People v. Paz

Filed 4/14/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B265251
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. LA076450
v.
JOSE RODRIGUEZ PAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael V. Jesic, Judge. Affirmed as modified.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Roberta L. Davis, Deputy Attorney
General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1100, 8.1105(b),
and 8.1110, this opinion is certified for publication with the exception
of parts 2, 3, 4, and 5 of the Discussion.
INTRODUCTION
Defendant Jose Rodriguez Paz was convicted of aggravated
kidnapping, forcible rape, forcible sodomy, and related deadly-
weapon and one-strike allegations after abducting H. Ramirez at
knifepoint and assaulting her in an isolated parking lot.1 On
appeal, he contends: (1) there is insufficient evidence to support
the sexual penetration element of sodomy; (2) trial counsel
provided constitutionally deficient representation by failing to
object to brief testimony about surveillance footage, failing to
request an instruction about how to evaluate that testimony, and
failing to object to the term rape kit; (3) the court had a sua
sponte obligation to instruct the jury to abide by the interpreter’s
translation; (4) defendant’s consecutive one-strike sentences are
unauthorized because no reasonable trier of fact could have
concluded he had a sufficient opportunity to reflect during the
attack; and (5) he must be resentenced because the court failed to
state its reasons for imposing upper terms for two enhancements.
In the published portion of this opinion, we hold that the
sexual penetration element of sodomy requires penetration past
the buttocks and into the perianal area, but does not require
penetration beyond the perianal folds or anal margin. We
conclude the evidence before us is sufficient to establish that
element. In the unpublished portion of the opinion, we reject
1 Because the victim in this case has an unusual first name and a
common last name, we refer to her by surname only. (See Cal. Rules of
Court, rule 8.90(b)(4) [nondisclosure of identity]; U.S. Census Bur.,
Frequently Occurring Surnames from the 2010 Census (Dec. 2016)
file A. [as of April 5, 2017] [Ramirez is 28th most
common surname in the United States].)
2
defendant’s remaining arguments, modify the judgment to clarify
the statutory basis for defendant’s sentence, and affirm as
modified.
PROCEDURAL BACKGROUND
By amended information filed April 20, 2015, defendant
was charged with aggravated kidnapping (Pen. Code, § 209,
subd. (b)(1); count 2);2 kidnapping (§ 207, subd. (a); count 3);
forcible rape (§ 261, subd. (a)(2); count 4); and sodomy by force
(§ 286, subd. (c)(2)(A); count 5).3 As to counts 2 and 3, the
information alleged that defendant personally used a knife
(§ 12022, subd. (b)(1)). As to counts 4 and 5, the information
alleged that defendant used a deadly weapon in the commission
of a sex offense (§ 12022.3, subd. (a)); was armed with a deadly
weapon in the commission of a sex offense (§ 12022.3, subd. (b));
kidnapped the victim within the meaning of the One Strike Law
(§ 667.61, subd. (a), (d)(2) [movement substantially increased risk
of harm], (e)(1) [simple kidnap]); and used a deadly weapon
within the meaning of the One Strike Law (§ 667.61, subds. (a),
(e)(3)). The information also alleged two prison priors (§ 667.5,
subd. (b)). Defendant pled not guilty and denied the allegations.
After a bifurcated trial at which the victim testified with
the assistance of a Spanish-language interpreter and defendant
did not testify, the jury found defendant guilty of all counts and
2 All undesignated statutory references are to the Penal Code.
3 The original information, filed December 1, 2014, also charged
defendant with attempted carjacking (§ 664/215, subd. (a); count 1) and
alleged that he personally used a firearm in the commission of the
offense (§ 12022.53, subd. (b)). That charge and enhancement were
dismissed on December 30, 2014.
3
found the allegations true. Defendant admitted the prior
convictions.
After a contested hearing, the court sentenced defendant to
70 years to life. The court selected count 4 (§ 261, subd. (a)(2);
rape) as the base term and sentenced defendant to 35 years to
life—a one-strike term of 25 years to life (§ 667.61, subds. (a), (d))
plus the high term of ten years for the deadly-weapon
enhancement (§ 12022.3, subd. (a) [personal use]). The court
imposed an identical sentence for count 5 (§ 286, subd. (c)(2)(A)),
to run consecutively. The court stayed count 2 (§ 209,
subd. (b)(1)) and its related enhancement under section 654 and
dismissed count 3 (§ 207, subd. (a)) because it was a lesser-
included offense of count 2. The court struck the prison priors
(§ 667.5, subd. (b)).
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
On August 16, 2012, sometime before sunrise, Ramirez left
her home in Van Nuys and walked toward her bus stop on Van
Nuys Boulevard. Suddenly, a man later identified as defendant
grabbed her from behind and put her in a chokehold. He told her
to walk. Ramirez struggled but was unable to get free.
Defendant pushed her across the street; he remained behind her,
with his arm around her neck. As Ramirez continued to struggle,
defendant grabbed her hand and placed it on a knife he held to
her back; he said he would stab her if she stopped walking.
Defendant took Ramirez several blocks away to an alley adjacent
to an apartment building on Victory Boulevard. They walked
down the alley to a parking area in back. The parking area—
essentially a large carport—was deserted.
4
Defendant directed Ramirez to the back corner between a
wall and a parked car. He told her to undress. When she
refused, defendant removed her pants and underwear. He
repeatedly told Ramirez to lie down, but she refused. Defendant,
who was standing behind her, touched “behind” Ramirez with his
penis and “started having anal sex with [her].” The act caused
her pain. She told defendant he was hurting her, but he did not
stop. At some point, defendant pushed Ramirez to the ground
and penetrated her vagina with his penis.
When Ramirez saw headlights from a car driving by, she
told defendant the police were on their way. He stopped the
assault and said, “Tell him I’m your boyfriend.” Ramirez agreed.
Then she got dressed and walked back to the street. Defendant
caught up with Ramirez and demanded her phone, but she
refused. She told defendant to leave, then crossed the street and
tried to get help from a passerby. When the woman ignored her,
Ramirez called her sister, who drove her to the police station.
At around 9:00 a.m., officers drove Ramirez in a police car
as she directed them to the site of her abduction, along the path
defendant forced her to walk, and to the parking lot where the
attack occurred. Ramirez showed the officers the exact location
of the assaults, and the officers secured the scene and dusted a
nearby car for fingerprints; the prints were later matched to
defendant.
At about 10:00 a.m., officers took Ramirez to a medical
facility, where forensic nurse examiner Cynthia Urena examined
her. Urena observed an abrasion on Ramirez’s vaginal vestibule
and a bruise to the hymen; both injuries were caused by force,
pressure, and movement. Ramirez also had two lacerations in
her perianal folds, both of which were caused by blunt force.
5
Urena collected swabs from Ramirez’s face, mouth, neck, vagina,
cervix, perianal area, and rectum. DNA extracted from the
semen found in Ramirez’s vagina matched defendant’s DNA.
CONTENTIONS
Defendant contends there is insufficient evidence to
support his sodomy conviction because the prosecution failed to
establish the “element of anal penetration by a penis” beyond a
reasonable doubt. He also argues he received ineffective
assistance of trial counsel because counsel failed to object to
testimony about out-of-court surveillance footage, failed to ask
the court to instruct with CALCRIM No. 333 about lay opinion
testimony, and failed to object to the prosecution’s use of the term
rape kit. Finally, he contends that the court had a sua sponte
obligation to instruct the jury that it must abide by the
interpreter’s translation of Ramirez’s testimony, and that his
sentence is unauthorized because the court failed to state its
reasons for imposing upper terms for two enhancements and
lacked discretion to impose consecutive one-strike terms.
