People v. Rivas CA2/3 ( 2023 )

Filed 7/7/23 P. v. Rivas CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317059
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA488711)
v.
JOAQUIN ARMANDO RIVAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed in part,
vacated in part, and remanded.
Alex Green, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant Joaquin Armando Rivas kidnapped victim
Jacqueline T. and repeatedly sexually assaulted her. A jury
convicted him of forcible oral copulation, rape, sodomy, sexual
penetration, and kidnapping. The trial court sentenced him to
250 years to life. On appeal, Rivas challenges the trial court’s
exclusion of impeachment evidence, the sufficiency of the
evidence supporting one of the forcible oral copulation counts, the
trial court’s refusal to instruct the jury on two lesser sodomy
offenses, and the trial court’s imposition of consecutive sentences
under the One Strike law (Pen. Code, § 667.61).1 We agree that
the trial court erred in imposing ten consecutive sentences under
the One Strike law and remand for resentencing. In all other
respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Rivas kidnaps Jacqueline
At around 9:00 p.m. on July 17, 2020, Jacqueline was on
her way to a local market when she passed Rivas, who
approached her and struck up a conversation. Rivas offered to
give Jacqueline a ride to the market, which she accepted.
However, after first stopping at a liquor store, Rivas began
driving in the wrong direction. Jacqueline grew worried. She
told Rivas to pull over to let her out. Instead of pulling over,
Rivas grabbed Jacqueline by the hair and placed a rag smelling of
ammonia over her face. She lost consciousness.
1 All undesignated statutory references are to the Penal
Code.
2
B. Sexual assaults
First couch
When she awoke, Jacqueline was lying naked on a couch
with zip ties around her neck and arms in such a way that if she
lowered her arms, the zip tie around her neck would tighten.
Rivas was yelling at her and hitting her. He “[f]lip[ped her] over
on [her] knees near the couch on the floor.” He placed his hands
around her neck and on her mouth. Jacqueline struggled while
on her knees, with her face in the couch. As Rivas held her down
from behind, Jacqueline felt around on the couch for anything she
might use to defend herself. She grabbed her torch lighter and
burned Rivas. He then hit her in the temple and on the side of
her face. He proceeded to choke Jacqueline for “[m]inutes” until
she “lost [control of her] bowels,” “peed all over,” and “los[t]
consciousness.” When she regained consciousness, Rivas inserted
something into her vagina “a couple of times,” but she “d[idn’t]
know what it was.”
Second couch
Rivas then grabbed Jacqueline by the hair and dragged her
to another couch in the living room. He replaced or adjusted the
zip ties around her neck and arms. He forced her on the floor,
bent her over, had sex with her “vaginally and anally, and flipped
[her] over and ha[d] it vaginally.” The zip ties crushed
Jacqueline’s windpipe and suffocated her until she urinated
again.
Bedroom
At some point, Rivas “got mad,” grabbed Jacqueline by the
hair, and “dr[agged her] to the bedroom.” He threw her onto the
bed, told her not to move, and left the room. While he was gone,
Jacqueline—still zip tied—managed to grab a small pair of green
3
scissors from a backpack she saw hanging in the bedroom closet.
She hid the scissors in the “back of [her] hair” and returned to the
bed. Rivas returned soon after and proceeded to “hav[e] sex with
[her] as many ways as he . . . saw fit,” vaginally, anally, and
orally. He penetrated her vagina and her anus with his penis.
Putting his penis in her mouth was “one of the last things he did”
on the bed. While she was lying on the bed with her head
hanging over the edge, Rivas stood over her, pulled her hair back,
and forced his penis into her mouth “[s]everal times, just like he
put his penis everywhere else several times.” Jacqueline
repeatedly turned her head “to protect the back of [her] throat.”
Rivas repeatedly told her to stop turning her head, but she
“turned [her] head anyway.” According to Jacqueline, Rivas
broke her tooth and tore the skin under her tongue.
C. Escape
Jacqueline again lost consciousness and later “woke up in
[her] own excrement.” Rivas was asleep. Jacqueline took the
scissors out of her hair and cut one hand free. She also cut off an
ankle monitor she was wearing, and slipped it under the box
spring of the bed with the hope that law enforcement would
locate and save her.2 When Rivas woke up, she told him,
“ ‘[p]lease let me pee,’ ” and he dragged her to the bathroom.
