.3d at p. 852.)
F. Sentencing Pursuant to Section 667.6, Subdivision (d)
Appellants assert that the trial court erred by sentencing them according to the terms of section 667.6 because the jury did not find that their offenses were committed against separate victims or on separate occasions. We disagree.
This contention recently was rejected in People v. Groves (2003) 107 Cal.App.4th 1227 (Groves). The court determined that the facts giving rise to sentencing under section 667.6 were not elements of the substantive crimes and found that due process principles do not require the necessary finding to be made by proof beyond a reasonable doubt. It explained:
"A criminal defendant has a federal constitutional due process right to have every fact necessary to conviction proven by proof beyond a reasonable doubt. [Citations.] However, the United States Supreme Court has held that in a sentencing context, the state may link the severity of punishment to the presence or absence of a factor that the prosecution need not prove by proof beyond a reasonable doubt. [Citations.] If the specific fact at issue is not an element of the crime but is a factor that comes into play only after the defendant had been found guilty of the charges beyond a reasonable doubt and no increase in sentence beyond the statutory maximum for the offense established by the jury is implicated, then the state may consider this factor based on a lesser standard of proof. [Citations.] The facts setting the maximum term of a sentence and the trial courts power to impose that sentence are not elements of the crime for purposes of federal constitutional law. Within the range of sentence authorized by the jurys verdict, a trial court may exercise its discretion and expertise to impose a sentence." (Groves, supra, 107 Cal.App.4th at pp. 1230-1231, fn. omitted.)
The court then rejected defendants argument that he had a federal due process right to have a jury determine whether he should be sentenced pursuant to section 667.6, reasoning:
"Groves also asserts that he had a federal constitutional right to have a jury — rather than the trial court — determine this issue. (See U.S. Const., 6th Amend.) If due process requires a sentencing factor to be established by a burden of proof beyond a reasonable doubt, then the issue must be submitted to a jury. [Citations.] However, as we have concluded that the reasonable doubt standard is not implicated in this case, neither does this sentence factor require a jurys input." (Groves, supra, 107 Cal.App.4th at pp. 1231-1232.)
We findGroves persuasive and adopt its reasoning and result. We decline to follow a disputed line of Illinois state law authority. Accordingly, we hold that due process principles do not preclude application of section 667.6 to appellants.
II. CONTESTED ISSUES AFFECTING SPECIFIC APPELLANTS
A. Denial of Motion to Substitute Counsel (Scissors)
Six months before trial, Scissors moved to substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118.) At the hearing on this motion, Scissors initially asserted that his appointed counsel was uninterested in his case. Further discussion revealed that Scissors was angry with his attorney and refused to cooperate with her because she had not been able to obtain a plea agreement on the terms he desired. Scissors had been offered a plea bargain by the prosecutor. His attorney counseled him to accept the offer because she believed "its the best option, its a wonderful deal." Scissors refused to accept the plea bargain because he wanted better terms and he directed counsel to attempt to reach such an agreement. His counsel made numerous efforts to secure such a deal. Not only did the prosecutor refuse to accept the terms Scissors proposed, but she also rescinded the original plea offer. Scissors was angry with his attorney because she did not obtain the plea bargain he wanted and because she told him that she believed he had little chance of being exonerated at trial. As a result, Scissors refused to communicate with or even look at his attorney. After ascertaining that Scissors did not have any further complaints, the court encouraged Scissors to work with his attorney and to get along with her. It then denied the motion. There is no indication in the record that Scissorss dissatisfaction with counsel interfered with her representation of him at trial or impaired her effectiveness.
Scissors challenges this ruling. His challenge is meritless.
"The governing legal principles are well settled. `"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. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.] `[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendants right to assistance of counsel. [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 603.)
Scissorss challenge fails because he has ignored the fundamental rule that a defendant may not manufacture a conflict with counsel, refuse to cooperate with him or her, and then cite the resultant breakdown in communication as the reason for substitution of counsel. (People v. Lindsey (1978) 84 Cal.App.3d 851, 860 (Lindsey); People v. Floyd (1970) 1 Cal.3d 694, 704-705 (Floyd).) In Floyd, our Supreme Court upheld denial of a motion to substitute counsel where "[t]he record makes crystal clear that the only substantial `conflict between Milton and his attorney was that Milton refused to cooperate in order to permit his attorney to prepare a defense consistent with a not guilty plea." (Floyd, supra , 1 Cal.3d at p. 705.) And in Lindsey, the appellate court upheld the denial of defendants motion to substitute counsel, explaining: "The record in the instant case amply supports the conclusion that whatever breakdown occurred between defendant and his counsel was caused by defendants intransigence and failure to cooperate. Such a showing is insufficient to support a motion to substitute appointed counsel." (Lindsey, supra , 84 Cal.App.3d at p. 860.)
The record in this case demonstrates that the pretrial conflict was caused by Scissorss refusal to cooperate with his attorney after he became angry with her. Just as in Lindsey and Floyd, the difficulties between them resulted entirely from Scissorss "intransigence and failure to cooperate." (Lindsey, supra , 84 Cal.App.3d at p. 860.) "`[T]here is no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendants whims." (Floyd, supra, 1 Cal.3d at p. 704.) Counsel could not force the prosecutor to accede to Scissorss demands. The trial court conducted a proper inquiry and did not abuse its discretion by denying the motion to substitute counsel.
B. Validity of Count 208 (Bolo)
Bolo was convicted in count 208 of violating section 186.22, subdivision (a) (participating in a criminal street gang). He argues that this conviction must be reversed because this count was never validly charged. We agree with the Attorney General that this issue was not preserved for appellate review.
There was testimony during the grand jury proceedings that Bolo was a MBS member and that MBS is a criminal street gang that is known for raping and pimping out young girls. Four indictments were returned against Bolo for violations of section 186.22, subdivision (a). A consolidated indictment was filed on January 24, 2000. Counts 12 and 62 charged Bolo with violating section 186.22, subdivision (a). He was not named in count 208, which also alleged a violation of this section. On April 11, 2000, another consolidated indictment was filed. Among other changes, it omitted counts 12 and 62 and added Bolo as a defendant to count 208. Bolo was arraigned on this indictment on the same day. Attorney Colin Kooyumjian waived formal arraignment and entered a not guilty plea on Bolos behalf. When the court took up "matters of law and procedure relating to amended consolidated indictments," Attorney Steven Crawford argued and submitted a section 1118.1 motion on Bolos behalf. No objection was interposed to Bolos addition as a defendant in count 208. After the trial was completed, a final consolidated indictment was filed. It largely mirrored the April 11, 2000 consolidated indictment.
