People v. Jensen CA2/1 ( 2024 )

Filed 1/31/24 P. v. Jensen CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B319741
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA098166)
v.
DYLAN JAMES JENSEN,
Defendant and Appellant.
Appeal from judgment of the Superior Court of Los Angeles
County, Yvette Verastegui, Judge. Affirmed in part and reversed
in part.
Edward J. Haggerty, 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, Noah P. Hill, and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 2018, Dylan James Jensen broke into C.L.’s apartment
and sexually assaulted her for 45 minutes. Jensen and the victim
were strangers prior to the assault. The District Attorney charged
Jensen with burglary, forcible rape, forcible sodomy, forcible oral
copulation, and sexual battery.
At trial, Jensen did not dispute that he sexually assaulted
C.L. Instead, he pursued an insanity defense, arguing that his
abuse of methamphetamine and alcohol had exacerbated his
preexisting mental health conditions, rendering him insane at the
time he committed the offenses. The jury rejected Jensen’s insanity
defense and convicted him on all counts charged. The trial court
imposed an aggregate sentence of 100 years to life in prison.
Jensen asks us to reverse his convictions, advancing
three arguments. First, the trial court misinstructed the jury
on his insanity defense. Second, the court abused its discretion
in admitting his statements concerning consensual sexual activity
in which he purportedly engaged during the hours immediately
preceding the assault. Third, the prosecution introduced
insufficient evidence to support his conviction on count 7 for
sexual battery.
We are not persuaded by Jensen’s arguments challenging
his convictions. Jensen fails to demonstrate any instructional error,
and we disagree that evidence of his ability to distinguish between
consensual and nonconsensual sexual activity is irrelevant to his
insanity defense. In addition, Jensen’s challenge to the sufficiency
of the evidence on count 7 is mistaken. In reality, it is no more
than a complaint over typographical errors in the relevant jury
instruction and verdict form that we may disregard.
Jensen also raises six challenges to his sentence, three of
which are meritorious. We agree with Jensen that the trial court
must (1) reduce his sentences for forcible sodomy (count 3) and
2
forcible oral copulation (count 5) from 25 years to life to 15 years
to life in prison, (2) strike the concurrent sentences imposed on the
forcible rape counts (counts 2 and 4), and (3) strike the mandatory
consecutive sentences imposed on counts 2 through 5, and either
(a) impose concurrent sentences, or (b) clarify the legal and factual
basis for its discretionary determination to impose consecutive
sentences on those counts.
We are not persuaded, however, by Jensen’s remaining
arguments—namely, that (1) Assembly Bill No. 518 entitles him
to resentencing, (2) the court abused its discretion in denying
the prosecution’s motion to dismiss the deadly weapon use
enhancements, and (3) section 1385, subdivision (c)(2)(B) mandates
dismissal of those enhancements. Each of these arguments is
foreclosed by the record and relevant legal authority.
Finally, we agree with Jensen the trial court must correct
its error in calculating his presentence custody credits.1
Accordingly, we remand Jensen’s case to the trial court
with instructions to correct the sentencing errors described in
this opinion. In all other respects, we affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY2
A. The Crimes
At approximately 5:00 a.m. on June 4, 2018, Jensen broke
into C.L.’s apartment through a balcony door. He took a knife from
1 Jensen also contends his counsel rendered ineffective
assistance by failing to preserve many of his arguments on appeal.
Because we address each of Jensen’s contentions on the merits, we
need not resolve his ineffective assistance claim.
2 We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
3
the kitchen and then woke C.L. by covering her mouth with his
hand, placing the knife near her face, and directing her to “shut up”
or “stop.” He stabbed the bed several times approximately six
inches from C.L.’s legs.
Jensen then straddled C.L., removed her underwear, and
said, “We’re going to do this,” or “This is going to happen.” She
attempted to take the knife from Jensen, but was unable to do so.
Jensen placed his flaccid penis in contact with the exterior of her
vagina. At that point she said, “If you’re going [to] do this, you have
to get rid of the knife.”
Jensen put the knife aside and made a number of statements
concerning “Zeus,” “God,” “Jesus,” and “[w]omen . . . all cheat[ing]
on [him].” While making these statements, Jensen repeatedly
touched the exterior and interior of C.L.’s genital area with his
still-flaccid penis. C.L. believed he was attempting to achieve an
erection by doing so.
Jensen then forced her into several different positions. With
her flat on her back, Jensen placed one of her legs over his shoulder.
He next placed both her legs over his shoulders and licked her
genitalia. He kissed her all over her body (including her genitals),
spat on his hands, and placed his spit in her vaginal area. He also
touched her clitoris and other parts of her genital region with his
hands and forced her to masturbate his penis.
Jensen next instructed C.L. to turn over. While she was
on her hands and knees, he unsuccessfully attempted to penetrate
her anus with his flaccid penis. Jensen pushed her flat onto her
stomach, at which point he achieved an erection and penetrated
her anus for approximately 10 minutes.
Finally, Jensen said, “Turn over. This is going to be the
last position.” He placed C.L. on her back with her legs over his
shoulders and penetrated her vagina for approximately five to
4
ten minutes before ejaculating. Jensen then exited C.L.’s
apartment through the front door. The assault lasted
approximately 45 minutes in its entirety.
C.L. called 911 shortly after Jensen’s departure. She
provided his physical description, and officers located and detained
Jensen within minutes.
A medical examination confirmed C.L.’s injuries were
consistent with her vagina being penetrated by a penis and a finger,
and her anus being penetrated by a penis. Subsequent DNA
analysis confirmed the presence of Jensen’s DNA in the victim’s
vagina and anus, as well as on the knife used during the assault.