DISCUSSION
1. There was sufficient evidence of penetration to
support count 5.
Defendant contends there is insufficient evidence of anal
penetration to support his conviction for sodomy by force (§ 286,
subd. (c)(2)(A); count 5). He argues Ramirez “never testified that
[defendant] put his penis inside her anus or rectum,” and though
there was evidence of trauma to Ramirez’s perianal area, there
was no injury to the anus itself. The People argue Ramirez’s
testimony that defendant “started having anal sex with” her is
6
sufficient to satisfy the disputed element. As a matter of first
impression, we conclude penetration beyond the buttocks and
into the perianal folds is sufficient to establish the requisite
penetration—namely, sexual penetration of the anal opening.
Taken together, Ramirez’s testimony and the injuries to the
perianal folds were sufficient to support the verdict.
1.1. Elements of sodomy
A criminal defendant may not be convicted of a crime
unless the prosecution proves every fact necessary for conviction
beyond a reasonable doubt. (U.S. Const., 5th Amend.; U.S.
Const., 14th Amend.; see Cal. Const., art. I, §§ 7, 15; In re
Winship (1970) 397 U.S. 358, 364; Jackson v. Virginia (1979) 443
U.S. 307, 316.) This constitutional principle is so fundamental to
our system of justice that criminal defendants are always
“afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken
by the trial and appellate courts.” (United States v. Powell (1984)
469 U.S. 57, 67.)
To convict a defendant of forcible sodomy (§ 286, subd.
(c)(2)(A)), the People must prove:
◦ the defendant committed an act of sodomy with
another person;
◦ the other person did not consent to the act; and
◦ the defendant accomplished the act by force,
violence, duress, menace, or fear of immediate
and unlawful bodily injury to the victim or
another person.
7
(§ 286, subd. (c)(2)(A).) Sodomy, in turn, “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),
emphasis added.) Before we can determine whether there is
sufficient evidence of sexual penetration, however, we must
define that term.
1.2. Sexual penetration
At common law, any act of sodomy was criminal.
(4 Blackstone, Commentaries 215–216.) When California codified
the common law, the new Penal Code contained the same blanket
prohibition. Section 286 provided, “Every person who is guilty of
the infamous crime against nature, committed with mankind or
with any animal, is punishable by imprisonment … .” (§ 286, as
enacted by Pen. Code of 1872.) The codifiers also enacted a
companion statute, section 287, which provided, “Any sexual
penetration, however slight, is sufficient to complete the crime
against nature.” (§ 287, as enacted by Pen. Code of 1872; see
People v. Martinez (1986) 188 Cal.App.3d 19 [discussing history
of sodomy statute and penetration requirement].) In this regard,
section 287 mirrored section 263, which provided that in cases of
rape, “Any sexual penetration, however slight, is sufficient to
complete the crime.” (§ 263, as enacted by Pen. Code of 1872.)4
4 Some scholars have argued that the focus on penetration legally
encodes a male perspective on women and links current sexual
violations to historical concepts of male property. (See Langston, No
Penetration—And It’s Still Rape (1998) 26 Pepperdine L. Rev. 1, 3–4,
10, 13–15; see also MacKinnon, Sex and Violence: A Perspective in
Feminism Unmodified (1987) pp. 85–92 [emphasis on penetration
defines rape from a male sexual perspective].) Such concerns led some
8
The Legislature did not decriminalize sodomy until 1975,
when it limited section 286 to three specified circumstances.
(Stats. 1975, ch. 71, § 7, p. 133.) At the same time, it amended
section 287 to refer to “sodomy” rather than “the crime against
nature.” (Stats. 1975, ch. 71, § 9, p. 134.) Although section 287
was subsequently consolidated into section 286 (Stats. 1991,
ch. 144, § 2, p. 1353), the Legislature has not made any other
change to the text.
Despite these amendments, section 286 still does not define
sexual penetration—but section 289 does. Section 289 provides:
“ ‘Sexual penetration’ is the act of causing the penetration,
however slight, of the genital or anal opening of any person or
causing another person to so penetrate the defendant’s or another
person’s genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance,
instrument, or device, or by any unknown object.” (§ 289,
subd. (k)(1), emphasis added.)
Section 289, penetration by object, was enacted in 1978 to
correct the disparate treatment accorded different forms of
nonconsensual vaginal and anal penetration.5 (Stats. 1978,
states to deemphasize or redefine the penetration requirement when
they amended their rape statutes in the 1970s and 1980s. California
was not one of those states. (See Shams, Rape (2002) 3 Geo. J. Gender
& L. 609, 611–613.)
5 Section 287 provided an unusually detailed description of the
prohibited conduct; most treatises tended to be more circumspect.
Blackstone, for example, spent seven pages of his Commentaries
discussing various aspects of rape, but limited his discussion of sodomy
to Latin maxims. (See, e.g., 4 Blackstone, Commentaries 216
[“ ‘peccatum illud horribile, inter christianos non nominadum’ ” (that
horrible crime not to be named among Christians)].) Nor did judges
9
ch. 1313, § 1, p. 4300; Health & Welf. Agency, Enrolled Bill Rep.
on Sen. Bill No. 1640 (1977–1978 Reg. Sess.) Aug. 17, 1978, p. 1
(hereafter Enrolled Bill Rep.) [“The measure was introduced … to
correct a deficiency in existing law.”].) Until that point, a
defendant who used his penis to penetrate a victim could be
convicted of rape or sodomy—but a defendant who used an object
to commit the same act could not. (People v. Harrison (1989) 48
Cal.3d 321, 327–328.)
Because section 289 was enacted to correct this problem—
not to create a wholly novel offense—it shares “a very close
relationship” with the rape and sodomy statutes. (People v.
Quintana (2001) 89 Cal.App.4th 1362, 1369–1370; Enrolled Bill
Rep., supra, p. 1 [bill “was substantially amended during the
course of hearings so that its language parallels existing forcible
sodomy and oral copulation statutes. … Its main benefit is to
make more specific the elements which constitute this offense,
thus allowing for more effective prosecution.”]; Assem. Com. on
Crim. J., Analysis of Sen. Bill. 1640 (1977–1978 Reg. Sess.) as
amended Aug. 14, 1978, p. 2 [“The language of this bill currently
parallels the language of the forcible sodomy and oral copulation
statutes.”].) In short, the Legislature did not intend to create a
new standard; it simply made explicit what had theretofore been
implicit.6 (See People v. Martinez, supra, 188 Cal.App.3d at p. 25
think additional detail was necessary. (See, e.g., People v. Williams
(1881) 59 Cal. 397, 398 [“Every person of ordinary intelligence
understands what the crime against nature with a human being is.”].)
6 Indeed, the bill was originally drafted to redefine rape to include
vaginal penetration by any part of the human body or any foreign
object. (Sen. Com. on Jud., Analysis of Sen. Bill. 1640 (1977–1978 Reg.
Sess.) as introduced, p. 1.)
10
[“ ‘when the Legislature enacts a law “framed in the identical
language” of a previous law on the same subject, it is presumed
that the new law has the same fundamental meaning as the old
law.’ [Citation.]”].)