It is an established rule that an amended pleading that is filed in an open court and draws no objection from the defendant may not be challenged for the first time on appeal. (People v. Beck (1945) 71 Cal.App.2d 637, 641; People v. Collins (1963) 217 Cal.App.2d 310, 313; People v. Walker (1959) 170 Cal.App.2d 159, 163-164.) Bolo did not object below on the ground now raised on appeal or otherwise contest his addition as a defendant to count 208. Applying this well-settled rule, we conclude that Bolo waived his right to assert error with respect to the amendment of the consolidated indictment.
Bolo does not deny that he had notice of the charge and failed to interpose timely objection. Rather, his appellate counsel dismissively writes in a single sentence of his reply brief, "[t]he claim of waiver does not fit well here, but rather it simply invites further litigation on a claim of ineffective assistance of counsel or prosecution misleading charging." This token response is not sufficiently developed to constitute a cognizable ineffective assistance of counsel or prosecutorial misconduct claim. Undeveloped points that are perfunctorily asserted without supporting argument or citation to relevant authority are not properly raised. (People v. Williams (1997) 16 Cal.4th 153, 206; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
C. Count 107 - Overt Act (Anthony, Deuce, Iron Man, Scissors, Sim)
All of the appellants except Bolo and Money were convicted of conspiring to commit pimping, pandering and procurement of a child under age 16 for lewd and lascivious acts as charged in count 107. May was the named victim. The sole overt act alleged in connection with count 107 was that May "had sexual intercourse with paying customers." During closing arguments, one of the prosecutors stated, "[t]heres one overt act, and that is [May] had sexual intercourse with paying customers." The jury was instructed that this was the overt act supporting this count and it specifically found this overt act to be true.
These five appellants attack the validity of this overt act, arguing that May was not a coconspirator and therefore she cannot have committed an overt act in furtherance of the conspiracy. As will be explained below, we agree that this overt act is invalid as a matter of law and that this defect compels reversal of their convictions in count 107.
Conspiracy is a distinct offense from the crime that is planned to be committed. (People v. Moore (1956) 143 Cal.App.2d 333, 340.) To sustain a conviction of conspiracy to commit a crime, there must be substantial evidence proving that there was an agreement between two or more people who have the specific intent to commit an offense, and that one or more parties to the agreement committed an overt act for the purpose of carrying out the object of the conspiracy. (People v. Cook (2001) 91 Cal.App.4th 910, 918; People v. Alleyne (2000) 82 Cal.App.4th 1256, 1260.) The overt act may be committed by any one of the conspirators, and when it is committed, all the members of the conspiracy are bound. (People v. Aday (1964) 226 Cal.App.2d 520, 534.) "[T]he requirement of an overt act is an element of the crime of conspiracy in the sense that the prosecution must prove it to a unanimous jurys satisfaction beyond a reasonable doubt." (People v. Russo (2001) 25 Cal.4th 1124, 1134.) Due process principles require the overt act to be pleaded with particularity. (People v. Cook, supra , 91 Cal.App.4th at p. 921; Feagles v. Superior Court (1970) 11 Cal.App.3d 735, 739-740.) Section 182, subdivision (b) provides that the accused cannot be convicted of conspiracy "unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence."
Count 107 named May as the sole victim of the conspiracy to pimp, pander and procure a child under 16 for lewd purposes; the verdict form identifies May as the victim and the jury found that she was under the age of 16 when she was procured. We do not believe that is it factually possible for May to conspire to procure, pander and pimp herself. Logically, May cannot be the sole victim of a conspiracy to procure/pander/pimp herself and also be a conspirator. Furthermore, we believe as a matter of public policy that child prostitutes are victims of conspiracies to procure/pimp/pander them and are not coconspirators or accomplices; they cannot conspire with their abusers to exploit themselves. In People v. Tobias (2001) 25 Cal.4th 327, our Supreme Court held that when a child under 18 has a consensual sexual relationship with a parent she is still a victim and not a perpetrator of the incest. A child in this situation can never be an accomplice and accomplice instructions are not appropriate. (Id. at p. 329.) The court explained that when an adult engaged in sexual acts with a minor the law considers the minor to be the victim and puts the burden on the adult to avoid the relationship. (Id. at p. 337.) Also, in People v. Pangelina (1981) 117 Cal.App.3d 414, the appellate court wrote, albeit in the context of explaining why there was an "affirmative legislative intent to punish prostitutes less severely than those arrested for pimping [citation], or pandering," that "[i]t has been understood that, rather than being accomplices or coconspirators of those charged with felony pimping or pandering, prostitutes are criminally exploited by such persons." (Pangelina, supra, 117 Cal.App.3d at p. 422.) Pangelina cited People v. Frey (1964) 228 Cal.App.2d 33, in which the Court of Appeal wrote, "[i]n a prosecution under section 266h ..., the prostitute whose earnings are taken is not an accomplice [citation]; and ... the woman who is induced or procured to become an inmate of a house of ill-fame is not an accomplice." (Frey at p. 52.) These authorities support the proposition that a child prostitute is a victim of the adults who procure and exploit her and that she is not a coconspirator or accomplice in her own abuse.
We recognize that this issue would have been more complex if the People had named as additional victims some of the other girls MBS prostituted. However, the People neither included such an allegation nor did it advance the theory at trial that May procured other girls for MBS or facilitated their exploitation. Thus, we are not called upon to resolve the question whether a child prostitute may conspire with her pimp to procure and pander other girls.
A prostitute may not be charged with the crime of conspiracy to commit prostitution. (Williams v. Superior Court (1973) 30 Cal.App.3d 8, 10, 14-15.)
The Attorney General does not attempt to explain how May could conspire with appellants to procure, pander and pimp herself. Rather, count 107 is treated as having alleged nothing more than a conspiracy among adults to commit prostitution, citing two cases in which adult prostitutes were deemed to be participants in conspiracies to commit prostitution despite the fact that they could not be charged with the crime of conspiracy. (See People v. Ambrose (1986) 183 Cal.App.3d 136, 139 [applied coconspirator exception to uphold admission of hearsay statements given by prostitutes in prosecution of pimp; they were participants in a conspiracy to commit acts of prostitution]; People v. Lewis (1963) 214 Cal.App.2d 799, 801 [evidence proved conspiracy to commit prostitution].) The Attorney Generals argument misses the mark. Count 107 did not allege a conspiracy to engage in prostitution; it was alleged that appellants conspired to procure a child under the age of 16 (specifically May), and to pander and pimp her. For obvious reasons, a conspiracy to procure and sexually exploit a child is not the functional equivalent of a conspiracy among adults to freely engage in prostitution. Thus, these authorities are inapposite.