B. Pretrial Proceedings
1. The Information
The Los Angeles County District Attorney’s Office filed an
information charging Jensen with first degree burglary (Pen. Code,
§ 459)3 (count 1), forcible rape (§ 261, subd. (a)(2)) (counts 2 and 4),
sodomy by use of force (§ 286, subd. (c)(2)(A)) (count 3), forcible
oral copulation (former 288a, subd. (c)(2)(A)) (count 5), and sexual
battery—masturbation (§ 243.4, subd. (d)) (counts 6 and 7).
In addition, the information alleged that Jensen “personally
used a deadly and dangerous weapon[ ], to wit, a knife” in
committing each of the charged offenses, within the meaning of
section 12022, subdivision (b)(1). The information alleged further
that, with respect to counts 2, 3, 4, and 5, Jensen’s use of a deadly
weapon constituted a special circumstance within the meaning of
section 667.61, subdivisions (a) and (e).
3 Unless otherwise specified, all statutory references are to
the Penal Code.
5
Finally, with respect to counts 2 and 4, the information
alleged that Jensen engaged in forcible rape during the commission
of first degree burglary, within the meaning of section 667.61,
subdivisions (a) and (d).
2. Prosecution’s Motion To Dismiss the Deadly
Weapon Enhancements Pursuant to
Special Directive 20-08
At a December 16, 2020 pretrial hearing, a deputy district
attorney made an oral motion under section 1385 to dismiss the
deadly weapon use enhancement allegations, pursuant to Special
Directive 20-08. The directive—issued by then-newly elected
Los Angeles County District Attorney George Gascón—“instructed
deputy district attorneys in pending cases to move to dismiss or
withdraw sentence enhancement allegations.” (Nazir v. Superior
Court (2022) 79 Cal.App.5th 478, 486 (Nazir).)
During argument, the court confirmed the prosecution
brought the motion solely as a result of the “blanket policy”
resulting from the special directive, rather than “anything about
the circumstances in [the] case . . . [or] Jensen and his criminal
history.” In addition, the victim appeared at the hearing and
expressed that she opposed striking the enhancements.
The court then solicited argument from defense counsel,
who urged that Jensen fell squarely within the “spirit of [the]
policy” animating the special directive: “The spirit of this policy is
to not tack on unnecessary added penalties where the underlying
sentence to these charges adequately serve[s] to rehabilitate
and punish defendants. [Jensen] as charged is looking at over a
hundred years to life in prison. What Mr. Gascón is doing is trying
to bring balance to the justice system, not just to ensure justice
for our victims but to ensure that there is an even[-]handed way to
distribute and mete out sentences. To tack on the additional year
6
[resulting from the enhancement allegations] when [Jensen] is
already looking at a minimum of 25 to life is superfluous, it’s
unnecessary, and justice will be served if the jury convicts . . .
Jensen by giving him 25 to life per count.”
After noting that it was not bound by either the victim’s
wishes or the special directive, the court denied the motion. In
doing so, the court noted that use of the deadly weapon (the knife)
was “inextricably connected to the underlying offenses” and that,
if found true, the deadly weapon use enhancements would have a
minimal impact on Jensen’s total sentence. The court then ruled,
“The request [to strike the enhancements] is denied. I don’t see
how it fits the interest of justice analysis in this particular case.”
C. The Trial
Jensen’s trial consisted of a guilt phase, followed by a sanity
phase. During the guilt phase of the trial, C.L. testified at length,
describing in detail the 45-minute sexual assault.
Jensen did not dispute that he committed the sexual assault;
instead, he pursued an insanity defense. He claimed he was
delusional when he committed the assault and believed the victim
was his wife. During the sanity phase of the trial, the prosecution
and defense each presented multiple expert witnesses who testified
concerning Jensen’s mental health, including the effects of his
longstanding methamphetamine abuse on his psychological
condition.
At the conclusion of the sanity phase, the trial court
instructed the jury with CALCRIM No. 3450, the pattern insanity
instruction.
D. Verdicts and Sentencing
The jury convicted Jensen on all seven counts. In addition,
it found that Jensen had “personally used a deadly and dangerous
7
weapon” in committing each offense. The jury also found “true”
that (1) Jensen’s use of the deadly weapon qualified as a special
circumstance for purposes of section 667.61, subdivisions (a) and (e)
with respect to each count, and (2) Jensen committed counts 2 and 4
during the commission of first degree burglary, within the meaning
of section 667.61, subdivisions (a) and (d).
The trial court sentenced Jensen to an aggregate prison
term of 100 years to life. The sentence consisted of consecutive
terms of 25 years to life on each of the forcible rape, forcible
sodomy, and forcible oral copulation counts (counts 2 through 5).
In addition, the court imposed separate, concurrent terms of
25 years to life on the rape counts (counts 2 and 4) pursuant to
section 667.61, subdivisions (a) and (d). The court also imposed
and stayed a four-year sentence on the burglary count (count 1)
and imposed three-year sentences in connection with each of the
sexual battery counts (counts 6 and 7), to run concurrently with the
sentence imposed on count 2. Finally, the court imposed one-year
deadly weapons enhancements on each count, although it stayed
imposition of the enhancements on counts 1 through 5.
Jensen timely appealed.
DISCUSSION
A. Challenges to Convictions
Jensen mounts three challenges to his convictions, arguing:
(1) the trial court misinstructed the jury concerning his insanity
defense; (2) the court erroneously admitted evidence of his prior
consensual sexual conduct during the sanity phase of the trial;
and (3) insufficient evidence supports the conviction on count 7
for sexual battery.