As if to underscore that point, in 1986, the Legislature tried
to bring additional consistency to the four “major sex offenses of
rape, sodomy, oral copulation, and sexual penetration” by
criminalizing the same conduct in each offense. (People v. White
(2017) 2 Cal.5th 349, 358–359 (White); see id. at pp. 357–360
[discussing parallel construction of sex crime statutes]; see also
Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3485 (1985–
1986 Reg. Sess.) as amended June 30, 1986, p. 2 [“This bill would
conform the criteria used to determine the commission of each of
the four major sex offenses”]; Sen. Com. on Rules, Analysis of
Assem. Bill No. 3485 (1985–1986 Reg. Sess.) as amended Aug. 20,
1986, p. 5 [bill’s “author believes that the ‘circumstantial criteria
used to determine the commission of each of the four major sex
offenses …’ should be consistent.”].) Lawmakers hoped that by
standardizing the substantive elements of each offense, they
could “reduce the potential for dismissal of cases containing
circumstances inadvertently omitted from the definition of the
specific crime.” (Sen. Com. on Rules, supra, at p. 2.)
In light of this intent, the California Supreme Court
recently construed four sex offense statutes—rape (§ 261), oral
copulation (§ 288a), sodomy (§ 286), and object penetration
(§ 289)—as reflecting a consistent legislative scheme despite their
different language. The Court explained: “Substantively, the
provisions regarding the four major sex crimes parallel each
other. The conduct and mental state of the perpetrator … that,
when accompanying the acts …, transform these sexual acts into
11
crimes are essentially identical.” (White, supra, 2 Cal.5th at
p. 357.) Though White did not specifically hold that section 289
applies to the other offenses, the opinion compels that result.
(See also People v. Harrison, supra, 48 Cal.3d at pp. 327–334
[discussing penetration requirements in rape and sodomy
statutes, both of which “relate to the same subject matter—
unlawful penetrations of the genitals and anus”]; People v.
Quintana, supra, 89 Cal.App.4th at pp. 1369 [“It would be
anomalous and confusing if … ‘sexual penetration’ in section 289
meant something other than ‘sexual penetration’ in section 263,
where those words first appeared.”], 1370 [section 289 “is a form
of rape, and there is no reason to distinguish the degrees of
penetration required to commit different forms of this same
crime.”]; People v. Romanowski (Mar. 27, 2017, S231405)
__ Cal.5th __ [2017 Cal. Lexis 2326, *21–22] [definitional statute
that “sets the ground rules for how theft crimes are adjudicated”
applies to crimes “set out in a variety of other sections.”].)
We therefore hold that the definition of sexual penetration
in section 289 applies equally to the sexual penetration element
of section 286.7 Section 289 defines sexual penetration, in
relevant part, as “the act of causing the penetration, however
slight, of the … anal opening.” (§ 289, subd. (k)(1).) Thus, the
question before us is whether there is sufficient evidence that
defendant’s penis penetrated Ramirez’s anal opening.8
7 We express no opinion on whether section 289’s intent
requirement also applies to section 286.
8 We note that CALCRIM No. 1030, the pattern jury instruction
given in this case, defines sodomy as “any penetration, no matter how
slight, of the anus of one person by the penis of another person.” It
does not address the sexual penetration element of the sodomy statute
12
1.3. Anal opening
Defendant contends he touched—but did not penetrate—
Ramirez’s anal opening.9 But the distinction between touching
and penetration depends on the meaning of anal opening—and
contrary to defendant’s implication, that term is not synonymous
with anus, either anatomically or legally. For the reasons
discussed below, we conclude forcible sodomy requires something
more than penetration of the buttocks (see State v. A.M.
(Wash.Ct.App. 2011) 163 Wash.App. 414 [penetration of buttocks
not sufficient]; State v. Wells (Ohio 2001) 740 N.E.2d 1097[same]), but does not require penetration past the anal verge or
into the anal canal.
1.3.1. Plain meaning
Unlike sexual penetration, the Penal Code does not define
anal opening. The term’s meaning, therefore, is a “question[] of
statutory interpretation that we must consider de novo.” (People
v. Prunty (2015) 62 Cal.4th 59, 71.) As with any case involving
statutory interpretation, our primary goal is to ascertain and
effectuate the lawmakers’ intent. (People v. Park (2013) 56
Cal.4th 782, 796.) To determine intent, we first examine the
statutory language and give the words their ordinary meaning.
(Ibid.) “Words and phrases must be construed according to the
context and the approved usage of the language; but technical
(§ 286). As neither party challenges this instruction, we do not address
it. Nevertheless, we invite the Advisory Committee on Criminal Jury
Instructions to consider revisions to CALCRIM No. 1030.
9 Defendant also argues there is insufficient evidence that he used
his penis to effect the penetration; we address that issue separately.
13
words and phrases, and such others as may have acquired a
peculiar and appropriate meaning in law, must be construed
according to such peculiar and appropriate meaning.” (§ 7,
subd. (16); see People v. Gonzales (Mar. 23, 2017) __ Cal.5th __
[2017 Cal. Lexis 2091, *19–20 & fn. 12] [because term of art
“must be understood as it is defined, not in its colloquial sense,”
courts must assume the Legislature knew the ramifications of its
word choices].)
If statutory language is unambiguous, its plain meaning
controls; if the statutory language is ambiguous, “ ‘ “we may
resort to extrinsic sources, including the ostensible objects to be
achieved and the legislative history.” [Citation.] Ultimately we
choose the construction that comports most closely with the
apparent intent of the lawmakers, with a view to promoting
rather than defeating the general purpose of the statute.
[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
321.) We begin by examining the term’s plain meaning.10
10 While courts can sometimes glean a term’s meaning by resorting
to the dictionary, dictionaries are of limited use here. Anal opening
appears to be a legislative invention, and as such, has not been defined
by lexicographers. As for the term’s constituent parts, the Oxford
English Dictionary, for example, defines anal as “the excretory opening
of the digestive tract” (“anal, adj.” OED Online. Oxford University
Press. [as of April 10, 2017]); it defines opening as an “aperture in
the body; a bodily orifice” (“opening, n.” OED Online. Oxford
University Press. [as of April 10, 2017]). While these
definitions provide a general location, they do not tell us where the
opening begins and ends, and do not help us ascertain what, exactly,
needs to be penetrated.
14
The anus contains two sections—a mucosa-lined anal canal
at the top and an epidermis-lined perianal margin at the bottom.
(Internat. Agency for Research on Cancer, World Health
Organization Classification of Tumours. Pathology and Genetics
of Tumours of the Digestive System (Aaltonen & Hamilton edits.,
2000) Tumours of the Anal Canal, p. 147 (hereafter IARC).) At
the top, the rectum connects the large intestine to the anal canal.
(Taber’s Cyclopedic Medical Dictionary (16th ed.1989) p. 1570.)
At the bottom, the anal verge connects the end of the anal canal
to the anal margin. (Mills (3d ed. 2007) Histology for
Pathologists, ch. 27, p. 664 (hereafter Mills) [“The anal verge can
be defined as the point (line) where the walls of the anal canal
come in contact in their normal resting state.”]; Cal. Off. of
Emergency Services, Cal. Medical Protocol for Examination of
Sexual Assault and Child Sexual Abuse Victims (2001) appen. N
(hereafter OES, Medical Protocol) [defining anal verge as “the
tissue overlying the subcutaneous external anal sphincter at the
most distal portion of the anal canal (anoderm) and extends
exteriorly to the margin of the anal skin.”].)