For these reasons, we hold that the single overt act alleged and found true by the jury is invalid because May was the victim of the conspiracy to exploit her and was not a coconspirator. This defect compels reversal of the convictions in count 107. (People v. Brown (1991) 226 Cal.App.3d 1361, 1367, 1369, 1372 [this court reversed conspiracy conviction after invalidating the only overt act found true].) The People failed to satisfy the requirements of section 182, subdivision (b) because the only overt act alleged, relied upon, and found true is invalid. The fact that some of the appellants also were found guilty of the substantive offenses of pimping, pandering and/or procuring does not render the invalidity of this overt act a mere procedural technicality. The jury did not find that these substantive offenses were committed "in furtherance of the [charged] conspiracy" ( People v. Morante (1999) 20 Cal.4th 403, 416), and such a finding is not necessarily implied in the general verdicts. While there is evidence supporting this position, the jury did not make this crucial finding and we are not empowered to act in its place. Also, the People did not contend below that these substantive offenses should be considered as additional overt acts and appellants trial counsel did not structure the defense to account for the possibility that the substantive crimes would be considered as additional overt acts. People v. Paul (1978) 78 Cal.App.3d 32, relied on by the Attorney General, is distinguishable on this basis. One of the prosecutors argued in closing that the overt act supporting this count is that May had sex with paying customers and the jury was so instructed. The jury found this specific overt act true. In this circumstance, treatment of the substantive offenses as overt acts would not respect appellants due process rights. (Feagles v. Superior Court, supra, 11 Cal.App.3d at pp. 739-740; People v. Cook, supra, 91 Cal.App.4th at p. 921; see also People v. Mancebo (2002) 27 Cal.4th 735, 744-745.)
D. Change in Length of Term Imposed for Count 72 (Sim)
Appellants were sentenced on November 20, 2000. Counsel first agreed that there would be a "final hearing" to rule on the pending motion for new trial or to finalize time credit calculations. They also agreed that the appeal period would commence on the date of this final hearing. The court then sentenced appellants. Sim was sentenced on count 72 (pimping a minor under 16 years of age) as follows: "Under 1170.1 sentencing Count 72 will be the principal term. Being aware of the opportunity to balance mitigating and aggravating circumstances on Count 72, the Court chooses to impose a mid term sentence of six years to be enhanced by a two-year consecutive enhancement under 186.22." The total aggregate term of imprisonment imposed by the court was 16 years eight months. The court stated, "[i]f I did the math correctly its 16 years eight months." After the court finished imposing Sims sentence, one of the prosecutors asked a question about count 72: "I heard you selecting the mid term on that one. Wouldnt that be eight years, therefore 18 years and eight months[?]" The court asked, "Well, if you did the math better than I. Is that what it adds up to?" Iron Mans counsel and the prosecutor both answered, "Yes." The court replied, "Okay, 18 years eight months."
The prosecutor was incorrect. The midterm punishment for pimping a minor under 16 years of age is six years; the aggravated punishment is eight years. (§ 266h, subd. (b).)
The clerks minutes dated November 20, 2000 reflect that Sim was sentenced on count 72 to six years imprisonment plus a two-year enhancement. The letter M was circled next to this count, indicating that the court had selected the middle term of imprisonment. Adding together the total terms of unstayed imprisonment imposed for all of Sims offenses as listed in the minutes equals 16 years eight months. However, the handwritten numbers 18 and eight months were written next to the line indicating the total determinate years of imprisonment. It appears that the number 18 was originally written as 16 and had been converted to 18. The number 18 was circled. An interlineated number 18 was written to the immediate left of this circle.
The "final hearing" was held on January 8, 2001. The court stated, in relevant part: "The sentences imposed by the Court at the previous hearing will stand, with the exception of mathematical error made on [Sim]. The Courts math imposed an 18-year-eight-month sentence. The Court was referring to Count 72, which I spoke as a mid term sentence of six years rather than an aggravated term of eight years. Im going to reimpose that 1170 sentence on Count 72, which is the principal term under 1170, as an eight-year aggravated term. On that count the Court finds the circumstances in aggravation preponderate over any and all circumstances in mitigation. . . . [T]he aggravated term of eight years is imposed rather than the spoken six-year mid term without balancing. The math will remain the same, 18 years eight months."
The clerks minutes dated January 8, 2001, reflect only the change in Sims sentence on count 72. It indicates that Sim was sentenced to eight years imprisonment for count 72; the letter U was circled next to this count, indicating that the court selected the upper term of imprisonment.
Sim argues that he was sentenced on November 20 to the midterm of six years imprisonment on count 72 and that the court impermissibly lengthened his sentence on January 8 to the aggravated term of eight years. Sim is correct. Once the court affirmatively chose to impose the midterm for count 72 and the six-year sentence for this count was entered in the clerks minutes of the November 20 proceeding, federal and state constitutional double jeopardy concerns preclude the court from subsequently increasing Sims sentence on this count to the aggravated eight-year term. (People v. Karaman (1992) 4 Cal.4th 335, 350, fn. 16 (Karaman); see also People v. Nubla (1999) 74 Cal.App.4th 719, 727.)
Preliminarily, we mention that Sim did not object to the change in his sentence. Since the error involves an unlawful sentence and not the failure to properly articulate a discretionary sentencing choice, it is not subject to the waiver rule articulated inPeople v. Scott (1994) 9 Cal.4th 331, 356. (People v. Hester (2000) 22 Cal.4th 290, 295 ; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534.)
In Karaman, supra, 4 Cal.4th 335, our high court held that a sentencing court may exercise its judicial discretion to mitigate a defendants sentence prior to execution of the sentence. However, it flatly declared that "a valid sentence may not be increased after formal entry in the minutes." (Id. at p. 350.) "The reason, however, is not because the court has lost jurisdiction to modify its sentence, but because increasing the penalty subjects the defendant to double punishment for the same offense in violation of federal and state Constitutions." (People v. Nubla, supra, 74 Cal.App.4th at p. 727; Karaman, supra, 4 Cal.4th at p. 350, fn. 16.)
The sentencing court affirmatively selected the midterm punishment for count 72 when it sentenced Sim on November 20. The clerks minutes reflect that the court imposed the six-year midterm on this count. The numeral six was inscribed next to count 72; the letter M was circled. The midterm was a lawful sentencing choice and was recommended in the probation report. When the terms of imprisonment in the clerks minutes for all of Sims counts are totaled, they equal 16 years and eight months. Following and applying Karaman, we conclude that once Sim was validly sentenced to the six-year midterm for count 72 and this term was entered in the clerks minutes, the sentencing court was not authorized to subsequently "reimpose" an aggravated eight-year term for this offense. The facts that it had been agreed by the parties that the period for filing an appeal would not commence until the "final hearing" date and that custody credits would be finalized at this hearing did not deprive Sim of his federal and state constitutional protection against double punishment.