Rivas allowed Jacqueline to wash off. He poured buckets of
water on her in the bathtub. The home lacked running water
except for a faucet on the front porch. Rivas told Jacqueline “it
2
As discussed in further detail below, Jacqueline testified
that she was convicted of a felony in November 2020. Prior to the
conviction, and at the time of the incident, she was released on
her own recognizance and was required to wear an ankle GPS
monitor as a condition of her release.
4
would be over for [her] soon,” instructed her not to move, and left
the bathroom.
As soon as Rivas left, Jacqueline left the bathroom and
found a door to exit through the back of the house. On her way
out, she grabbed clothes that were sitting on a sink and put them
on as she ran away. She ran down the driveway, four houses
down the street, and hid in a yard, behind a hedge. It was about
6:30 a.m. on July 18, 2020. She knocked on the windows of the
house next to where she was hiding, but no one responded. She
dozed off due to “an adrenaline dump after everything [that had]
happened.”
Jacqueline emerged from the bushes at 9:30 a.m. She
made her way to Western Avenue, a major thoroughfare, where
she tried to flag down three different police vehicles. With no
success and no phone, Jacqueline returned to her friend’s RV,
where she hid until nighttime. After nightfall, Jacqueline located
an acquaintance who let her use his phone to call 911.
D. Investigation
Jacqueline’s physical examination
Jacqueline was examined at a rape treatment center on the
morning of July 19, 2020. Although her neck was not visibly
injured, she complained of “difficulty swallowing,” which was
“consistent with somebody who has been strangled.” She also
had pain in her throat and all over her body, including vaginal
and anal pain. Her eyes were bloodshot from burst blood vessels,
or “petechiae,” which was also consistent with strangulation. She
had bruises on her upper cheek and along the top of her “eyelid
area,” consistent with strangulation or blunt force trauma to the
face, “like being punched in the face.” Petechiae were also
present underneath her tongue and in the back of her throat,
5
consistent with blunt force trauma and forced oral copulation.
She reported tasting blood in her mouth during the attack and
thought her tooth may have cut Rivas’s penis. She had “multiple
little lacerations to [her] fingers,” bruises on both wrists, and an
abrasion on her wrist from the “top layer of the skin ha[ving]
been sheared off.”
Jacqueline also suffered vaginal injuries. She had a
bruised inner labia, consistent with blunt force trauma to the
vaginal area. She also had a laceration in the vaginal canal that
was consistent with “something cutting the inside of [her]
vagina.”
Jacqueline had “some possible bruising” inside her anus,
but the examining nurse did not label it an injury because she
was not “100 percent sure” given that the anus “can have
differences in coloration.” The nurse practitioner explained at
trial that “[s]ometimes bruising and musculoskeletal injuries
won’t show up for a few days,” such that “patients will develop
more bruises after . . . they come see us.”
Jacqueline tested positive for amphetamines, cannabinoids,
and opiates. At trial, she admitted smoking meth in the two days
before she met Rivas, and again when she returned to the RV
after her escape.
Rivas’s physical examination
After his arrest, law enforcement took Rivas for
examination at the rape treatment center. When asked about
any genital injuries, Rivas told the nurse he had none. The
nurse, however, found three fresh scratches or abrasions on the
head of his penis. Such abrasions could be caused by something
hard enough to scrape and remove the top layer of skin, including
a tooth. Rivas also had an abrasion on his upper right clavicle.
6
Biological and other physical evidence
The examining nurses took various swabs from Jacqueline
and Rivas during their rape examinations. The vaginal swab
from Jacqueline contained sperm, but insufficient DNA to
determine whether it belonged to Rivas. Sperm was also detected
in the cervical swab, but the male DNA present could not be
analyzed. No sperm was detected in the anal swab. Although
the anal swab was “ ‘male DNA inclusive,’ ” it did not produce
results that could be interpreted. No DNA or sperm was detected
in the rectal swab. The swab taken from Jacqueline’s mons pubis
contained male DNA that was incomplete, but largely consistent
with Rivas’s DNA.
During a pre-booking search, law enforcement found a
piece of a zip tie in the pocket of Rivas’s pants. His car contained
“gloves, bottles, water bottles with liquids in them, [and] rags.”