“The anal margin begins approximately at the anal
verge … . It represents the transition from the squamous mucosa
to the epidermis-lined perianal skin, and extends to the perianal
skin.” (Ryan & Willett (2011) Classification and Epidemiology of
Anal Cancer, figure 1.) The outer “boundary [of the anal margin]
is indistinct …, and anatomically;” its location varies by person.
(American Joint Committee on Cancer (6th ed. 2002) Staging
Manual, ch. 13, p. 125.)
“The perianal skin (the anal margin) is defined by the
appearance of skin appendages.” (IRAC, supra, at p. 147; see
Mills, supra, at p. 670 [“At the lower border of the anal canal, the
15
dull, wrinkled perianal skin with hair follicles is obvious”].)
However, the “perianal region is not well defined” (Mills, supra,
at p. 667), and “[t]here exists no generally accepted definition of
its outer limit.” (IRAC, supra, at p. 147; see OES, Medical
Protocol, supra, at appen. M, p. 27 [defining perianal skin folds as
“[w]rinkles or folds of the perianal skin radiating from the anus,
which are created by the contraction of the external anal
sphincter.”].) Indeed, “much confusion continues about
definitions and nomenclature” of these structures generally.
(Mills, supra, p. 664; see, e.g., id. at p. 665 [“It would seem
natural to start with a definition of the anal canal; but, because
there are several definitions and new terms are still introduced, a
description of the anatomical landmarks and epithelial zones
may be the best introduction to this never-ending discussion.”];
Rociu et. al, Normal Anal Sphincter Anatomy (2000) 217
Radiology 395–401, 399 [“There have been many contradictory
and often confusing theories of the anatomy of this region.”].) It
appears, therefore, that the terms anal verge, anal margin,
perianal area, perianal folds, and perianal skin all describe at
least part of the anal opening—the outer boundary of the anus.
Given that medical professionals cannot agree on what to
call the areas between the rectum and the buttocks, it is not
surprising that the courts—which until recently referred to
sodomy in wholly euphemistic terms—have struggled as well.
(See, e.g., People v. Gann (1968) 259 Cal.App.2d 706, 710 [“On
account of the degrading nature of the crime of sodomy it is
uniformly held that it is not necessary to describe the offense
with the same particularity which is required in other crimes.”],
712 [“the commonly understood meaning of the euphemism,
‘infamous crime against nature,’ in section 286 of the Penal Code,
16
is sufficiently definite to apprise the public generally of the
conduct which is prohibited thereby, sic, copulation per anum”].)
In light of this terminological confusion, we conclude that
anal opening lacks a sufficiently plain meaning to end our
inquiry. We therefore turn to other forms of statutory
interpretation.
1.3.2. Construction with related statutes
While we look first at the words of a statute, we do not
consider statutory language in isolation; rather, we read the
statute “as a whole, harmonizing the various elements by
considering each clause and section in the context of the overall
statutory framework.” (People v. Jenkins (1995) 10 Cal.4th 234,
246.) We construe all parts of a statute together, without
according undue importance to a single or isolated portion.
(Cooley v. Superior Court (2002) 29 Cal.4th 228.) Where statutes
are inconsistent, we attempt to provide a harmonious
interpretation and give effect to every provision, so that one code
section does not destroy another. (People v. Jenkins, supra, at
p. 246; see 2A Sutherland Statutory Construction (7th ed., rev.
Apr. 2014) § 46:6, pp. 238–252.) Thus, a “ ‘word or phrase will be
given the same meaning each time it appears in a statute … .’ ”
(Cooley v. Superior Court, supra, at p. 255.)
As discussed, the Penal Code defines sodomy as “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).) Sexual penetration, in turn, is penetration of the anal
opening. (§ 289, subd. (k)(1).) Taken together, the crime of
sodomy requires the perpetrator to penetrate the anal opening
and to make contact with the anus. To give effect to both
17
requirements, the anus must lie somewhere beyond the anal
opening.11
Moreover, such a construction avoids surplusage and
harmonizes the sexual penetration element of sodomy and object
penetration with the anal contact element of sodomy and oral
copulation. (See White, supra, 2 Cal.5th at p. 357 [substantive
elements of rape, sodomy, oral copulation, and object penetration
are the same].) “Oral copulation is the act of copulating the
mouth of one person with the sexual organ or anus of another
person.” (§ 288a, subd. (a).) “ ‘[A]ny contact, however slight,
between the mouth of one person and the sexual organ or anus of
another person constitutes oral copulation.’ ” (People v. Dement
(2011) 53 Cal.4th 1, 41–42, abrogated on other grounds by People
v. Rangel (2016) 62 Cal.4th 1192, 1216.) Thus, contact with the
anus does not require penetration. (Id. at pp. 41–44.)
This construction also harmonizes the elements of sodomy,
object penetration, and oral copulation with the sexual
intercourse element of rape. (§ 261, subd. (a) [defining rape as
nonconsensual “sexual intercourse.”].) While section 263 provides
that sexual intercourse requires penetration, the Penal Code does
11 The presence of both requirements differentiates California’s
sodomy statute from laws in other states that refer to either
penetration of the anal opening or contact with the anus, but not both.
(See, e.g., Watkins v. State (Fla.Ct.App. 2010) 48 So.3d 883, 884
[evidence the victim placed her tongue “on” the defendant’s anus was
insufficient to establish slight penetration of the anus]; Richards v.
State (Fla.Ct.App. 1999) 738 So.2d 415, 418 [in statute phrased in the
alternative, “union” requires “contact with the relevant portion of
anatomy, whereas penetration requires some entry into the relevant
part, however slight.”]; State v. Gallagher (N.J.Sup.Ct.App. 1995) 668
A.2d 55, 61 [“anal intercourse” requires insertion “into the anus”;
touching insufficient].)
18
not specify what has to be penetrated for sexual intercourse to
occur. The Supreme Court has described the requirement as
“vaginal penetration,” but has never held that section 261
requires vaginal penetration as it is commonly understood.
(People v. Stitely (2005) 35 Cal.4th 514, 554–555.)
That point bears emphasis because notwithstanding the
term’s apparently plain meaning, appellate courts have long held
that vaginal penetration does not require penetration of the
vagina. (People v. Karsai (1982) 131 Cal.App.3d 224, 232
(Karsai).) Rather, “[p]enetration of the external genital organs is
sufficient to constitute sexual penetration and to complete the
crime of rape even if the rapist does not thereafter succeed in
penetrating into the vagina.” (Ibid. [victim’s testimony that
defendant pushed his penis between the “lips” of her vagina was
sufficient to support rape conviction]; see also People v. Dunn
(2012) 205 Cal.App.4th 1086, 1097 [relying on Karsai, sexual
intercourse required proof of “penetration of [the victim’s] labia
majora, not her vagina”].) In short, although the term vagina has
a well-established anatomical meaning, California courts have
long treated it as a term of art synonymous with “female private
parts.” (See, e.g., People v. Coleman (1942) 53 Cal.App.2d 18, 26
[sufficient evidence defendant used his “private parts” to
penetrate victim’s “private parts”].)12
12 Karsai was disapproved on other grounds in People v. Jones
(1988) 46 Cal.3d 585, 600, fn. 8, but remains good law on this point.
Fifteen years after Karsai held that the “penetration which is required
is sexual penetration and not vaginal penetration[]” (Karsai, supra,
131 Cal.App.3d at p. 232), the California Supreme Court began
referring to rape’s sexual intercourse element as “vaginal penetration.”