8
1. Jensen Fails to Demonstrate Instructional
Error
Jensen contends we must grant him a new sanity trial
because the court incorrectly instructed the jury that, to prove
his insanity defense, Jensen must establish both that he was
(1) incapable of understanding his conduct was morally wrong,
and (2) incapable of understanding his conduct was legally wrong.
We disagree.
“A claim of instructional error is reviewed de novo. [Citation.]
An appellate court reviews the wording of a jury instruction de novo
and assesses whether the instruction accurately states the law.
[Citation.] In reviewing a claim of instructional error, the court
must consider whether there is a reasonable likelihood that the
trial court’s instructions caused the jury to misapply the law
in violation of the Constitution. [Citations.] The challenged
instruction is viewed ‘in the context of the instructions as a whole
and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible
manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
At the sanity phase of a trial, “the defendant has the burden
to prove ‘by a preponderance of the evidence that he or she was
incapable of knowing or understanding the nature and quality of
his or her act and of distinguishing right from wrong at the time
of the commission of the offense.’ ” (People v. McCarrick (2016)
6 Cal.App.5th 227, 246 (McCarrick), quoting § 25, subd. (b).) “Our
Supreme Court has interpreted this statutory language to mean
that insanity can be shown under either the ‘nature and quality’
prong or the ‘right from wrong’ prong of the test. [Citation.]
The court also has held that ‘a defendant who is incapable of
understanding that his act is morally wrong is not criminally liable
merely because he knows the act is unlawful.’ ” (McCarrick, supra,
9
6 Cal.App.5th at p. 246, quoting People v. Skinner (1985) 39 Cal.3d
765, 783.) Thus, even if a jury concludes a defendant understands
his conduct is legally wrong, it still may find him not guilty by
reason of insanity if it determines he is incapable of understanding
his conduct is morally wrong.
Jensen contends the insanity instruction the court provided—
modeled on form instruction CALCRIM No. 3450—misinstructed
the jury by suggesting he must prove both that he could not
understand his conduct was legally wrong and that he could not
understand his conduct was morally wrong. The court instructed
the jury as follows:
“The defendant was legally insane if when he committed
the crimes, he had a mental disease or defect, and because of that
disease or defect, he was incapable of knowing or understanding
the nature and quality of his act or was incapable of knowing or
understanding that his act was morally or legally wrong.”
Jensen contends the jury might have misinterpreted the
phrase “morally or legally wrong” to mean “morally and legally
wrong.” Pointing to English usage guides and a treatise on formal
logic, he urges that “[a]s a matter of logic and English grammar,
when preceded by a negative”—such as the word “incapable”—
the word “ ‘or’ is conjunctive.” He argues, for example, “if a person
says, ‘I am incapable of learning math or science, he means he
is incapable of learning math and he is incapable of learning
science.’ ”
Jensen acknowledges the First District in McCarrick rejected
his reading of CALCRIM No. 3450:
“Defendant argues that the jury might have misinterpreted
the phrase ‘legally or morally wrong’ in the instruction to mean
‘morally and legally wrong’ and as a result might have concluded
defendant must be considered sane if she knew the killings were
10
unlawful, whether or not she was capable of understanding their
moral wrongfulness. For this contention, she relies on cases noting
that the words ‘and’ and ‘or’ are sometimes carelessly used in an
interchangeable manner. [Citations.] But defendant offers no
basis other than speculation that the jury adopted this strained
reading of the instruction.” (McCarrick, supra, 6 Cal.App.5th at
pp. 250–251, italics omitted.)
Although Jensen contends McCarrick fails to engage
adequately with CALCRIM No. 3450’s grammatical structure,
he does not dispute that the usual meaning of “or” is disjunctive.
Nor does he offer any legal authority supporting his reading of
the instruction. Moreover, even if the instruction’s grammar
could have created some ambiguity, Jensen points to nothing in
the record establishing “ ‘a reasonable likelihood the jury applied
the instruction’ ” in the manner he suggests. (Mitchell, supra, 7
Cal.5th at p. 579; see People v. Alsemi (1890) 85 Cal.434, 435 [in
determining whether jury was misled by language in an instruction,
courts “must consider it by the light of common understanding,
rather than the strict rules of grammar, and also in connection with
its context”].)
To the contrary, the record reflects that defense counsel and
the prosecutor each emphasized the disjunctive meaning of the
word “or” in other phrases of the jury instructions. And neither
the defense nor the prosecution made any arguments concerning
the distinction between a legal wrong and a moral wrong.
We therefore conclude that Jensen has failed to establish his
claim of instructional error.
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2. The Trial Court Acted Within Its Discretion
in Admitting Evidence of Jensen’s
Consensual Sexual Conduct
Jensen argues the trial court abused its discretion by
permitting Dr. Rad and Dr. De Armas, expert witnesses offered by
the prosecution, to testify during the sanity trial phase concerning
statements Jensen made about his participation in two consensual
sexual encounters in the hours preceding the crimes. Again, we
disagree.
Dr. Rad’s challenged testimony spans less than two pages of
transcript. He testified, in relevant part:
“[Jensen] told me about two sexual encounters . . . he had
[in the hours leading up to the crimes]. [¶] . . . [¶] . . . He told me
that a homeless couple invited him into their tent. They offered
him vodka, and the three of them had sex, and he left their tent
at around 2:00 a.m. and they gave him marijuana and vodka, as
he left.
“[¶] . . . [¶]
“[Jensen] described that at approximately 3:00 a.m. a man
in a gray Honda pulled up and invited him into the car. He told
me that they snorted crystal methamphetamine together and had
oral sex.”