E. Counts 68, 72 and 73 (Anthony, Deuce, Iron Man)
Count 68 alleged pandering by the procuring of May during the third week of June 1997. Count 73 alleged pandering by the procuring of May from June 21, 1997 to August 19, 1997. Count 72 alleged the pimping of May from June 21, 1997 to August 19, 1997. Anthony, Deuce and Iron Man were convicted of all three counts. Anthony was sentenced to six years for count 68 plus an additional two years for the gang enhancement. He was sentenced to two years for count 72; the gang enhancement was stayed. On count 73, Anthony was sentenced to six years plus two years for the enhancement, but the punishment was stayed pursuant to section 654. Deuce was sentenced to three years for count 68 plus two years for the gang enhancement. He was sentenced to two years for count 72; the gang enhancement was stayed. On count 73, he was sentenced to six years plus two years for the gang enhancement, but the punishment was stayed pursuant to section 654. Iron Man was sentenced to two years for count 68; the gang enhancement was stayed. He was sentenced to two years for count 72; the gang enhancement was stayed. On count 73, Iron Man was sentenced to six years plus two years for the gang enhancement, but the punishment was stayed pursuant to section 654.
These appellants argue that one continuing pandering offense was improperly fragmented into two separate charges (counts 68 and 73). They are correct. A long line of authority clearly establishes that pandering and pimping are continuous conduct crimes. (People v. Healy (1993) 14 Cal.App.4th 1137, 1139; People v. Lewis (1978) 77 Cal.App.3d 455, 462 [pimping]; People v. White (1979) 89 Cal.App.3d 143, 151-152 [pandering]; People v. Thompson (1984) 160 Cal.App.3d 220, 224; People v. Moore (1986) 185 Cal.App.3d 1005, 1014-1015; People v. Vargas (1988) 204 Cal.App.3d 1455, 1461; People v. Dell, supra, 232 Cal.App.3d 248, 265-266.) Since pandering is a continuing offense, it was improper to break this crime into two counts. Count 73 more fully reflects the period of time during which appellants pandered May. Therefore, we select count 68 to be reversed.
The Attorney Generals reply was nonresponsive, possibly because of key typographical errors in this section of Iron Mans opening brief.
These appellants also contend that section 654 prohibits punishment for both pimping and pandering (counts 72 and 73), because both crimes were incident to one objective and had a single criminal intent, namely "to utilize [May] to engage in sex for money." We agree. The statutes prohibiting pimping and pandering seek to discourage prostitution. (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867.) The two offenses occurred at the same time and place and involved the same victim. It is clear from the entirety of the record that both crimes were part of one common scheme — to use May as a revenue source to finance MBS activities. The Attorney Generals argument that the two offenses had different objectives because appellants made May work as a prostitute to destroy her psychologically and make it easier to satisfy their own sexual desires is unconvincing. The weight of the evidence supports the position that appellants forced May to work as a prostitute for the revenue they would derive from her activities. Thus, we conclude that the two offenses are not severable. (See People v. DeLoach (1989) 207 Cal.App.3d 323, 336-338.)
III. SUFFICIENCY OF THE EVIDENCE ISSUES
The standard of scrutiny applied to sufficiency of the evidence arguments is axiomatic: "[o]n appeal the critical inquiry is `to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [Citation.] An appellate 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. [Citations.] In reviewing the evidence, our perspective favors the judgment." (People v. Matian (1995) 35 Cal.App.4th 480, 483-484 (Matian). "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (People v. Jones (1990) 51 Cal.3d 294, 314.)
As much of the Peoples evidence in this case consists of the victims testimony, we note at the outset that corroboration is not required to establish the offense of rape; her testimony is sufficient to prove the charge. (People v. Scott (1969) 270 Cal.App.2d 773, 776 (Scott); People v. Meredith (1968) 266 Cal.App.2d 467, 468.) Scott rejected the defendants complaint that this rule permits a woman to choose a man at random and have him committed to prison on the strength of her testimony: "There need be no more than one witness to sustain a conviction of rape. This is the type of offense, where, by its very nature, there is frequently no other witness than the prosecutrix." (Scott, supra, 270 Cal.App.2d at p. 776.)
A. Count 61 (Bolo, Deuce, Iron Man, Scissors)
Bolo, Deuce, Iron Man and Scissors were convicted in count 61 of aggravated false imprisonment. Implicitly acknowledging that the evidence adequately proves that they unlawfully restrained May, they contest only the jurys finding that the false imprisonment was aggravated. Their challenge is well founded.
This count arises out of the incident during which May was serially raped at 007s house on or about May 31, 1997. The evidence supporting the false imprisonment charge consists of Mays testimony that after she refused to have sex with 007, Deuce and others grabbed her by the arms, took her to a room and closed the door. A few minutes later, Scissors and Deuce returned. She was undressed. Deuce and Scissors told May and Iron Man to "hurry up" and left, taking Mays clothes with them. Iron Man raped her. May wrapped herself in a sheet. Deuce came back into the room, took away the sheet and then left. 007 came into the room and he raped her. Deuce and Bolo entered the room. Deuce was naked and his penis was erect. He was sticking his tongue out and wagging it at May. Bolo grabbed her from behind. While Bolo was holding her, Deuce approached. May bit him on the shoulder. After commenting that his penis had become "dead," he and Bolo left the room.
Section 236 defines the crime of false imprisonment as "the unlawful violation of the personal liberty of another." "If the imprisonment is effected without the use of violence, menace, fraud or deceit, it is a misdemeanor. The presence of one or more of these elements elevates the false imprisonment to a felony." (People v. Haney (1977) 75 Cal.App.3d 308, 313 (Haney).) In this context, violence means "`"the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint"" and menace means "`"a threat of harm express or implied by word or act."" (Matian, supra, 35 Cal.App.4th at p. 484; CALJIC No. 9.60.) "The acts must be done, the words must be said, with the intent of causing the confinement." (Haney, supra, 75 Cal.App.3d at p. 313.)
Matian, supra, 35 Cal.App.4th 480 is instructive. There, defendant sexually assaulted the victim in an office building. Afterward, she prepared to leave. Defendant grabbed her by the arm and yelled at her not to go. She retreated from defendant and sat in a chair. Defendant sat in a nearby office within sight of the victim. Each time she got up to leave, defendant glared at her and started to approach her. Defendant was convicted of felony false imprisonment, sexual battery by restraint and penetration with a foreign object. However, the appellate court reduced the felony false imprisonment conviction to misdemeanor false imprisonment. It found the evidence insufficient to prove the additional element of violence or menace that is necessary to elevate the false imprisonment offense to a felony. The appellate court concluded that grabbing the victims arm was insufficient to constitute violence above the force reasonably necessary to effect the restraint. Defendants acts of rising out of a chair and approaching the victim when she attempted to leave did not prove an express or implied threat of harm. There was no evidence suggesting that defendant raised his fist, made any threatening movements or verbally threatened the victim with physical harm. Since the evidence was more than sufficient to prove that defendant restrained the victims personal liberty against her will and this is a lesser included offense of felony false imprisonment, the appellate court modified the judgment to reflect a conviction of the lesser and necessarily included offense of misdemeanor false imprisonment. (Id. at pp. 485-488.)