(People v. Holt (1997) 15 Cal.4th 619, 675–676.) While that language
casts some doubt on Karsai’s continued validity, the Court has never
19
The “essential guilt” of both rape and forcible sodomy
“consists in the outrage to the person and feelings of the victim.”
(§ 263.) Consequently, courts are inclined to take a broad view of
genital boundaries. As noted above, it appears the perianal folds,
which radiate from the anus, comprise the outer boundary of the
anus (OES, Medical Protocol, supra, at appen. M, p. 27); thus, the
outer edge of the perianal area forms the edge of the anal
opening. Even if the perianal area merely adjoins the anal
opening, however, statutory consistency—particularly among the
“four major sex crimes”—compels the same conclusion. (See
White, supra, 2 Cal.5th at p. 359 [statutes “for which the concept
of penetration is relevant contain similar provisions regarding
the extent of the required penetration [citations].”].) The
perianal area it is undoubtedly part of the external anal
structure—just as the labia, though not part of the vagina, are
undoubtedly part of the external female genitalia. Both areas are
part of a victim’s “private parts.” We see no reason to adopt
different penetration rules for the anus and the vagina.13
We therefore hold that sexual penetration requires
penetration of the tissues that surround and encompass the lower
explained what it means by this term, and appellate courts continue to
rely on Karsai.
13 We are mindful that while California courts only require
penetration of the external genitalia, other states require additional
penetration. For example, when construing anal cavity, the Ohio
Supreme Court concluded that cavity refers to a space inside the body,
and that anal cavity refers to the lower portion of the alimentary canal.
Thus, Ohio law required penetration of an inner genital structure.
(State v. Wells, supra, 740 N.E.2d at p. 1099.) Since California law,
unlike Ohio law, does not require penetration of the anal cavity, our
statute does not carry the same connotation.
20
border of the anal canal—that is, it requires penetration past the
buttocks and into the perianal area but does not require
penetration beyond the perianal folds or anal margin.
We emphasize, however, that mere penetration of the
buttocks is not sufficient to establish penetration of the anal
opening. “An intrusion into the space between a person’s
buttocks, while perhaps a necessary step on the path to intrusion
of the anal opening, is not, in itself, an intrusion into the anal
opening.” (In re B.H. (R.I. 2016) 138 A.3d 774, 782, & fn. 9 [citing
cases]; see Downey v. State (Ind.Ct.App. 2000) 726 N.E.2d 794,
797 [“Despite their proximity, the buttocks and anus are not the
same, and an inference that contact with the buttocks necessarily
includes contact with the anus cannot be made beyond a
reasonable doubt” absent other evidence].)
In all sex-crime cases requiring penetration, prosecutors
must elicit precise and specific testimony to prove the required
penetration beyond a reasonable doubt. (See, e.g., State v.
Pullman (Utah Ct.App. 2013) 306 P.3d 827, 833 [“Sex crimes are
defined with great specificity and require concomitant specificity
of proof.”].) We caution prosecutors not to use vague, euphemistic
language and to ask follow-up questions where necessary.14
14 For example, the prosecutor in this case asked the forensic nurse
examiner about injuries to Ramirez’s “anal area” and “vaginal area,”
injuries he encouraged the nurse to describe “in laymen’s terms.” As
we will discuss, the nurse’s detailed, precise testimony—provided
despite the prosecutor’s efforts to limit her to generalities—was the
critical evidence of penetration in this case.
21
1.4. There was sufficient evidence defendant
penetrated Ramirez’s anal opening with his
penis.
Having determined the type of sexual penetration section
286 requires, we turn to the question before us—is the evidence
sufficient to support the verdict?
In assessing the sufficiency of the evidence, we review the
entire record to determine whether any rational trier of fact could
have found the defendant guilty beyond a reasonable doubt.
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) “The record must
disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (Ibid.)
In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) The same standard applies where the conviction rests
primarily on circumstantial evidence. (People v. Thompson
(2010) 49 Cal.4th 79, 113.) We may not reweigh the evidence or
resolve evidentiary conflicts. (People v. Young (2005) 34 Cal.4th
1149, 1181.) Accordingly, we may not reverse for insufficient
evidence unless it appears “ ‘that upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
Ramirez testified as follows:
Q. And did part of his body touch you?
A. Yes.
22
Q. What part of his body?
A. His penis.
Q. What part of your body did he touch with his
penis?
A. Behind me.
Q. Okay. When you say behind you, are you
referencing a specific part of your body?
A. Yes. He started having anal sex with me.
The prosecutor also asked Ramirez, “Was he moving his body in
and out of yours?” She responded, “Yes.” Ramirez explained that
the act caused her pain. Urena, the forensic nurse examiner,
testified that she discovered two tears or lacerations located
across from each other in Ramirez’s perianal folds. The injuries
were caused by some sort of blunt force.
In People v. Gonzalez, the court found that the victim’s
testimony that the defendant “tried to enter a little bit, but it
hurt a lot” supported a finding of slight penetration, which when
combined with circumstantial evidence of rectal pain and
bleeding, was sufficient to sustain the sodomy conviction. (People
v. Gonzalez (1983) 141 Cal.App.3d 786, 790.) Here, we conclude
the blunt-force injuries to the top and bottom of Ramirez’s
perianal folds, when combined with her testimony that defendant
“started having anal sex” with her and her agreement that he
moved “his body in and out” of hers, were sufficient to prove the
slight penetration required under section 286.
Defendant argues in the alternative that Ramirez’s
“testimony at best established only the possibility of penile
penetration, with digital penetration being just as likely, since
[defendant] was behind [Ramirez]. There was no testimony that
23
[Ramirez] saw [defendant’s] penis, or saw [his] penis penetrate
her anus.” Thus, defendant speculates, Ramirez’s pain—and,
presumably, the injuries to the perianal folds—may have been
caused by something other than defendant’s penis.
Defendant misunderstands the relevant standard of review.
“ ‘Substantial evidence’ ” is a “ ‘deferential’ standard.” (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052.) As we have explained,
the “inquiry examines the record in the light most favorable to
the judgment and upholds it if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of
fact could have relied in reaching the conclusion in question.
Once such evidence is found, the substantial evidence test is
satisfied. [Citation.] Even when there is a significant amount of
countervailing evidence, the testimony of a single witness that
satisfies the standard is sufficient to uphold the finding.” (Ibid.)
Ramirez testified that defendant touched her body “behind”
with his penis, that this meant he “started having anal sex” with
her, that he moved his body in and out of her body, and that it
caused her pain. The jury could reasonably infer from this
testimony that Ramirez believed that defendant penetrated her
with his penis rather than with anything else; absent an
objection, the jury was entitled to credit that opinion.15
We conclude the evidence was sufficient to support
defendant’s conviction for count 5.
2. Ineffective assistance of counsel
“The Sixth Amendment secures to a defendant who faces
incarceration the right to counsel at all ‘critical stages’ of the
15 For example, the defense did not object that this testimony was
an improper subject of lay opinion testimony. (See Evid. Code, § 800.)
24
criminal process. [Citations.]” (Iowa v. Tovar (2004) 541 U.S. 77,
87; see People v. Doolin (2009) 45 Cal.4th 390, 417 [“A criminal
defendant is guaranteed the right to the assistance of counsel by
the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution.”].) Defendant
contends he was denied constitutionally adequate representation
when his attorney (1) failed to object to brief testimony about a
grainy surveillance video that was not admitted into evidence,
(2) failed to ask the court to instruct the jury with CALCRIM
No. 333 regarding lay opinion testimony, and (3) failed to object
to the use of the term rape kit.