When investigators searched Rivas’s home, fans were blowing,
sheets covered the windows and couches, and plastic covered the
countertops in the kitchen. Bottles filled with liquid and a bag of
cloth sat on a table. There were “cleaning materials throughout
the house,” as well as zip ties of multiple sizes.3 Buckets of water
surrounded the bathtub. The search also yielded a pair of green
scissors and a backpack hanging in the bedroom closet. Blood
and semen stained Rivas’s sheets and pillowcase.
3
At trial, the owner of the house testified that Rivas was
helping renovate the property. Zip ties and other construction
materials were there for their work. The owner further testified
that at the time of the incident, Rivas was working in food safety
and had cleaning supplies he used to teach classes about proper
cleaning methods, and for making hand sanitizer.
7
Although law enforcement did not find Jacqueline’s ankle
monitor in Rivas’s house, the monitoring system reported the
device was near the home on July 18, 2020, and showed the same
coordinates on July 21, 2020. Surveillance cameras at the liquor
store and neighboring homes captured footage that corroborated
Jacqueline’s account and the sequence of events.
II. Procedural Background
The People charged Rivas with three counts of forcible rape
(§ 261, subd. (a)(2); counts 1-3); three counts of forcible oral
copulation (§ 287, subd. (c)(2)(A); counts 4-6); three counts of
forcible sodomy (§ 286, subd. (c)(2)(A); counts 7-9); one count of
sexual penetration by force (§289, subd. (a)(1)(A); count 10); and
one count of kidnapping to commit rape (§ 209, subd. (b)(1); count
11). For counts 1 through 10, the People alleged that Rivas
suffered a prior sex conviction within the meaning of
section 667.6, subdivision (a). The People also asserted special
allegations under the One Strike Law, namely that Rivas
kidnapped Jacqueline within the meaning of section 667.61,
subdivisions (d)(2) and (e)(1), and that he tied or bound her in the
commission of the charged offenses (§ 667.61, subd. (e)(5)).
A jury found Rivas guilty on all counts and found all
allegations true. The trial court imposed an aggregate sentence
of 250 years to life in prison, consisting of consecutive 25-years-
to-life sentences on counts 1 through 10. The court imposed but
stayed a seven-year sentence on count 11. On the People’s
motion, the court dismissed prior strike enhancements under
sections 1170.12 and 667.6, subdivision (a).
Rivas timely appealed.
8
DISCUSSION
I. The Trial Court Did Not Err in Excluding Evidence
of Criminal Charges Pending Against Jacqueline
Rivas contends the trial court prejudicially erred and
violated his constitutional confrontation and due process rights in
excluding evidence that Jacqueline had felony charges pending
against her. We review the trial court’s ruling for abuse of
discretion and find no error. (People v. Caro (2019) 7 Cal.5th 463,
503; People v. Peoples (2016) 62 Cal.4th 718, 743.)
A. Background
Rivas sought to impeach Jacqueline with evidence of prior
convictions involving moral turpitude, and evidence of pending
charges arising from allegations that she broke into a hotel room,
stole the occupant’s car keys, and was found driving the
occupant’s car. The People opposed any mention of the pending
matter. The trial court allowed Rivas to elicit evidence of
Jacqueline’s prior convictions but not the pending charges. At
trial, Jacqueline admitted suffering misdemeanor convictions for
fraud and theft offenses in 2009, 2018, and 2020. She further
admitted that she was convicted of receiving stolen property, a
felony, in November 2020. She testified that when she
encountered Rivas in July 2020, she was wearing an ankle
monitor in connection with the case that eventually resulted in
the November 2020 conviction.
B. Discussion
Under Evidence Code section 352, a trial court has broad
discretion to “exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create a
substantial danger of undue prejudice, of confusing the issues, or
9
of misleading the jury.” (Evid. Code, § 352; People v. Linton
(2013) 56 Cal.4th 1146, 1181; People v. Smith (2007) 40 Cal.4th
483, 513.) This broad discretion applies equally to “ ‘exclusion of
impeachment evidence in individual cases.’ ” (Smith, at p. 512;
accord People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
The trial court did not abuse its discretion. The probative
value of the charges pending against Jacqueline was minimal. As
the trial court reasoned, Jacqueline was presumed innocent of
the pending charges. In the absence of a conviction, the evidence
was relevant only if the allegations were established to be true.