The allegedly objectionable testimony from Dr. De Armas
appears on a single page of transcript:
“[Jensen said] that he had been in a tent with a couple having
sex with them and drinking alcohol and shooting up. [¶] . . . [¶] . . .
He said that he did a line of crystal [methamphetamine], he started
going crazy, and, ‘[he] thought the world was going to implode.’ ”
12
Jensen argues this testimony was irrelevant under Evidence
Code section 2104 and unduly prejudicial under Evidence Code
section 3525 because it “was highly inflammatory and risked an
emotional response from jurors repulsed by Jensen’s seemingly
compulsive and indiscriminate sexual behavior.”
We conclude, however, Jensen’s statements concerning his
participation in consensual sexual activity immediately prior to
the crimes are relevant because they suggest he could distinguish
consensual from nonconsensual sexual activity. And as set forth
in the Discussion ante, part A.1, whether Jensen could distinguish
between right and wrong was a key issue during the sanity phase
of his trial. We conclude further the testimony was not unduly
prejudicial. The testimony was neither lengthy nor graphic. And it
was far less inflammatory than the properly admitted testimony of
C.L. describing the sexual assault Jensen committed against her—
an assault defense counsel conceded in closing argument was “a
very violent rape.”
Accordingly, we are not persuaded the court abused its
discretion in admitting the challenged testimony from Drs. Rad
and De Armas. In addition, because we disagree with Jensen’s
4 Evidence Code section 210 provides: “ ‘Relevant evidence’
means evidence, including evidence relevant to the credibility of
a witness or hearsay declarant, having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.”
5 Evidence Code section 352 provides: “The court in
its discretion may 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
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.”
13
characterization of this brief, relevant testimony as “highly
inflammatory,” we reject his contention that its admission rendered
his trial fundamentally unfair in violation of due process. (See
People v. Falsetta (1999) 21 Cal.4th 903, 913 [“[t]he admission of
relevant evidence will not offend due process unless the evidence
is so prejudicial as to render the defendant’s trial fundamentally
unfair”].)
3. Jensen’s Challenge to Count 7 Fails
We also are unpersuaded by Jensen’s arguments concerning
his conviction for sexual battery charged in count 7—arguments
he incorrectly characterizes as challenging the sufficiency of the
evidence supporting the conviction.
Both count 6 and count 7 of the information charged Jensen
with sexual battery in violation of section 243.4, subdivision (d).
That subdivision prohibits a defendant from forcing a victim “to
masturbate or touch” the defendant’s “intimate part[s].” (§ 243.4,
subd. (d).)6 At trial, the evidence showed that—in addition to
violating subdivision (d) of section 243.4—Jensen violated
subdivision (a) of that section, which prohibits a defendant from
6 Section 243.4, subdivision (d) provides in full: “Any person
who, for the purpose of sexual arousal, sexual gratification, or
sexual abuse, causes another, against that person’s will while
that person is unlawfully restrained either by the accused or an
accomplice, or is institutionalized for medical treatment and is
seriously disabled or medically incapacitated, to masturbate or
touch an intimate part of either of those persons or a third person,
is guilty of sexual battery. A violation of this subdivision is
punishable by imprisonment in a county jail for not more than one
year, and by a fine not exceeding two thousand dollars ($2,000);
or by imprisonment in the state prison for two, three, or four years,
and by a fine not exceeding ten thousand dollars ($10,000).”
14
“touch[ing] an intimate part of another person” against that
person’s will. (§ 243.4, subd. (a).)7
The trial court therefore permitted the prosecution to
modify the relevant jury instruction and verdict form to reflect its
allegations that Jensen had violated section 243.4, subdivision (a)
by touching an intimate part of the victim against her will.
Jensen did not object to these modifications at trial. The modified
instructions and verdict form for count 7 correctly describe the
conduct prohibited by subdivision (a) of the statute. They contain
a typographical error, however, in that they state the prohibited
conduct violates subdivision (d), rather than subdivision (a),
of section 243.4. Jensen argues that, in light of this error, the
prosecution failed to introduce sufficient evidence in support of
the count 7 conviction.
Critically, however, Jensen did not dispute at trial that he
committed acts against the victim that violated subdivision (a) of
section 243.4. He also effectively concedes this point on appeal.
Thus—notwithstanding that Jensen characterizes his challenge
as one to the sufficiency of the evidence supporting count 7—
in reality, his complaint is one of clerical error. And “ ‘technical
defects in a verdict may be disregarded if the jury’s intent to convict
7 Section 243.4 subdivision (a) provides in full: “Any person
who touches an intimate part of another person while that person
is unlawfully restrained by the accused or an accomplice, and
if the touching is against the will of the person touched and is
for the purpose of sexual arousal, sexual gratification, or sexual
abuse, is guilty of sexual battery. A violation of this subdivision is
punishable by imprisonment in a county jail for not more than one
year, and by a fine not exceeding two thousand dollars ($2,000); or
by imprisonment in the state prison for two, three, or four years,
and by a fine not exceeding ten thousand dollars ($10,000).”
15
of a specified offense within the charges is unmistakably clear, and
the accused’s substantial rights suffered no prejudice. [Citations.]’
[Citations.]” (People v. Camacho (2009) 171 Cal.App.4th 1269,
1272–1273.)
Here, the language of the count 7 jury instructions and
verdict form demonstrate the jurors “unmistakably” intended
to convict Jensen of the conduct prohibited by section 243.4,
subdivision (a). In addition, Jensen suffered no prejudice resulting
from the typographical errors. The record reflects that Jensen
was aware no later than opening statements that the prosecution’s
theory included that he committed sexual battery by putting
his hands on the victim’s vagina—a violation of subdivision (a)
of the statute. Moreover, as noted, Jensen conceded in opening
statement that he engaged in all the sexual conduct alleged by
the prosecution.