Under either the federal or state constitution, the
“benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as
having produced a just result.” (Strickland v. Washington (1984)
466 U.S. 668, 686 (Strickland).) To establish ineffective
assistance, defendant must satisfy two requirements. (Id. at
pp. 690–692.) First, he must show his attorney’s conduct was
unreasonable “under prevailing professional norms”—that is,
that it fell “outside the wide range of professionally competent
assistance.” (Id. at pp. 688, 690.) This requires him to establish
“that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” (Id. at p. 687.)
Then, the defendant must demonstrate that the deficient
performance was prejudicial—i.e., there is a reasonable
probability that but for counsel’s failings, the result of the
proceeding would have been different. (Strickland, supra, 466
U.S. at pp. 687 [defendant must show “counsel’s errors were so
25
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.”], 694.) “It is not sufficient to show the alleged
errors may have had some conceivable effect on the trial’s
outcome; the defendant must demonstrate a ‘reasonable
probability’ that absent the errors the result would have been
different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
“Unless a defendant makes both showings, it cannot be said
that the conviction … resulted from a breakdown in the
adversary process that renders the result unreliable.”
(Strickland, supra, 466 U.S. at p. 687.) Accordingly, we “need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.” (Id. at p. 697.)
The California Supreme Court has held that the Watson
“reasonable probability” standard for state law error is identical
to the similarly-phrased prejudice prong for ineffective assistance
under Strickland. (People v. Watson (1956) 46 Cal.2d 818(Watson); Richardson v. Superior Court (2008) 43 Cal.4th 1040,
1058–1059.) Under Watson, we may reverse only where a
defendant can establish “that it is reasonably probable that a
result more favorable to [him] would have been reached in the
absence of the error.” (Watson, supra, at p. 836.) A reasonable
probability “does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.
[Citations.]” (College Hospital, Inc. v. Superior Court (1994)
8 Cal.4th 704, 715.) An error is prejudicial whenever the
defendant can “ ‘undermine confidence’ ” in the result achieved at
trial. (Ibid.)
Defendant has not established that any errors were
prejudicial. Accordingly, we find no constitutional violation.
26
2.1. Failure to object to the surveillance video
Detective Marjan Mobasser testified that in the course of
the investigation, she viewed surveillance footage from a business
adjacent to the crime scene; the video was not admitted into
evidence, but Mobasser explained what she saw. The footage
showed two people from behind. Based on their height and
weight, one person appeared to be male, but the video was so
grainy, Mobasser could not identify either person. The time
stamp on the video corresponded to the abduction timeline
Ramirez had provided. Mobasser’s testimony on this topic
consumed four transcript pages—about 22 sentences. Defendant
insists that trial counsel should have objected.16
Mobasser’s testimony was brief, and the prosecutor did not
rely on it in closing argument. And while the testimony tended to
corroborate Ramirez’s overall account, it did not link defendant to
the crime. Mobasser made no attempt to identify anyone on the
video. To the contrary, she testified that despite meeting
16 Though he acknowledges evidentiary errors are not subject to
appellate review absent an objection below (Evid. Code, § 353, subd. (a)
[to preserve evidentiary error, party must make a timely objection in
the trial court “so stated as to make clear the specific ground of the
objection or motion.”]; People v. Partida (2005) 37 Cal.4th 428, 433–434
[objection requirement gives court a concrete legal proposition to pass
on, gives the offering party an opportunity to cure the defect, and
prevents abuse]), and acknowledges that he did not object, defendant
appears to argue the issue is cognizable on appeal because the
admission of irrelevant testimony amounts to a non-waivable violation
of due process. We disagree. The rules of evidence are not self-
executing, and section 1044 did “not abolish or supersede the rules of
trial objection or appellate waiver.” (People v. Arias (1996) 13 Cal.4th
92, 159–160; People v. Ponce (1996) 44 Cal.App.4th 1380, 1386–1388
[section 1044 codifies court’s inherent duty to control proceedings].)
27
Ramirez, she did not know whether Ramirez was one of the
people she saw. That testimony was consistent with the defense
theory of the case—that Ramirez was telling the truth about the
attack, but defendant was not her attacker.
It was also consistent with defense counsel’s trial strategy.
In his opening statement, counsel explained that he would not
ask questions about undisputed issues: “For example, there’s not
going to be any dispute that [Ramirez] was sexually assaulted.
The defense is not contending that. This is not an issue of
consent or any other situation like that. This issue is identity.
Who is the person that sexually assaulted [Ramirez] on August
16th, 2012?”
In closing argument, counsel argued, “I’m not disputing
that [Ramirez] was attacked. I’m not calling her a liar. I’m not
trying to discredit her or suggest in any way that she solicited
this to happen; that she had any part in this. But the clear issue
in this case is identity.” Counsel returned to that theme: “I didn’t
ask her about the details. I didn’t ask the nurse about the
details. I’m not disputing the details. I’m not disputing that she
was hurt.” Again: “nobody here, including myself, is disputing
that she was attacked in an awful and brutal way.”
In short, because Mobasser’s testimony tended to
corroborate that the assault occurred where and when Ramirez
claimed—but did not corroborate the evidence defendant was the
attacker—there is no reasonable probability that the result in
this case would have been different if the testimony had been
excluded.
2.2. Failure to request CALCRIM No. 333
As discussed, Mobasser related what she saw on a video
that was not played for the jury. Defendant does not object that
28
the opinion itself was improper; instead, he argues the evidence
should have been excluded as irrelevant. Nevertheless, he
asserts that counsel’s failure to ask the court to instruct the jury
about the proper method for evaluating that evidence was
reversible error.17
“While experts can testify to opinions based on matters not
admitted into evidence (Evid. Code, § 801), … an opinion by a
nonexpert ‘is limited to such an opinion as is permitted by law,
including but not limited to an opinion that is: (a) Rationally
based on the perception of the witness … .’ (Evid. Code, § 800.)”
(People v. Golde (2008) 163 Cal.App.4th 101, 120.) For such an
opinion to be admissible, evidence must be adduced as to the
basis for the opinion, i.e., the perception that led the witness to
that opinion. (Evid. Code, § 802; Stuart v. Dotts (1949) 89
Cal.App.2d 683, 686–687 [“Opinion evidence may be given from
personal observation on subjects such as whether a party is
intoxicated, but not on facts related by other parties.”].)
CALCRIM No. 333 addresses this type of evidence. While
the jury was not specifically instructed on lay opinion testimony,
it was properly instructed on how to evaluate witness testimony
in general—and CALCRIM No. 333 essentially instructs the jury
to apply those rules by giving lay opinions whatever weight it
thinks the opinions are worth.
As discussed, identity was the only issue in this case—and
Mobasser’s testimony did not relate to identity. The evidence
17 Defendant appears to invite us to disregard the California
Supreme Court’s conclusion that trial courts do not have a sua sponte
duty to instruct the jury about the uses of lay opinion testimony.
(People v. Boyce (2014) 59 Cal.4th 672, 715.) We decline his invitation.