The trial court could reasonably conclude admitting the evidence
would necessitate undue consumption of time and a substantial
danger of undue prejudice. Attempts to impeach Jacqueline with
evidence of the conduct underlying the pending charges would
likely involve problems of proof, as well as the potential need for
Jacqueline to invoke her right against self-incrimination. In light
of the court’s ruling allowing Rivas to attack Jacqueline’s
credibility by impeaching her with multiple prior convictions
involving moral turpitude, the trial court could reasonably
conclude that the probative value of the pending charges was
substantially outweighed by the likelihood that admitting the
evidence would necessitate an undue consumption of time and
create a substantial risk of undue prejudice.
Rivas argues that the fact of the pending charges would
have established Jacqueline’s bias, and a motive to testify
favorably for the prosecution to receive leniency. However, Rivas
did not make this argument in the trial court and did not elicit or
offer any evidence suggesting there was reason to believe that
Jacqueline expected to receive leniency from her testimony.
Unlike the defendant in People v. Coyer (1983) 142 Cal.App.3d
10839, 842, Rivas was not seeking pre-trial discovery of pending
charges. The defense had received information regarding the
pending charges, and there was no request for discovery or
further proceedings to explore whether Jacqueline expected to
receive any benefit for her testimony. Any inference of bias from
Jacqueline’s pending charges would have been purely
speculative. (People v. Peoples, supra, 62 Cal.4th at p. 743
[exclusion of evidence that produces only speculative inferences is
not an abuse of discretion].)
As our high court explained in People v. Brown (2003) 31
Cal.4th 518, 545 (hereafter Brown II), while “ ‘[c]ross-
examination to test the credibility of a prosecuting witness in a
criminal case should be given wide latitude’ [citation], such
latitude does not ‘prevent the trial court from imposing
reasonable limits on defense counsel’s inquiry based on concerns
about harassment, confusion of the issues, or relevance.’
[citation].” As in Brown II, “we find the trial court did not abuse
its discretion in concluding that, under Evidence Code section
352, any slight impeachment effect of the remote possibility the
witness was testifying in hopes of leniency was outweighed by the
undue consumption of time such questioning would entail. This
routine application of state evidentiary law does not implicate
defendant’s constitutional rights.” (Ibid.)
Moreover, even if the trial court erred in excluding evidence
of Jacqueline’s pending charges, we would find any error
harmless. As Rivas asserts in his opening brief, “defense
counsel’s primary argument was that Jacqueline T. was an
unreliable source of information.” The defense was permitted to
elicit evidence to that end, such as Jacqueline’s prior convictions
and evidence of her drug use.
11
Further, the evidence in this case was overwhelming,
including the ample evidence corroborating Jacqueline’s
testimony. The injuries to Jacqueline’s throat, eyes, wrists,
vagina, and fingertips were consistent with strangulation, rape,
and forcible oral penetration. She reported anal pain to the
nurse who examined her, consistent with having been forcibly
sodomized. Rivas had abrasions on the head of his penis
consistent with scraping against teeth, injuries he initially denied
having and subsequently could not explain. Surveillance videos
from the liquor store and from neighboring homes corroborated
Jacqueline’s account, as did the physical evidence recovered from
Rivas’s person, his home, and his car. Rivas’s DNA was found on
Jacqueline’s mons pubis, and sperm and blood were found on his
bedsheets.
In view of the quantity and quality of the evidence showing
Rivas’s guilt, as well as the admission of other evidence to
impeach Jacqueline’s credibility, it is not reasonably probable
that a result more favorable to Rivas would have been reached
had the trial court allowed evidence of the charges pending
against Jacqueline. (People v. Watson (1956) 46 Cal.2d 818, 837;
People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of
defense evidence on a minor or subsidiary point does not interfere
with constitutional rights].)
Rivas asserts a related ineffective assistance of counsel
argument based on his trial counsel’s failure to (1) specifically
argue that the pending charges tended to show Jacqueline’s
motive to seek leniency through testifying, and (2) “press for a
ruling” that exclusion of the evidence violated Rivas’s right to
confrontation. Our conclusion that no prejudice resulted from the
exclusion of the pending charge necessarily includes the
12
conclusion that Rivas has not met his burden to show prejudice
with respect to his related ineffective assistance of counsel claim.