Accordingly, Jensen’s challenge to count 7 fails.
B. Challenges to Sentence
Having rejected Jensen’s various challenges to his
convictions, we turn to the arguments he raises concerning six
purported sentencing errors. We agree with Jensen that the trial
court must (1) reduce the sentences imposed on counts 3 and 5 to
15 years to life, (2) strike the concurrent 25-year-to-life sentences
imposed on counts 2 and 4 under section 667.61, subdivision (e),
and (3) either (a) impose concurrent sentences on counts 2 through
5, or (b) clarify the legal and factual basis for its discretionary
determination to impose consecutive sentences on those counts.
We, however, reject Jensen’s remaining challenges to his sentence.
16
1. The Trial Court Must Correct Jensen’s
Sentences on Counts 3 and 5
The parties agree, as do we, that the trial court must correct
Jensen’s sentences on count 3 (sodomy by use of force) and count 5
(forcible oral copulation).
At sentencing, the court imposed sentences of 25 years to life
on these counts pursuant to the “One Strike” law, section 667.61.
That section provides, in relevant part, where a defendant is
convicted of certain specified offenses (which include those charged
in counts 3 and 5) “under one or more of the circumstances specified
in subdivision (d) or under two or more of the circumstances
specified in subdivision (e),” the court shall impose a sentence of
25 years to life. (§ 667.61, subd. (a), italics added.) The section
provides further that, where a defendant is convicted under only
“one of the circumstances specified in subdivision (e),” the court
shall impose a sentence of 15 years to life. (Id., subd. (b), italics
added.)
Here, the prosecution pleaded and proved only one
circumstance specified in subdivision (e)—namely that Jensen
“personally used a dangerous or deadly weapon” in committing
the offense. (§ 667.61, subd. (e)(3).) The court therefore erred
in imposing sentences of 25 years to life on counts 3 and 5. On
remand, the court is directed to correct the sentences on those
counts to reflect sentences of 15 years to life, pursuant to
section 667.61, subdivision (b).
2. The Trial Court Must Strike Jensen’s
Concurrent Sentences on Counts 2 and 4
The parties also agree the trial court erred in sentencing
Jensen on counts 2 and 4, both of which charged Jensen with
forcible rape. The parties dispute, however, the nature of the
error and the appropriate remedy.
17
The court properly imposed a sentence of 25 years to life in
connection with each count based on the jury’s determination that
Jensen committed forcible rape “during the commission of first
degree burglary . . . within the meaning of . . . section[ ] 667.61[,
subdivisions] (a) and (d).” But the court also imposed a separate,
concurrent sentence of 25 years to life on each count based on
its determination that Jensen committed the offenses “under
two or more of the circumstances specified in subdivision (e)” of
section 667.61. (§ 667.61, subd. (a).) This was error because, as
set forth in the Discussion ante, part B.1, the prosecution pleaded
and proved only one subdivision (e) circumstance—namely, use
of a dangerous or deadly weapon in committing the offenses.
The Attorney General contends we should direct the trial
court to reduce Jensen’s concurrent sentences on counts 2 and 4
to 15 years to life pursuant to subdivision (b) of section 667.61,
which provides that a defendant convicted of a qualifying offense
under only one subdivision (e) circumstance “shall be punished by
imprisonment in the state prison for 15 years to life.” (§ 667.61,
subd. (b).)
Jensen counters that the appropriate remedy is to strike
the concurrent sentences in their entirety because “[s]ection 667.61
is an alternate sentencing statute,” rather than “an enhancement
statute.” Thus, Jensen contends that “[i]ts subdivisions do not
set forth enhancements for such acts as use of a deadly weapon
or burglary. These are merely circumstances that when proved
determine whether a defendant will receive a 25-years-to-life
sentence under subdivision (a) or a 15-years-to-life sentence under
subdivision (b).”
We agree the authorities on which Jensen relies support his
contention that “[s]ection 667.61 is an alternate penalty scheme
that, when charged, defines the length of imprisonment for the
18
substantive offense.” (People v. Perez (2010) 182 Cal.App.4th
231, 239; see People v. Waqa (2023) 92 Cal.App.5th 565, 577
[“[t]he One Strike law ‘provides an alternative, more severe
set of penalties for certain sex offenses committed under certain
enumerated circumstances.’ [Citation.] A one strike term is
‘ “ ‘an alternate penalty for the underlying felony itself,’ ” ’ not
a sentence enhancement that adds ‘ “ ‘ “an additional term of
imprisonment” . . . to a “base term” ’ ” ’ ”].)
Accordingly, the trial court must strike the concurrent
sentences imposed on counts 2 and 4 under section 667.61,
subdivision (e).
3. The Trial Court Erred in Imposing
Mandatory Consecutive Sentences on
Counts 2 Through 5
Jensen argues the trial court failed to articulate adequately
its reasons for imposing consecutive sentences on counts 2 through
5, pursuant to section 667.61, subdivision (i), which incorporates by
reference section 667.6, subdivision (d). He asks that we remand
for the court to make a finding on whether the crimes occurred “on
separate occasions” for purposes of section 667.6, subdivision (d)—
an inquiry that requires the court to consider whether the
defendant “had a reasonable opportunity to reflect” between the
commission of certain sex crimes.
Once a trial judge has found under that subdivision that
crimes occurred on separate occasions, we are “ ‘not at liberty to
overturn the result unless no reasonable trier of fact could decide
that there was a reasonable opportunity for reflection.’ [Citation.]”