(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
29
actually relating to identity was overwhelming, however. The
fingerprints discovered at the scene and the DNA extracted from
semen found in Ramirez’s vagina both matched defendant. While
defendant attacked the scientific evidence, the experts thoroughly
described their scientific process, the methods they used to
ensure accurate results, and their lack of bias in conducting
testing. Nor did defendant present any experts who reached
contrary conclusions. Instead, the fingerprint and DNA results
corroborated each other. We therefore conclude there is no
reasonable probability that the result in this case would have
been different if the jury had been instructed with CALCRIM
No. 333.
2.3. Failure to object to the term rape kit
Defendant argues that his trial lawyer provided
constitutionally inadequate assistance by failing to object to the
use of the term rape kit because rape is an inflammatory word.18
The term rape kit was used about a dozen times at trial.19
Witnesses and counsel also described the kit as a “sexual assault
18 Defendant implicitly acknowledges that his failure to object
below forfeited this argument. (See, e.g., People v. Valenti (2016) 243
Cal.App.4th 1140, 1172 [“If defendant wished to be called by some
other term, the proper procedure was to bring a motion in limine. (See,
e.g., Giarrusso, The General and Captain Justice (2014) 61 La. B.J.
392 [suggesting ‘Citizen Accused’ and ‘that innocent man’ as
alternatives to ‘defendant’].)”].)
19 The prosecutor mentioned a “rape kit” seven times in his
opening statement on April 23, 2015. The term was also used four
times during trial testimony that day. The term was used twice on
April 24, 2015, and was not used at all April 27, 2015. We also note
that appellate counsel uses the term “rape kit” in the statement of
facts.
30
kit,” “evidence kit,” and “kit.” The alternative terms were used
almost twice as often as “rape kit.”
Defendant argues persuasively that repeated use of the
term rape kit can act to undermine the presumption of innocence
in a generic criminal case, that the term is used out of habit, and
that attorneys and witnesses should call the kit something else.
He does not explain, however, why the use of rape kit was
prejudicial in this case. As the defense bears the burden of
establishing ineffective assistance of counsel, we find no Sixth
Amendment violation.
3. Failure to instruct on abiding by the interpreter’s
translation
Defendant contends that the trial court’s failure to instruct
the jurors that they must abide by the Spanish interpreter’s
translation rendered his trial fundamentally unfair and violated
his federal due process rights. (See CALCRIM No. 121.) The
court’s sua sponte obligation to give such an instruction is an
apparent issue of first impression in California. While giving the
instruction is certainly the better practice whenever witness
testimony is translated for the jury—and may well be required in
cases like this one, where nuance and detail are critical—we need
not resolve that question because any error was harmless beyond
a reasonable doubt.
“We assess federal constitutional errors under Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman). Under Chapman,
we must reverse unless the People ‘prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’ (Ibid.)” (Valenti, supra, 243 Cal.App.4th at
pp. 1165–1166.) The People have met that burden.
31
There is simply no evidence in the voir dire transcripts—or
any other part of the record in this case—that any juror
understood Spanish. Nor does defendant indicate what
testimony he believes was translated incorrectly. (See People v.
Boyce, supra, 59 Cal.4th at p. 715 [any error in failing to instruct
jury sua sponte not to converse with others or conduct
independent investigation was harmless because there was “no
evidence that any juror discussed the case with others or
conducted any investigation,” leaving no reasonable possibility
the instruction’s omission affected the verdict].) “In the absence
of some specific indication of prejudice arising from the record,
defendant ‘does no more than speculate’ [citation] that the
absence of the instructions prejudiced him.” (People v. Lewis
(2008) 43 Cal.4th 415, 535, disapproved in part on other grounds
by People v. Black (2014) 58 Cal.4th 912, 919–920.)
4. The court properly imposed consecutive sentences for
counts 4 and 5.
Defendant contends the court was not required to impose
consecutive sentences for his rape (§ 261, subd. (a)(2); count 4)
and sodomy (§ 286, subd. (c)(2)(a); count 5) convictions, and that
it lacked the discretion to do so. The People argue consecutive
sentencing was proper because the crimes occurred on separate
occasions (§ 667.61, subds. (a), (d)(2), (i); § 667.6, subd. (d)), and
in any event, the court had the discretion to impose consecutive
terms and affirmatively stated that if the decision were left to its
discretion, it would impose consecutive terms. We conclude the
court properly exercised its discretion.
32
4.1. One Strike Law
Under certain circumstances, the One Strike Law
(§ 667.61) requires courts to impose longer sentences on
defendants who commit violent sex crimes like rape (§ 261;
count 4) and forcible sodomy (§ 286, subd. (c)(2)(A); count 5).
(§ 667.61, subd. (c).) As relevant to this case, when a defendant is
convicted of a sex offense listed in subdivision (c) and either one
aggravating factor listed in subdivision (d) or two aggravating
factors listed in subdivision (e), subdivision (a) requires the court
to sentence him to an indeterminate term of 25 years to life.
(§ 667.61, subds. (a), (c), (d).) Because the jury in this case found
the kidnapping (§ 667.61, subd. (e)(1)), deadly-weapon (§ 667.61,
subd. (e)(3)), and aggravated-kidnapping (§ 667.61, subd. (d)(2))
allegations true for counts 4 and 5, the court was required to
sentence defendant to an indeterminate one-strike term for each
count. (People v. Rodriguez (2012) 207 Cal.App.4th 204, 213
(Rodriguez).)
Once it determines the law applies, the trial court must
decide whether to impose concurrent or consecutive one-strike
sentences. While that choice is sometimes discretionary, the
court must impose consecutive sentences “if the crimes involve
separate victims or involve the same victim on separate occasions
as defined in subdivision (d) of Section 667.6.” (§ 667.61,
subd. (i).) “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 his or her actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between
crimes, nor whether or not the defendant lost or abandoned his or
33
her opportunity to attack, shall be, in and of itself, determinative
of the issue of whether the crimes in question occurred on
separate occasions.” (§ 667.6, subd. (d), emphasis added.)
The parties agree on this much—but they disagree on
whether the offenses here were committed on separate
occasions—and therefore, whether the court was required to
sentence defendant to consecutive indeterminate terms. We need
not reach that issue, however, because even were we to agree
with defendant that the offenses were committed on the same
occasion, and therefore, were not subject to mandatory
consecutive sentencing under section 667.61, subdivision (i)
(hereafter section 667.61(i)), defendant has not demonstrated
that the court lacked the discretion to sentence him consecutively
under section 667.6, subdivision (c) (hereafter section 667.6(c)).
4.2. The court had the discretion to impose
consecutive sentences.
Under the One Strike Law, when a defendant commits
multiple crimes against the same victim on the same occasion,
the sentencing court has a choice. It can sentence the defendant
to concurrent one-strike terms under section 1170.1. (§ 667.6(c).)
Or, it may impose “a full, separate, and consecutive” one-strike
term for each offense enumerated in subdivision (e)—including
forcible rape (§ 261, subd. (a)(2); count 4) and sodomy by force
(§ 286, subd. (c)(2)(a); count 5). (§ 667.6, subds. (c), (e)(1), (e)(4);
People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; see Valenti,
supra, 243 Cal.App.4th at pp. 1178–1179.)
As defendant concedes, the court below imposed
consecutive sentences as an exercise of its discretion. The court
explained, “there is no doubt in my mind the defendant deserves
consecutive sentencing on this case. … I believe that if it was
34
truly in my discretion it would be—I would sentence him
consecutively.”
Defendant insists, however, that if the court was not
required to sentence him to consecutive terms under section
667.61, any consecutive “sentence would be unauthorized,
warranting reversal.” While his brief is not entirely clear on this
point, defendant appears to argue that the court had no
discretion to impose consecutive sentences, because although
section 667.6, subdivision (d) applies to one-strike sentences,
subdivision (c) does not.20
Defendant cites no authority to support this view, however.