(Strickland v. Washington (1984) 466 U.S. 668, 687–688; People
v. Bell (2019) 7 Cal.5th 70, 125.)
II. Substantial Evidence Supports Rivas’s Convictions
on Three Counts of Forcible Oral Copulation
Rivas argues there is insufficient evidence to support a
third count of forcible oral copulation because (1) the evidence
“only fairly indicates that there was . . . one time frame during
which [Rivas] forced her to orally copulate him,” (2) Jacqueline
testified that the forcible oral copulation was “one of the last
things he did,” and (3) the word “several,” as used by Jacqueline
to describe how many times Rivas forced his penis into her
mouth, can also mean “ ‘more than one’ ” (and hence only two).4
We find no merit in these arguments.
When reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to the
judgment and ask whether “ ‘ “any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” ’ ” (People v. Banks (2015) 61 Cal.4th 788,
804, italics omitted.) “Because the sufficiency of the evidence is
ultimately a legal question, we must examine the record
independently for ‘ “ substantial evidence—that is, evidence
which is reasonable, credible, and of solid value” ’ that would
support a finding beyond a reasonable doubt.” (Ibid.)
4Much of Rivas’s argument concerns a misstatement by the
prosecutor, which is not germane to our sufficiency-of-the-
evidence analysis. (People v. Redd (2010) 48 Cal.4th 691, 727
[statements made by counsel are not evidence].)
13
Rivas contends that no rational factfinder could have found
him guilty of three separate acts of forcible oral copulation
because the oral copulation only occurred in the bedroom, such
that “there was only one time frame during which [Rivas] forced
[Jacqueline] to orally copulate him.” Rivas fails to cite a single
case to support this contention. Indeed, the case law squarely
rejects it.
In People v. Harrison (1989) 48 Cal.3d 321 (Harrison), our
Supreme Court held the defendant was properly convicted of
three separate counts of digital penetration (§ 289) committed in
the course of a seven- to 10-minute attack on the victim. The
defendant broke into the victim’s bedroom and inserted his finger
into her vagina. She resisted, causing his finger to become
dislodged, but he managed to reinsert his finger twice more. (Id.
at p. 325.) The Court focused on the language in section 289
providing that the crime is committed by a “ ‘penetration,
however slight.’ ” (Id. at p. 328.) The court reasoned that “all the
elements of three ‘completed’ violations of section 289 were
present” because the defendant’s finger penetrated the victim
three separate times, each time with the requisite intent, and
each time employing the requisite degree of force or fear. (Id. at
p. 329.) Harrison rejected a minority view—expressed in People
v. Hammon (1987) 191 Cal.App.3d 1084, 1088—that similar sex
acts constitute distinct crimes only where there is an
“ ‘appreciable passage of time,’ ” a “ ‘reasonable opportunity for
reflection,’ ” a transition to “ ‘a different sexual offense,’ ” or a
“ ‘sexual climax.’ ” (Harrison, at pp. 332–333; accord People v.
Clem (1980) 104 Cal.App.3d 337, 347 [each penetration was
separate act of rape]; People v. Marks (1986) 184 Cal.App.3d 458,
466 [sodomy; same result].)
14
Courts have applied Harrison’s holding in various contexts,
including where a “defendant’s penis kept coming out of [the
victim’s] vagina” because she “was moving and defendant was
hurting her.” (People v. Brown (1994) 28 Cal.App.4th 591, 601
(hereafter Brown I) [affirming convictions on eight counts of rape
where penis dislodged each time victim struggled]; People v.
Catelli (1991) 227 Cal.App.3d 1434, 1446 [affirming two
convictions of forcible oral copulation against each victim where
defendant forced one girl to lick his scrotum and another to suck
his penis, and then had them switch positions]; People v. Johnson
(2007) 150 Cal.App.4th 1467, 1473–1474 [affirming three
convictions for corporal injury on cohabitant based on “ ‘multiple
blows’ ” during a “ ‘continuous assault’ ”]; People v. Scott (1994) 9
Cal.4th 331, 336, 345–347 [defendant’s acts of fondling and
intercourse with minor warranted separate convictions despite
occurring on a single occasion].)