While we may not agree with Matians conclusion that defendants conduct there was not menacing, the analysis of the applicable law is otherwise persuasive. Moreover, in our case, there was not the menacing action demonstrated in Matian.
Similarly, we find the evidence insufficient to support the jurys finding that the false imprisonment was effected by violence or menace above that necessary to accomplish the imprisonment. Deuces act of grabbing Mays arm to force her into the room does not constitute violence because the force involved in the act does not exceed the force required to cause the simple restraint. (Matian, supra, 35 Cal.App.4th at p. 485.) The record also does not show menace. As explained in Matian, "[t]he reported decisions upholding convictions for felony false imprisonment involving menace generally fall into two categories. In the first category of cases there was evidence the defend ant used a deadly weapon to effect the false imprisonment .... [¶] The second category of cases upholding convictions for felony false imprisonment involving menace presented evidence the defendant verbally threatened harm." (Matain, supra, 35 Cal.App.4th at pp. 485-486.) The People presented evidence in neither category. There was no testimony indicating that any of the appellants were armed. There is also no evidence of any threatening gestures or conduct intimating that May would be harmed if she attempted to leave the room. Since this was the first time May was assaulted by MBS members, there are no prior threats or attacks which would support an inference of an implied threat. Removing Mays clothes from the room is not inherently violent or threatening. The Attorney General relies on the violence of the sexual assault itself, arguing that the force inherent in these acts far exceeded the force needed to falsely confine her. This line of argument fails because there is no evidence that the sex acts were committed with the intent to falsely imprison her. (Haney, supra, 75 Cal.App.3d at p. 313.) Rather, the false imprisonment was intended to facilitate the sex crimes. Accordingly, we conclude that the evidence is insufficient to establish felony false imprisonment; appellants convictions in count 61 must be reduced to the lesser included offense of misdemeanor false imprisonment. (Matian, supra, 35 Cal.App.4th at p. 488.)
B. Counts 52 and 53 (Deuce)
As a result of his participation in this sexual assault on May, Deuce was convicted in counts 52 and 53 with attempted rape and attempted rape in concert. He challenges the sufficiency of the evidence supporting these convictions. This challenge is specious.
The record adequately supports the jurys conclusion that Deuce attempted to rape May. May testified that Deuce grabbed her by the arm and took her to an isolated room. He and Scissors took her clothes. After she was raped by Iron Man and 007, Deuce and Bolo entered the room. Deuces intention to rape May was made obvious by the facts that he was naked, his penis was erect, and he was sticking his tongue out and wagging it at her. Bolo grabbed May from behind. Deuce approached her. When Deuce got close enough for her to reach him, May bit him on the shoulder. Deuce commented on the fact that his penis had become "dead" and left. A reasonable fact finder could have determined that Deuce knew May did not want to have sexual intercourse with him before she bit him. She had previously refused to have sex with Iron Man, and she was struggling to free herself from Bolos grip while Deuce was approaching her. One could reasonably conclude that Deuce did not complete the rape because his penis became flaccid after May bit him, not because he had suddenly discovered she was unwilling.
The attempted rape in concert conviction also has adequate testimonial support. There is ample evidence showing that the sexual assault of May was a group effort and that Deuce acted in concert with other MSG members. Deuce was among the people who told May to have sex with Iron Man. When she refused, he took her by the arm and brought her into the room. After May was undressed, Deuce and Scissors told Iron Man and May to hurry. The jury reasonably could have interpreted this remark to mean that Deuce was anxious for his turn with May. He and Scissors took Mays clothes. When Iron Man and 007 finished raping May, Deuce and Bolo entered the room together. Bolo held a struggling May from behind while Deuce approached her. The entirety of this evidence adequately proves that the sexual assault was a joint effort.
C. Count 205 (Scissors)
Scissors was convicted in count 205 of aggravated false imprisonment. He acknowledges that the evidence is sufficient to support the misdemeanor level of this offense, but asserts that the aggravated finding is unsupported. We agree.
Count 205 occurred during the following incident: Annie testified that she was in a car with Scissors and other MBS members when Scissors pointed a handgun at her (he was convicted in count 201 of felony false imprisonment for this act). Annie went with them into a motel room because she felt that she did not have a choice. She did not want to be "shot by them or anything." Scissors grabbed her by the wrist, took her in the bathroom and had sexual intercourse with her (he was convicted in count 202 of having unlawful sexual intercourse with a minor for this act). After Scissors left the bathroom, Annie dressed, went back into the room and sat on the bed. She stayed in the room until the following morning. She did not ask if she could leave the room because she thought it would be a waste of time and nobody would take her home. She had been raped by Sim in a motel room on an earlier occasion. On that prior occasion, she had asked him if she could leave the room after the rape and he had told her no. She had not tried to leave the room then because there were too many guys in the room and one of them was blocking the door. Based on this earlier experience, she did not believe that she would be allowed to leave the room. Also, she did not ask to leave this time because she was scared that "the guys" in the room might "[r]ape me again."
Count 205 arose when Annie felt she could not leave the motel room after Scissors had sex with her in the bathroom. We agree with Scissors that the evidence does not support the jurys finding the false imprisonment charged in count 205 was aggravated. Neither Scissors nor any other male audibly directed Annie to remain in the room or gestured for her to stay. No one blocked the door. Scissors did not made any threats, either explicit or implicit. Scissorss act of grabbing Annie by the wrist when he took her into the bathroom does not constitute "violence." (Matian, supra, 35 Cal.App.4th at pp. 486-487.) While the rape itself was certainly violent, it was not committed with the intent of causing the false imprisonment. (Haney, supra, 75 Cal.App.3d at p. 313; Matian, supra, 35 Cal.App.4th at pp. 486-487.) Scissors did brandish a gun at Annie while they were in the car on the way to the hotel. However, there is no evidence that he brought the gun into hotel room and Annie did not mention the gun as a reason why she remained in the room after the sexual assault.
The Attorney General relies on past psychological and physical force. There are two flaws in this argument. First, there is no evidence that Annie believed Scissors was one of the participants in these prior acts. He was not among the group of males who were in the motel room when Annie was raped by Sim, it was Money who threatened her, and Annie did not testify that Scissors was one of the males who beat her. The Attorney General did not support the proposition that prior acts by someone other than the accused are considerable in this context. Moreover, there is no evidence that these prior acts were committed for the purpose of facilitating a subsequent false imprisonment of Annie at an unspecified future time and place. The Attorney Generals reliance on People v. Straight (1991) 230 Cal.App.3d 1372 is misplaced; this case did not involve a claim that the evidence was insufficient to support the verdict.