(People v. Pena (1992) 7 Cal.App.4th 1294, 1314–1315.) Here,
we conclude no reasonable trier of fact could find from the evidence
a reasonable opportunity to reflect during the sequence of
events at issue, and the court thus erred to the extent it relied
19
on sections 667.61, subdivision (i) and 667.6, subdivision (d)’s
mandatory consecutive sentencing provisions in sentencing
Jensen on counts 2 through 5. We cannot, however, discern from
the record whether the court intended to rely on these provisions
or its separate discretionary authority in imposing the consecutive
sentences.8 We therefore remand with directions to the trial court
to (1) order the sentences on counts 3 through 5 to run concurrently
to the sentence on count 2, or (2) reimpose the consecutive
sentences on counts 2 through 5 and clarify on the record the legal
and factual basis for its discretionary determination to do so.
Under section 667.61, subdivision (i), “the court is required
to impose consecutive sentences for multiple violations [of certain
specified offenses, including those charged in counts 2 through 5]
where ‘the crimes involve . . . the same victim on separate occasions
8 We requested supplemental briefing from the parties
concerning whether a trial court possesses discretionary authority
to impose consecutive sentences even where a defendant’s
offenses do not fall within the scope of the mandatory consecutive
sentencing provisions of sections 667.61, subdivision (i) and 667.6,
subdivision (d). The parties agree, as do we, that section 667.6,
subdivision (c) and section 669 vest the trial court with such
authority. (See § 667.6, subd. (c) [“[i]n lieu of the term provided
in [s]ection 1170.1, a full, separate, and consecutive term may be
imposed for each violation of an [enumerated] offense . . . if the
crimes involve the same victim on the same occasion”]; § 669
[“[w]hen a person is convicted of two or more crimes . . . whether
by judgment rendered by the same judge or by different judges,
the second or other subsequent judgment upon which sentence
is ordered to be executed shall direct whether the terms of
imprisonment or any of them to which he or she is sentenced shall
run concurrently or consecutively”]; see also Cal. Rules of Court,
rule 4.426(b).)
20
as defined in subdivision (d) of [s]ection 667.6.’ ” (People v.
Dearborne (2019) 34 Cal.App.5th 250, 265 (Dearborne).)
Section 667.6, subdivision (d)(2), in turn, provides, “In
determining whether crimes against a single victim were committed
on separate occasions under this subdivision, the court shall
consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect
upon the defendant’s actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between crimes,
nor whether or not the defendant lost or abandoned the opportunity
to attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.”
(§ 667.6, subd. (d)(2).)
In upholding this standard against claims of unconstitutional
vagueness, one court observed that “[i]t takes no particular depth
of reasoning to be able to distinguish between a situation where
a perpetrator engages in a continuous course of conduct involving
multiple sex offenses with no break in between and one in which
the individual offenses are separated by some other activity, either
of the defendant or another, that interrupts the assault and affords
the perpetrator an opportunity to reflect on what he or she is doing.
The activity need not involve any type of movement of the victim
and need not be of any particular duration. It may be nothing
more than car lights going by that cause the perpetrator to pause
and reflect before proceeding . . . or some activity not amounting
to a sex offense, like pausing to listen to the victim’s answering
machine or punching the wall . . . . We believe a perpetrator can
reasonably be held to recognize this distinction.” (People v. Solis
(2012) 206 Cal.App.4th 1210, 1220.)
In distinguishing a continuous course of conduct with
no break versus a course of conduct in which the offenses are
21
separated, “courts have held, for example, the offenses of placing a
finger in the victim’s vagina, kissing her genitals and then placing
his penis in her vagina were but a single occasion. [Citations.]
Similarly, where a defendant raped the victim, then ‘ “got off of
her, twisted her by the legs violently, and orally copulated her,” ’
the offenses occurred on a single occasion. [Citations.]
“In contrast, where the offenses are interrupted by the
defendant’s nonsexual activity, they occur on a separate occasion.
[Citations.] Where a defendant left a car after a bout of sexual
assault, but returned 15 minutes later and raped the victim a
second time, the second rape occurred on a separate occasion.
[Citation.] Where the defendant moved the victim from one place
to another, and also stopped an assault to listen to the victim’s
answering machine before resuming, the offenses occur[red] on
separate occasions. [Citations.] Where the defendant’s assault was
interrupted by the outside event of an observer driving by, but [the
defendant] then resumed the assault, it indicated reflection by the
defendant, and the second assault occurred on a separate occasion.
[Citations.]” (Dearborne, supra, 34 Cal.App.5th at pp. 265–266.)
Here, the crimes charged in count 2 (forcible rape), count 3
(sodomy by use of force), count 4 (forcible rape), and count 5
(forcible oral copulation) did not occur on separate occasions
for purposes of sections 667.61, subdivision (i) and 667.6,
subdivision (d). The crimes occurred as part of a single attack
on the victim, and nothing in the record indicates “the offenses
[were] interrupted by . . . nonsexual activity.” (Dearborne, supra,
34 Cal.App.5th at p. 266.) To the extent Jensen changed C.L.’s
position, it was part and parcel of the sexual assault, was
accomplished within seconds and did not involve a break in the
assault, and did not provide him a reasonable opportunity to
reflect upon his actions.
22
Accordingly, the court erred to the extent it relied on
sections 667.61, subdivision (i) and 667.6, subdivision (d) in
imposing consecutive sentences on counts 2 through 5. On remand,
the court therefore is directed either to impose concurrent sentences
on those counts or to clarify the basis for its discretionary
imposition of consecutive sentences.