Similarly, substantial evidence supports all three
convictions for forcible oral copulation in this case. Like the
definitions of “penetration” for the crimes of rape, sodomy, and
forcible digital penetration (§§ 263, 286, subd. (a), 289), “oral
copulation” in violation of section 287 requires “any contact, no
matter how slight, between the mouth of one person and the
sexual organ . . . of another.” (CALCRIM No. 1015, italics added;
People v. Grim (1992) 9 Cal.App.4th 1240, 1242.) And like the
crime of forcible rape, the crime of forcible oral copulation
requires a contact “ ‘accomplished against the victim’s will by
means of force.’ ” (People v. Guido (2005) 125 Cal.App.4th 566,
575, quoting People v. Griffin (2004) 33 Cal.4th 1015, 1027.)
Jacqueline testified that Rivas forced his penis into her
mouth “several times, just like he did everything else several
15
times.” She further testified that while Rivas was forcing his
penis into her mouth, she kept turning her head despite his
repeated instruction to stop doing so. It is reasonable to infer
from this testimony that Rivas’s penis became dislodged when
Jacqueline turned her head and that he forcefully overcame her
will by reinserting it “several times.”5 (Brown I, supra, 28
Cal.App.4th at p. 601 [struggle resulted in multiple dislodgments,
each marking the completion of a separate sex crime].)
Jacqueline told the jury that Rivas “tried to damage the back of
[her] throat,” and that his penis “broke [her] tooth” and “tore the
skin that holds [her] tongue down . . . to the bottom of her jaw.”
Given the severity of the injuries Jacqueline described, a jury
could reasonably conclude that Rivas made three forcible contacts
between his penis and Jacqueline’s mouth. Jacqueline’s
testimony alone provided substantial evidence supporting three
convictions of forcible oral copulation. (People v. Gammage (1992)
2 Cal.4th 693, 700 [conviction of a sex crime may be sustained
upon testimony of victim alone].)
We similarly reject Rivas’s argument that his counsel was
ineffective for failing to object to the prosecutor’s erroneous
statements describing two distinct times frames, separated by
acts of rape, during which Rivas forced Jacqueline to orally
copulate him.
In her closing argument, the prosecutor stated Rivas
“forced [Jacqueline] to orally copulate him” in the living room,
that he “raped her repeatedly . . . on the floor,” and that “he
[then] had her forcibly orally copulate him again while still on the
5Penetration is not required for forcible oral copulation
(CALCRIM No. 1015; People v. Huynh (2012) 212 Cal.App.4th
285, 305), but it is certainly sufficient.
16
floor [of the living room].” Jacqueline’s testimony only
specifically described oral copulation occurring in the bedroom.
However, as explained above, whether the oral copulation
occurred in bedroom or in the living room did not determine how
many violations of section 287 occurred. Nor is it reasonably
probable that the prosecutor’s mistaken reference to two distinct
“time frames” divided by acts of rape impacted the jury’s verdict.
Had the mistaken reference to two discernable time frames
informed the verdict, it would have resulted in convictions on two
counts of oral copulation, not three. In other words, that the jury
convicted Rivas of three counts of forcible oral copulation shows
that it is not reasonably probable that “but for [the unsupported
reference to intervening acts of rape], the result of the proceeding
would have been different.” (People v. Williams (1997) 16 Cal.4th
153, 215.)
The jury’s verdict was consistent with the conclusion that
Rivas made three forcible contacts between his penis and
Jacqueline’s mouth, rather than a reliance on there being two
distinct periods of oral copulation. We further note that the trial
court admonished the jury that “[n]othing that the attorneys say
is evidence.” (People v. Sanchez (1995) 12 Cal.4th 1, 70 [similar
admonition “vitiated the misleading effect of” “the prosecutor’s
isolated mischaracterization of the evidence in her opening
statement”], disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421 & fn. 22.) Rivas has not established
there is a reasonable probability that but for defense counsel’s
failure to object to any prosecutor misstatements, the outcome of
the trial would have been different.
17
III. The Trial Court Did Not Err in Refusing to Instruct
the Jury on Assault with Intent to Commit Sodomy
or Attempted Sodomy
Rivas argues the trial court erred in refusing to instruct the
jury on the crimes of assault with intent to commit sodomy
(§ 220) and attempted sodomy (§§ 664, 286). Rivas contends both
crimes are lesser included offenses of sodomy (§ 286). The People
assert the trial court properly rejected Rivas’s request for an
instruction because the crimes are not lesser included offenses of
sodomy. We need not resolve this question. Even if assault with
intent to commit sodomy and attempted sodomy are lesser
included offenses of forcible sodomy, there was no substantial
evidence that only those lesser crimes were committed.