Since the evidence does not support the aggravated finding, Scissorss conviction in count 205 must be reduced to the offense of misdemeanor false imprisonment.
D. Counts 266, 277, 278, 283 and 284 (Bolo, Money, Sim)
These counts arise from the March 1998 incident in which Linda C. and Linda H. were isolated in a motel room and serially raped.
i. Bolo
Bolo was convicted in count 277 of forcibly raping Linda C. and in count 278 of forcibly raping Linda C. in concert. He was convicted in counts 283 and 284 of the aggravated false imprisonment of Linda C. and Linda H. Bolo challenges the sufficiency of the evidence supporting these convictions. While we agree that the evidence is insufficient to support the jurys conclusion that the false imprisonment of the girls was aggravated, it is adequate in all other respects.
We first assess counts 283 and 284. Bolo was present in the motel room when Money prevented Linda H., Linda C. and Pang from leaving. Linda H. testified that Bolo was one of the two men who dragged Linda C. into the bathroom. Linda C. testified that she was could not leave the bathroom because "they were all in the way," preventing her from reaching the door. This testimony adequately establishes the requisite deprivation of Linda C.s personal liberty. Linda H.s testimony that Bolo grabbed her by the hand and dragged her into the bathroom is sufficient to prove that he deprived Linda H. of her liberty.
Yet, the evidence does not support the jurys finding that the false imprisonment of either girl was aggravated. The Attorney General relies on two facts to support this finding: (1) Bolo dragged the girls into the bathroom, and (2) Bolo threatened that his friends would hit and cut Linda H. if she did not have sex with him. We are not convinced. Bolos act of grabbing the victims by the arm is not sufficient to constitute violence or menace. (Matain, supra, 35 Cal.App.4th at p. 485.) His threat to harm Linda H. is not relevant because it was not uttered with the intent of causing or furthering the imprisonment. It specifically related to Bolos demand for sex. (Haney, supra, 75 Cal.App.3d at p. 313.) The People did not show that Bolo was armed or that he threatened to hurt the girls if they attempted to leave the bathroom. Accordingly, Bolos convictions in counts 283 and 284 must be reduced to the offense of misdemeanor false imprisonment.
We now consider counts 277 and 278. Linda C. testified that after she was pulled into the bathroom, Nippy forced her to take off her clothes in the shower area and to have sex with him. After Nippy finished, Bolo had sex with her on the bathroom floor. Linda C. told Bolo that she "didnt want to do this," but he forced her to have sex with him anyway. Linda C. did not specify exactly how Bolo forced her to have sexual intercourse with him, replying to this question, "I dont know, just got forced." Even without corroboration, Linda C.s testimony that she told Bolo she did not want to have sex with him and that he forced her to do so is sufficient to support the rape conviction. (Scott, supra, 270 Cal.App.2d at p. 776.) Yet, Linda C.s testimony that the sexual intercourse was accomplished by force was partially corroborated by Linda H. She testified that Balloon and Bolo dragged Linda C. into the bathroom. She was swearing and telling them to leave her alone. They closed the door. Linda H. heard pounding on the door and then she heard Linda C. screaming. She was inside the bathroom for about 15 to 20 minutes. When Linda C. came out of the bathroom, she was crying. Linda C. sat next to Linda H. and told her that something bad had happened to her in the bathroom. Considered in its entirety, this testimony adequately supports the jurys determination that Bolo raped Linda C.
The evidence also supports the jurys conclusion that the rape was accomplished in concert with other MBS members. Bolos contention that there is no evidence that he "was acting `together with another person to effect the act of sexual intercourse," is based on a flawed premise. The purpose behind the increased punishment provided for by the "in concert" statute (§ 264.1) is to discourage gang-type sexual assaults. (People v. Adams (1993) 19 Cal.App.4th 412, 429; People v. Jones (1989) 212 Cal.App.3d 966, 969.) People v. Jones, supra, 212 Cal.App.3d 966, explains that it is not required that the two sexual offenders assist each other in the commission of the sexual offenses. Rather, the fact that the offenders successively raped the victim, each in the presence of the other, is enough to sustain an "in concert" finding. (Id. at p. 969.) This is exactly what happened here. Linda C. was in a motel room with a group of MBS members. She was dragged into the bathroom. Nippy raped her in the shower area. Once he finished, Bolo raped her on the bathroom floor. This serial sexual assault satisfies the "in concert" clause. (Ibid.)
ii. Money
Money was convicted in counts 283 and 284 of the aggravated false imprisonment of Linda C. and Linda H. and in counts 277 and 278 of aiding and abetting the rape and rape in concert of Linda C. He contends the evidence does not support the jurys finding that the false imprisonment was aggravated and also that the rape convictions must be reversed because the record does not establish that he had knowledge of and intent to further the sexual assault. We agree that the evidence does not support the aggravated finding but find it sufficient in all other respects.
Before either girl was dragged into the bathroom and raped, they tried to leave the motel room. Money prevented them from escaping. Linda C. testified that she could not leave the room because Money was blocking the door. Linda H. also testified that Money prevented them from leaving by blocking the doorway. Linda H. asked Money if they could go home. Money said, "no." Esther testified that when she attempted to leave the room Money told her that she could not go outside. She said something in response and Money permitted Crystal and her to leave the room. However, he said that the other girls could not leave. Crystal testified that Money was standing by the door. He allowed her to leave the room but only after he jokingly told her that she could not go. This evidence supports the jurys finding that Money unlawfully restrained Linda C. and Linda H.
Yet, we agree that the evidence does not support the jurys finding that the unlawful imprisonment was aggravated. While Money undoubtedly restrained the two girls by preventing them from leaving the motel room, there is no evidence that he touched them, threatened them or used a weapon during the commission of this offense. Therefore, his convictions on counts 283 and 284 must be reduced to the offense of misdemeanor false imprisonment.
We now turn to consideration of the evidence supporting Moneys convictions for aiding and abetting the rape/rape in concert of Linda C. "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) Aiding and abetting may be proved by circumstantial evidence such as presence at the scene of the crime, companionship with the perpetrators and conduct before and after the offense. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) We agree with the Attorney General that "Money was an integral part of the plan" to sexually violate Linda C. He prevented the girls from leaving the motel room. He is a gang associate with the actual perpetrators of the rapes. Moneys presence and participation in the commission of similar sexual assaults prior to this date is strong circumstantial evidence proving that he possessed knowledge of and intended to facilitate the rapes when he blocked the door. By the time this attack occurred in March 1998 MBS members had established a pattern of isolating young girls and then sexually assaulting them. Money was present when Cindy was taken into a bathroom and raped by Anthony and Iron Man. Likewise, Judy testified that Money was present when Deuce took her into the bathroom and raped her. F. testified that she was in a motel room with some MBS members when Money grabbed her by the wrist, pulled her into a bathroom and raped her. May testified that on two occasions Money told her to go to the bathroom and they had intercourse on the bathroom floor. Considered in its totality, the evidence fully supports the conclusion that Money knew his gang cohorts would rape Linda C. after he prevented the girls from leaving the room and that he intended to help them accomplish the sexual assault.
iii. Sim
Sim was convicted in count 266 of raping Linda H. and in count 284 of aiding and abetting the aggravated false imprisonment of Linda H. He argues that the evidence does not support either conviction. We agree that the evidence does not support the aggravated finding, but find the rest of Sims arguments unconvincing.