4. Assembly Bill No. 518’s Amendments to
Section 654 Do Not Entitle Jensen to
Resentencing
Jensen next contends that “in light of . . . recently passed
Assembly Bill [No.] 518, [his] case should be remanded for
resentencing.” (Boldface & capitalization omitted.) We disagree.
Penal Code section 654 “precludes multiple punishments for a
single act or indivisible course of conduct.” (People v. Hester (2000)
22 Cal.4th 290, 294.) The former version of the statute provided
that “[a]n act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment.”
(Former § 654, subd. (a).) Assembly Bill No. 518 amended
section 654 by removing the requirement that courts impose
sentence using the provision of law with the longest potential prison
term, thereby affording courts discretion to impose punishment
under any of the applicable provisions. (See Stats. 2021, ch. 441,
§ 1; amended § 654, subd. (a), eff. Jan. 1, 2022.)
Here, the trial court imposed punishment on the sex offense
counts—which carried the longest potential prison terms of the
crimes charged—and stayed punishment on the burglary count.
“In doing so,” Jensen contends, “the court gave no indication it
was aware of the discretion granted it under amended section 654
to stay sentence on the sex offenses that arose out of the same
indivisible course of conduct as the burglary.” He urges that
23
we therefore must remand his case for resentencing because
“ ‘[d]efendants are entitled to sentencing decisions made in
the exercise of the “informed discretion” of the sentencing court.’
(People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)”
But “[i]n the absence of evidence to the contrary, we presume
that the court ‘knows and applies the correct statutory and case
law.’ [Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 361;
see Evid. Code, § 664.) And Jensen points to nothing in the record
demonstrating affirmatively that the court was unaware of its
newly expanded discretion under section 654.
To the contrary, defense counsel emphasized at sentencing
that “the court is not required to give the max[imum sentence],
obviously, it is discretionary.” Moreover, the court’s comments
at the sentencing hearing—including that the court was “in awe
of [the victim’s] . . . courage and . . . strength,” that Jensen used
a knife during the crimes, and that the victim was “particularly
vulnerable due to her age”—indicate it was not inclined to impose
a lesser punishment pursuant to section 654.
We therefore are not persuaded that we should remand this
matter for resentencing in light of Assembly Bill No. 518.
5. The Trial Court Acted Within Its Discretion
in Denying the Prosecutor’s Motion To
Dismiss the Deadly Weapon Enhancements
We similarly are unpersuaded by Jensen’s argument that
the trial court abused its discretion by denying the prosecutor’s
motion to dismiss the section 12022, subdivision (b)(1)9 deadly
9 Section 12022, subdivision (b)(1) provides:“A person who
personally uses a deadly or dangerous weapon in the commission of
a felony or attempted felony shall be punished by an additional and
consecutive term of imprisonment in the state prison for one year,
24
weapon enhancement allegations without “giv[ing] more careful
consideration to Special Directive 20-08, particularly the research
and policy statements contained therein.”
Jensen does not dispute that, notwithstanding any special
directive issued by the District Attorney’s Office, the trial court
retained discretion to deny the motion. (See Nazir, supra, 79
Cal.App.5th at p. 499 [“[c]ontrary to the position of the district
attorney . . . a prosecutor’s motion to dismiss an enhancement
under section 1385 is not ‘a constitutionally protected exercise
of prosecutorial discretion,’ and the trial court may deny such a
motion”].) Nor does he point to any authority holding that a court
abuses its discretion by failing to discuss expressly “the research
and policy statements” contained in Special Directive 20-08 in
denying a section 1385 motion to strike an enhancement.
Moreover, nothing in the record indicates the court
misunderstood the scope of its discretion or failed to consider
the special directive in exercising that discretion. To the contrary,
the record reflects the court invited argument from defense counsel,
who highlighted the policy considerations underlying the special
directive and urged that Jensen fell squarely within the directive’s
“spirit.”
Accordingly, we conclude the court acted within its discretion
in denying the prosecution’s motion to dismiss the deadly weapon
use enhancement allegations.
unless use of a deadly or dangerous weapon is an element of that
offense.”
25
6. Section 1385, Subdivision (c)(2)(B)
Does Not Mandate Dismissal of Six of
the Seven Deadly Weapon Enhancements
Also unconvincing is Jensen’s argument that recent
amendments to section 1385 mandate that we direct the trial court
to strike all but one of the section 12022, subdivision (b)(1) deadly
weapon enhancements.
“As amended by Senate Bill No. 81, section 1385 grants trial
courts ‘the authority’—and simultaneously imposes upon them
a duty—‘to strike or dismiss [a sentencing] enhancement’ . . . if
doing so is ‘in the furtherance of justice.’ [Citations.] Section 1385
makes clear that whether dismissal of an enhancement is ‘in the
furtherance of justice’ is a ‘discretion[ary]’ call for the trial court
to make. [Citations.] Senate Bill No. 81 amended section 1385
to fine[-]tune how a court is to exercise that discretion: Specifically,
section 1385 now enumerates nine ‘mitigating circumstances,’
and mandates that the presence of any such circumstance ‘weighs
greatly in favor of dismissing the enhancement . . . unless the court
finds that dismissal of the enhancement would endanger public
safety.’ [Citation.] Dismissal endangers public safety if ‘there is
a likelihood that the dismissal of the enhancement would result
in physical injury or other serious danger to others.’ [Citation.]”
(People v. Walker (2022) 86 Cal.App.5th 386, 395 (Walker), italics
omitted, review granted Mar. 22, 2023, S278309.)10
10 The Supreme Court granted review concerning only
whether “the amendment to . . . section 1385, subdivision (c)
that requires trial courts to ‘afford great weight’ to enumerated
mitigating circumstances [citation] create[s] a rebuttable
presumption in favor of dismissing an enhancement unless
the trial court finds dismissal would endanger public safety.”