“ ‘[A] trial court must instruct a criminal jury on any lesser
offense “necessarily included” in the charged offense, if there is
substantial evidence that only the lesser crime was committed.’ ”
(People v. Smith (2013) 57 Cal.4th 232, 239, quoting People v.
Birks (1998) 19 Cal.4th 108, 112; accord People v. Breverman
(1998) 19 Cal.4th 142, 154–155.) “ ‘ “[I]f there is no proof, other
than an unexplainable rejection of the prosecution’s evidence,
that the offense was less than that charged, [instructions on
lesser included offenses] shall not be given.” ’ ” (People v. Friend
(2009) 47 Cal.4th 1, 52–53.) We independently review the
question of whether the trial court failed to instruct on a lesser
included offense. (People v. Licas (2007) 41 Cal.4th 362, 366;
People v. Cole (2004) 33 Cal.4th 1158, 1218.)
“Sodomy is sexual conduct consisting of contact between
the penis of one person and the anus of another person. Any
sexual penetration, however slight, is sufficient to complete the
crime of sodomy.” (§ 286, subd. (a).) An attempt requires “a
18
specific intent to commit the crime, and a direct but ineffectual
act done toward its commission.” (§ 21a.) Assault with intent to
commit sodomy requires evidence of an assault and evidence
that, at some time during the assault, the defendant intended to
commit sodomy. (People v. Clifton (1967) 248 Cal.App.2d 126,
129.)
Jacqueline unequivocally testified that Rivas “had sex with
[her] . . . anally” multiple times, including after he dragged her to
the living room floor and bent her over the couch while her arms
were zip tied. She specifically testified that Rivas penetrated her
anally with his penis. She later reported anal pain, and the rape
examination revealed possible bruising inside her anus. There
was no evidence from which the jury could reasonably conclude
that Rivas intended to commit sodomy, but only took a direct but
ineffective step toward committing the act. Similarly, there was
no evidence from which the jury could reasonably conclude Rivas
intended to commit forcible sodomy, he engaged in conduct
sufficient to be an assault, but those actions fell short of
penetrating contact between his penis and Jacqueline’s anus.
(People v. Paz (2017) 10 Cal.App.5th 1023, 1033 [sodomy does not
require penetration past the anal verge or into the anal canal].)
In the trial court, defense counsel argued a reasonable jury could
find “an issue” regarding penetration or the “extent” or “type of
touching” that occurred. Yet, nothing in Jacqueline’s testimony
suggested that Rivas was unable to penetrate her anal opening,
or that he was in any way impeded from doing so.6
6
Jacqueline testified that at one point Rivas inserted an
object into her anus. Rivas suggests the inconclusive bruising,
lack of DNA or sperm evidence from rectal or anal swabs, and the
19
Rivas argues the lack of his DNA and sperm on the swabs
taken from Jacqueline’s anus and rectum, and the lack of
certainty with which the nurse noted possible bruising in
Jacqueline’s rectum, support his argument. Rivas also cites the
evidence of Jacqueline’s drug use to argue that her testimony
“was not reliable.” These arguments are misplaced. During the
rape examination, the nurse took swabs “around the anus,” as
well as “inside the rectum.” According to the criminalist, no
sperm was detected on either the anal or rectal swabs, DNA was
at a value too low from the anal swab to be analyzed and was
therefore “ ‘male DNA inconclusive,’ ” and there was no male
DNA detected from the rectal swab. This evidence, and the
inconclusive evidence of rectal bruising, could have suggested
Rivas engaged in no conduct inside or outside the anal opening
sufficient to transfer his sperm or DNA, or to create bruises. It
was not, however, substantial evidence of a theory that Rivas
engaged in conduct that would establish an intent to commit
sodomy, but he did not complete the act. Likewise, a general
rejection of Jacqueline’s testimony as not credible could have led
the jury to conclude Rivas’s guilt on the sodomy count was not
established beyond a reasonable doubt. But there was no
evidentiary basis for an alternative factual scenario that would
allow the jury to accept portions of Jacqueline’s testimony
sufficient to conclude Rivas had the intent to commit sodomy,
unreliability of Jacqueline’s testimony due to her drug use, could
have led the jury to conclude Rivas anally penetrated Jacqueline
with a foreign object only. However, this factual scenario, even if
supported by the evidence, would not have provided substantial
evidence of an intent to commit sodomy, an element necessary for
both attempted sodomy and assault with intent to commit
sodomy.