The evidence is more than sufficient to support a finding that Sim possessed the requisite knowledge and intent to assist the false imprisonment of Linda H. Sim unplugged the telephone after Money refused to let the two girls leave the motel room. While Sim contends that his only intent when he unplugged the telephone was to prevent Maney from telephoning them anymore because she had been repeatedly telephoning the room, a reasonable fact finder could have concluded that Sim unplugged the telephone because he wanted to prevent the girls from alerting Maney or anyone else of their need for assistance. Furthermore, both girls testified that Sim was one of the men who raped them that night. Finally, Sim actively participated in MBSs pattern of taking young girls to motel rooms and sexually assaulting them. Sim was in the motel room when Annie was taken into the bathroom and raped by Scissors. Sim was also in the motel room when Cindy was taken into the bathroom and raped by Anthony and Iron Man. In fact, at one point during this particular sexual assault Sim came into the bathroom and tried to touch Cindys breasts. Sim was in the motel room on two occasions during which Judy was sexually assaulted by various MBS members.
Yet, we agree that there is insufficient evidence to support the jurys finding that the false imprisonment was aggravated. As explained above, the People did not prove that the false imprisonment was accomplished by violence or menace. There is no evidence that a weapon was used in the commission of this offense, or that anyone touched or threatened the girls in order to accomplish the false imprisonment. Accordingly, Sims conviction in count 284 must be reduced to the offense of misdemeanor false imprisonment.
We now consider whether the evidence supports the jurys conclusion that Sim raped Linda H. Essentially, Sim argues that because Linda H. did not actively resist him, she was not raped. We summarily reject this line of argument. A victims failure to resist is no longer relevant to the issue of force or consent. (People v. Iniguez (1994) 7 Cal.4th 847, 854-859.) "The law has outgrown the resistance concept; a person demanding sexual favors can no longer rely on a position of strength which draws no physical or verbal protest." (People v. Bermudez (1984) 157 Cal.App.3d 619, 624.)
A rape is an act of sexual intercourse accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate bodily injury. The evidence amply supports the conclusion that the sex was accomplished by duress. People v. Senior (1992) 3 Cal.App.4th 765 sets forth the salient principle:
"As the jury here was instructed, `duress has been defined as `a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to first, perform an act which otherwise would not have been performed, or, second, acquiesced [sic] in an act to which one otherwise would not have submitted. As this court recognized in People v. Superior Court (Kneip) ( 1990) 219 Cal.App.3d 235 , duress involves psychological coercion. (Id. at p. 238.) Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (People v. Senior, supra, 3 Cal.App.4th at p. 775.)
Linda H. was a 14-year-old virgin when she was held captive in a motel room by a group of older, larger gang members. She saw Linda C. dragged into a bathroom and heard her pounding on the door and screaming. When she came out of the bathroom, she was crying and she told Linda H. that something bad had happened to her in the bathroom. About an hour later, Bolo dragged Linda H. into the bathroom. He threatened to hit and cut her if she did not have sex with him. When Linda H. came out of the bathroom, Sim told her in a mean voice that she must have sex with Z. When she asked him how he could do this to her, he told her that he did not care, and that he was doing this for his boys. Z dragged her into the bathroom and had sex with her. Linda H. testified that she did not struggle with Z because she feared his friends would hurt her. Her fear was certainly reasonable because Bolo had explicitly threatened her with harm if she did not have sex with him. Immediately after Z finished having sex with her, Sim approached her. She did not want to have sex with Sim and told him so by asking him why he was doing this to her. The jury reasonably could have concluded that the atmosphere in the motel room was so coercive that Linda H. felt compelled to submit to Sim and have sex with him against her will. Thus, count 266 stands.
E. Counts 160, 177 and 179 (Anthony)
Anthony was convicted in counts 160 and 177 of raping Cindy on two different occasions and in count 179 of forcibly committing a lewd and lascivious act on her. He challenges the sufficiency of the evidence proving that the sex was nonconsensual. The attack is baseless.
Count 160 arises out of a serial sexual assault in a motel bathroom involving Anthony, Sim and Iron Man. Cindy testified that she tried to stop Anthony from having sex with her by pushing him off her and repeatedly telling him to stop. This testimony adequately establishes that the sex was nonconsensual. (Scott, supra, 270 Cal.App.2d at p. 776.)
Counts 177 and 179 both arise out of the following incident. Soon after the sexual assault described above, Cindy was in a motel with Anthony, Iron Man, Sim and Deuce. Anthony dragged Cindy into the bathroom and had sex with her. Cindy told him to stop and she tried to physically fight with him. She was unable to prevent sexual penetration. Eventually, he "kind of stopped," because of her continued resistance. Cindys testimony that she told Anthony to stop and fought with him proves that the sex was nonconsensual. Since the crime of rape is complete when penetration occurs, the fact that Anthony eventually terminated the sexual assault because of her resistance does not excuse him from criminal liability for the nonconsensual penetration.
In an attempt to convince us to reject Cindys testimony, Anthonys appellate counsel disparages her character by pointing out that Cindy became an MSG member and that she "actively engaged in prostitution." We reject this attack on the victim and are surprised that counsel would engage in such tactics on appeal, given that credibility issues are reserved for the trial court. The unstated insinuations of counsels argument are that wild girls who associate with gang members lie and even may deserve to be sexually assaulted. Such legally erroneous argumentation has no place in appellate briefing. It is axiomatic that credibility determinations are made by the jury. (People v. Jones, supra , 51 Cal.3d at p. 314.) Cindys testimony is neither impossible nor inherently improbable and therefore is sufficient to prove disputed factual points. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
F. Count 6 (Anthony)
Anthony was convicted in count 6 of rape in concert. This conviction arises from the following incident: Anthony told Judy to have sex with 007. She refused. He took Judy by the hand and led her into an isolated room. He told her to undress. When Judy refused, he undressed her, took her clothes and left the room. 007 entered the room and raped Judy.