(People v. Walker, S278309, Supreme Ct. Mins., Mar. 22, 2023.)
26
The mitigating circumstance on which Jensen relies appears
in section 1385, subdivision (c)(2)(B), which provides:
“Multiple enhancements are alleged in a single case. In this
instance, all enhancements beyond a single enhancement shall be
dismissed.” (§ 1385, subd. (c)(2)(B).)
Pointing to the word “shall” in the last sentence of
section 1385, subdivision (c)(2)(B), Jensen argues that the trial
court here erred by failing to dismiss all but one of the seven
deadly weapon use enhancements charged against him.
Considered in isolation, the subdivision’s language could
support Jensen’s interpretation. We agree, however, with the
decisions concluding that—construed in its broader statutory
context—section 1385, subdivision (c)(2)(B) does not compel
a trial court to dismiss all but one sentencing enhancement
where multiple enhancements are charged. (See, e.g., People v.
Anderson (2023) 88 Cal.App.5th 233, 239 (Anderson), review
granted Apr. 19, 2023, S278786 [construed in the “context of
the statute as a whole” “dismissal of . . . enhancements” under
section 1385, subdivision (c)(2)(B) “is not mandatory,” internal
quotations omitted]; Walker, supra, 86 Cal.App.5th at p. 396 [“[i]n
our view, the text and purpose of section 1385 in general, and
Senate Bill No. 81 in particular, as well as the canons of statutory
construction, counsel in favor of concluding that the phrase ‘all
enhancements beyond a single enhancement shall be dismissed’ in
subdivision (c)(2)(B) does not obligate trial courts to automatically
dismiss all but one enhancement whenever a jury finds multiple
enhancements to be true”].)
In particular, we find the following analysis in Anderson
persuasive:
“Here, the statement that a court ‘shall’ dismiss certain
enhancements appears as a subpart to the general provision that
27
a ‘court shall dismiss an enhancement if it is in the furtherance
of justice to do so.’ [Citation.] In other words, the dismissal of the
enhancement is conditioned on a court’s finding dismissal is in the
interest of justice. The nature of this condition is further explained
by the Legislature’s directive that the court, while ‘exercising its
discretion under this subdivision, . . . shall consider and afford
great weight’ to evidence of certain factors, and proof of one of the
factors ‘weighs greatly’ in favor of dismissal ‘unless’ the court finds
dismissal would endanger public safety. [Citation.] This language,
taken together, explicitly and unambiguously establishes: the trial
court has discretion to dismiss sentencing enhancements; certain
circumstances weigh greatly in favor of dismissal; and a finding
of danger to public safety can overcome the circumstances in favor
of dismissal. [¶] It is within these boundaries that section 1385
states the court ‘shall’ dismiss all but one enhancement . . . . The
dismissal shall occur but only if, in exercising its discretion and
giving great weight to certain factors, the court finds dismissal
is in the interests of justice or would not endanger public safety.”
(Anderson, supra, 88 Cal.App.5th at pp. 239–240, italics omitted.)
Jensen urges that Anderson and other decisions rejecting
his proposed interpretation of section 1385, subdivision (c)(2)(B)
are wrongly decided. He insists that because “courts had the
authority to dismiss enhancements in the furtherance of justice”
before Senate Bill No. 81’s enactment, the Legislature must have
intended the bill to do something more—namely, “to require
courts to do something which, pre-[Senate Bill No.] 81, they could
choose in their discretion to either grant or deny.” Jensen ignores,
however, that Senate Bill No. 81 did something more than reiterate
trial courts’ existing discretion under section 1385: It provided
new, specific guidance concerning how courts should exercise that
discretion. (Anderson, supra, 88 Cal.App.5th at p. 238 [“[p]rior
28
to January 1, 2022, section 1385 . . . did not provide direction as
to how courts should exercise [their] discretion. . . . Senate Bill
No. 81 . . . amended section 1385 to provide guidance regarding
the exercise of discretion in dismissing sentencing enhancements,”
italics omitted].)
Accordingly, we reject Jensen’s contention that section 1385,
subdivision (c)(2)(B) mandates the dismissal of all but one of the
deadly weapon enhancements imposed against him.
C. Jensen Is Entitled to 1,405 Days of Presentence
Custody Credit
Finally, we agree with the parties that the trial court must
correct the abstract of judgment to reflect that Jensen is entitled
to 1,405 days of presentence credit. The trial court granted Jensen
only 1,374 days of credit. Jensen, however, was arrested on June 4,
2018 and sentenced on April 8, 2022. He therefore is entitled to
1,405 days of presentence custody credit. (See People v. Fuentes
(2022) 78 Cal.App.5th 670, 681 [“ ‘[a] defendant is entitled to credit
for all days in presentence custody including the day of arrest and
the day of sentencing’ ”].)
29
DISPOSITION
We remand with directions to the trial court to (1) reduce
each sentence on counts 3 and 5 to 15 years to life, (2) strike each
concurrent 25-years-to-life sentence imposed on counts 2 and 4
pursuant to section 667.61, subdivision (e), (3) direct that the
sentences on counts 3 through 5 are to run concurrent to the
sentence on count 2, or clarify the legal and factual basis for its
discretionary determination to impose consecutive sentences on
those counts, and (4) correct the abstract of judgment to reflect
Jensen’s entitlement to 1,405 days of presentence custody credit.
The court shall prepare an amended abstract of judgment and
shall forward it to the California Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
30