20
while simultaneously rejecting her testimony that he completed
the act.
“ ‘ “[S]peculation is an insufficient basis upon which to
require the giving of an instruction on a lesser included offense.” ’
[Citations.] ‘[T]he existence of “any evidence, no matter how
weak” will not justify instructions on a lesser included
offense. . . .’ [Citation.] Rather, substantial evidence must exist
to allow a reasonable jury to find that the defendant is guilty of a
lesser but not the greater offense. [Citation.] ‘ “ ‘Substantial
evidence is evidence sufficient to “deserve consideration by the
jury,” that is, evidence that a reasonable jury could find
persuasive.’ ” ’ [Citation.]” People v. Valdez (2004) 32 Cal.4th 73,
116.)
There was no substantial evidence that Rivas’s relevant
acts were anything other than sodomy, which is completed by
penetration of the anal opening, however slight. Rivas has
advanced no theory consistent with the evidence that would have
allowed the jury to convict him of attempted sodomy or assault
with intent to commit sodomy. Even if both crimes are lesser
included offenses of sodomy by force, the trial court did not err in
refusing to instruct on them, or in rejecting Rivas’s motion for
new trial on the same ground.
IV. Section 667.61, subdivision (i)
Rivas contends that the trial court erred in imposing
consecutive sentences for counts 1 through 10 under
section 667.61. The People concede that the evidence did not
support more than three consecutive sentences under
section 667.61.
At the sentencing hearing, the trial court stated Rivas was
“being sentence[d] pursuant to Penal Code section 667.61 for
21
purposes of the One Strike Sentence Law.” The court then
imposed sentences of 25 years to life on counts 1 through 10, to be
served consecutively.
Section 667.61, subdivision (i), mandates consecutive
sentences for each of certain offenses resulting in convictions if
the crimes involve the same victim on “separate occasions.”
(§ 667.61, subd. (i).) The parties agree, as do we, that the
evidence could only reasonably show three “separate occasions”
for the purpose of the One Strike law’s mandatory consecutive
sentencing provision (§ 667.61, subd. (i)). (People v. Dearborne
(2019) 34 Cal.App.5th 250, 265–266.) However, the People urge
that we nonetheless affirm the trial court’s consecutive
sentencing under section 667.6, subdivision (c), which gives the
trial court discretion to impose consecutive sentences even if the
crimes involve the same victim on the same occasion. (§ 667.6,
subd. (c).) The People assert “nothing in the record affirmatively
rebuts th[e] presumption” that “[the] court . . . understood its
sentencing discretion.”
The record does not support the People’s argument. Both
in their sentencing memoranda and at the sentencing hearing,
the parties focused solely on the mandatory consecutive
sentencing provision (§ 667.61, subd. (i)), and never once
mentioned the discretionary provision (§ 667.6, subd. (c)).
Further, in imposing the 10 consecutive 25-year-to-life sentences
for counts 1 through 10, the court expressly cited the
section 667.61 mandatory provision, and did not provide a
statement of reasons that would have been consistent with 667.6,
subdivision (c). (People v. Osband (1986) 13 Cal.4th 622, 729;
Cal. Rules of Court, rule 4.426(b).) We vacate the sentence
22
imposed on counts 1 through 10 and remand for resentencing.7
(People v. Dearborne, supra, 34 Cal.App.5th at pp. 266–267 [when
record shows trial court sentenced on erroneous assumption it
lacked discretion, remand necessary to allow court to exercise
sentencing discretion at new hearing].)
DISPOSITION
We vacate the sentence as to counts 1 through 10 and
remand for resentencing. In all other respects the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
LAVIN, J.
7
The parties also agree that the abstract of judgment failed
to reflect certain fees and assessments the trial court imposed.
Because we vacate the sentence and remand for resentencing we
need not address this issue.
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