Anthony asserts that Judys testimony is legally insufficient to prove that she was forcibly raped because she was an unconvincing witness. This contention does not merit extended consideration. We reiterate that credibility determinations are made by the trier of fact and that the testimony of a single witness is sufficient to prove a disputed fact. (People v. Jones, supra, 51 Cal.3d at p. 314; People v. Allen, supra, 165 Cal.App.3d at p. 623.) Judy testified that she refused Anthonys order to have sex with 007. She also told 007 that she did not want to have sex with him. She tried to push 007 off her the entire time that his penis was inside of her vagina. 007 is about twice her size. Since Judys testimony is neither impossible nor inherently improbable, it constitutes substantial evidence proving that 007 raped Judy.
Anthony also argues that the record lacks substantial evidence proving that he intended to facilitate 007s rape of Judy. Again, we disagree. Criminal liability for rape in concert can occur even if the accused is not present when the perpetrator commits the sexual assault. (See, e.g., People v. Farr (1997) 54 Cal.App.4th 835, 839-842.) The jury reasonably could have concluded that when Anthony told Judy to have sex with 007, led her into an isolated room, undressed her and took away her clothes, he demonstrated the requisite knowledge and intent.
IV. ISSUES THAT HAVE BEEN CONCEDED BY THE ATTORNEY GENERAL
A. Lesser Included Offenses (Bolo, Iron Man, Money, Scissors, Sim)
"[M]ultiple convictions may not be based on necessarily included offenses." (People v. Pearson (1986) 42 Cal.3d 351, 355.) An offense is necessarily included in another if the statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater offense or if the charging allegations of the pleading include language that describe the greater offense in such a way that if it is committed, the lesser offense must necessarily be committed. (People v. Clark (1990) 50 Cal.3d 583, 636.) "The remedy where a defendant has been erroneously convicted of both the greater and the lesser crime is reversal of the offense carrying the less serious punishment." (People v. Gonda (1982) 138 Cal.App.3d 774, 778.)
Bolo and Money argue that their convictions in count 277 for raping Linda C. must be reversed because this is a lesser included offense to their convictions in count 278 for raping Linda C. in concert. Likewise, Iron Man argues that his conviction in count 41 for raping May must be reversed because it is a lesser included offense to his conviction in count 42 for raping May in concert, and that his conviction in count 218 for raping P. must be reversed because it is a lesser included offense of his conviction in count 219 for raping P. in concert. We agree that under the facts presented here, these appellants could not have committed the greater offense of rape in concert without having committed the lesser offense of rape.
Iron Man argues that his conviction in count 59 for committing a lewd act on May must be reversed because it is a lesser included offense of his conviction in count 43 for committing a forcible lewd act on May and that his conviction in count 221 for committing a lewd act on P. must be reversed because it is a lesser included offense of his conviction in count 220 for committing a forcible lewd act on P. Sim contends that his conviction in count 193 for committing a lewd act on Annie must be reversed because it is a lesser included offense of his conviction in count 192 for committing a forcible lewd act on Annie. Not only does the Attorney General correctly concede these points but it also concedes that Scissorss conviction in count 199 for committing a lewd act on Annie must be reversed because it is a lesser included offense of his conviction in count 198 of committing a forcible lewd on Annie. It is established that committing a lewd act in violation of section 288, subdivision (a) is a lesser included offense to committing a forcible lewd act in violation of section 288, subdivision (b)(1). (People v. Ward (1986) 188 Cal.App.3d 459, 472-473.)
The Attorney General also concedes that the force or violence finding should have been stricken from count 199. The trial court ordered this finding to be stricken but the order was not carried out.
Since the jury found appellants guilty of both the greater and lesser offenses and the evidence supports the verdicts on the greater offenses, the lesser crimes must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.)
B. Additional Sentencing Errors (Scissors)
Scissors argues that the court mistakenly sentenced him to three years imprisonment on count 142 based on the charged offense, violation of section 288a, subdivision (c), rather than the lesser crime that was found by the jury, violation of section 288a, subdivision (b)(1)). The record supports Scissorss position. When sentencing Scissors on count 142, the court ruled that "a three-year mitigated term will be imposed for the same stated reasons, fully separate and consec to Count 44." However, this punishment applies to violation of section 288a, subdivision (c)(2). The mitigated term of imprisonment for violation of section 288a, subdivision (b)(1) is 16 months; a three-year term of imprisonment is the aggravated punishment for violation of this offense. The court did not find any aggravating circumstances. Also, since it did not make a finding that force was used, it did not have a basis to subject him to fully consecutive sentencing.
Scissors also argues that the court erred by failing to stay the term of imprisonment imposed for count 202 because it punished him for this act when he was sentenced to three years imprisonment for count 197. We agree. Scissors was convicted in count 197 of forcibly raping Annie and in count 202 of having unlawful sexual intercourse with Annie in violation of section 261.5, subdivision (c). Both crimes related to the same sex act. Section 654 prohibits punishment for two offenses arising from the same act. (Neal v. State (1960) 55 Cal.2d 11, 18.) This conclusion renders moot Scissorss claim that the court erred by imposing consecutive terms on both counts 201 and 202.
Finally, Scissors argues that he is entitled to an additional day of presentence credit. His calculations are correct; the record establishes that he is entitled to 790 days of presentence credit.
SUMMARY
Due to the complexity of this opinion, we have summarized our conclusions as they apply to each of the appellants:
I. Anthony — Counts 68 and 107 are reversed; section 654 applies to counts 72 and 73.
II. Bolo — Count 277 is reversed; counts 61, 283 and 284 are reduced to misdemeanor false imprisonment.
III. Deuce — Counts 68 and 107 are reversed; count 61 is reduced to misdemeanor false imprisonment; section 654 applies to counts 72 and 73.
IV. Iron Man — Counts 41, 59, 68, 107, 218 and 221 are reversed; count 61 is reduced to misdemeanor false imprisonment; section 654 applies to counts 72 and 73.
V. Money — Count 277 is reversed; counts 283 and 284 are reduced to misdemeanor false imprisonment.
VI. Scissors — Counts 107 and 199 are reversed; counts 61 and 205 are reduced to misdemeanor false imprisonment; section 654 applies to counts 197 and 202; he must be sentenced on count 142 for violating section 288a, subdivision (b)(1); he is entitled to 790 days of presentence credit.
VII. Sim — Counts 107 and 193 are reversed; his aggregate term of imprisonment may not exceed 16 years and eight months.
These conclusions necessitate resentencing. The court may reconsider all its sentencing choices and it may entirely restructure appellants sentences. The total aggregate term of imprisonment that is imposed at resentencing may be equal to but may not exceed the lawful total aggregate term of imprisonment that was originally imposed. (People v. Savala (1983) 147 Cal.App.3d 63, 69; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556-1558; People v. Kelly (1999) 72 Cal.App.4th 842, 846-847; People v. Castaneda (1999) 75 Cal.App.4th 611, 613-615.)
DISPOSITION
The judgments are reversed and the matter is remanded to the superior court for further proceedings consistent with this opinion.
WE CONCUR: Wiseman, J., Levy, J.