To be sure, defendant correctly notes that the cases cited by the
prosecutor below do not hold that subdivision (c) applies to the
One Strike Law—but those cases also do not stand for the
opposite proposition that subdivision (c) does not apply. Because
he did not file a reply brief in this case, defendant also fails to
respond to the People’s argument on that point or to the cases
cited in the opposition brief.
We therefore conclude defendant was properly sentenced to
consecutive one-strike terms for counts 4 and 5.21
20 For example, defendant argues that “the record supports a
conclusion the trial court imposed the sentences consecutively based
not on the mandatory provisions of section 667.61, subdivision (i), but
instead on the discretionary language of section 667.6, subdivision
(c). … As proceeding in that manner was not authorized by section
667.61, the sentence would be unauthorized, warranting reversal.” He
does not explain why section 667.6, subdivision (c) should not apply to
one-strike sentences, however.
21 We note that the court based the one-strike sentences on
triggering circumstances from both subdivision (d) and subdivision (e).
Basing the sentence on subdivision (e) precluded the court from also
imposing the section 12022.3 enhancements, however, because they
35
5. The court’s failure to state reasons for imposing the
high term for the weapon enhancements was harmless.
Defendant argues we must remand for resentencing
because the court failed to state its reasons for selecting the high
term for the weapon enhancements to counts 4 and 5, and he
lacked a meaningful opportunity to object. Though we agree the
court erred by failing to provide a reason for imposing the upper
terms, in view of defendant’s increasingly serious criminal
history, prior prison sentences, and status as a probationer when
he raped Ramirez, we find it is not reasonably probable that the
result would have been different had the court been reminded to
state its reasons. Accordingly, we conclude there is no basis for
reversal.
were based on the same conduct as the triggering circumstance found
true under subdivision (e)(3). (§ 667.61, subd. (f).) As the version of
defendant’s sentence imposed under subdivision (e) is unauthorized,
but the alternative version imposed under subdivision (d) is not, and
because there is no evidence from which we can infer the court may
have exercised its discretion to dismiss the enhancements if given the
chance, we modify the judgment to strike the portion imposing
sentence under subdivision (e). (People v. Valenti, supra, 243
Cal.App.4th at p. 1173 [“We may correct an unauthorized sentence on
appeal despite failure to object below”]; People v. Dotson (1997) 16
Cal.4th 547, 554, fn. 6 [unauthorized sentence “subject to judicial
correction whenever the error comes to the attention of the reviewing
court.”]; see People v. Rivas (2004) 119 Cal.App.4th 565, review den.
Sept. 22, 2004 [court has discretion to strike enhancements based on
conduct underlying extra one-strike circumstances, but not the
circumstances themselves].) While defendant’s actual term of
imprisonment will not change, we modify the judgment to forestall
later confusion on this point.
36
5.1. Relevant law
Although California’s sentencing scheme for noncapital
felonies “is vast, intricate, and frequently amended, its basic
parameters have become familiar to courts and counsel over the
years.
“In general, a defendant may be eligible for probation
instead of imprisonment depending upon the nature of the
offense. [Citations.] Where imprisonment is imposed, the court
typically selects a lower, middle, or upper term as the base term
for the underlying offense. [Citations.] An enhancement may be
authorized or required depending on the circumstances of the
crime [citation] and/or the history of the defendant [citation]. In
cases involving multiple convictions, terms of imprisonment
either can or must be made consecutive; in some cases,
alternative formulas for consecutive sentences may be
available. …
“Although many … provisions are mandatory, the trial
court often has broad discretion to tailor the sentence to the
particular case. The choices available commonly include the
decision to order probation rather than imprisonment, to impose
the lower or upper term instead of the middle term of
imprisonment, to impose consecutive rather than concurrent
sentences under certain discretionary provisions, and to strike or
stay certain enhancements or waive a restitution fine. [Citation.]
As directed by the Legislature, the Judicial Council has
promulgated rules to guide these choices. [Citations.]
“The statutes and sentencing rules generally require the
court to state ‘reasons’ for its discretionary choices on the record
at the time of sentencing. (§§ 1170, subds. (b) & (c), 1170.1,
subd. (h), 1202.4, subd. (a).) Such reasons must be supported by
37
a preponderance of the evidence in the record and must
‘reasonably relat[e]’ to the particular sentencing determination.
[Citations.] No particular wording is required, but courts
typically rely on applicable sentencing factors set forth in the
statutory scheme and the rules. (See, e.g., §§ 1170.7–1170.85
[circumstances in aggravation]; rules 414 [criteria affecting
probation], 421 [circumstances in aggravation], 423
[circumstances in mitigation], 425 [criteria affecting concurrent
or consecutive sentences].)” (Scott, supra, 9 Cal.4th at pp. 349–
350, alterations in Scott.)
“Against this backdrop, the purpose for requiring the court
to orally announce its reasons at sentencing is clear. The
requirement encourages the careful exercise of discretion and
decreases the risk of error. In the event ambiguities, errors, or
omissions appear in the court’s reasoning, the parties can seek an
immediate clarification or change. The statement of reasons also
supplies the reviewing court with information needed to assess
the merits of any sentencing claim and the prejudicial effect of
any error. [Citations.]” (Scott, supra, 9 Cal.4th at p. 351.) For
many of the same reasons, where the court fails to explain the
reasons behind its decisions, a defendant’s “lack of a timely and
meaningful objection forfeits or waives the claim.” (Ibid.)
There is a caveat to the forfeiture rule, however. The
defendant must have a meaningful opportunity to object. (Scott,
supra, 9 Cal.4th at p. 356.) “This opportunity can occur,” Scott
observed, “only if, during the course of the sentencing hearing
itself and before objections are made, the parties are clearly
apprised of the sentence the court intends to impose and the
reasons that support any discretionary choices.” (Ibid.)
38
As the Court later explained in People v. Gonzalez, the
“Scott rule applies when the trial court ‘clearly apprise[s]’ the
parties ‘of the sentence the court intends to impose and the
reasons that support any discretionary choices’ (Scott, supra, 9
Cal.4th at p. 356), and gives the parties a chance to seek
‘clarification or change’ (id. at p. 351) by objecting to errors in the
sentence. The parties are given an adequate opportunity to seek
such clarifications or changes if, at any time during the
sentencing hearing, the trial court describes the sentence it
intends to impose and the reasons for the sentence, and the court
thereafter considers the objections of the parties before the actual
sentencing. The court need not expressly describe its proposed
sentence as ‘tentative’ so long as it demonstrates a willingness to
consider such objections. If the court, after listening to the
parties’ objections, concludes that its proposed sentence is legally
sound, it may simply state that it is imposing the sentence it has
just described, without reiterating the particulars of that
sentence. By contrast, if the trial court finds that one of the
parties has raised a meritorious objection to the proposed
sentence, it should alter its sentence accordingly.” (People v.
Gonzalez (2003) 31 Cal.4th 745, 752, emphasis added.)
5.2. Defendant lacked a meaningful opportunity to
object.
Section 12022.3, subdivision (a) provides for an
enhancement of three, four, or 10 years for use of a deadly
weapon in the commission of a sex offense. The choice of the
appropriate term from three statutorily specified possibilities
rests within the court’s discretion. (§ 1170, subd. (b).) The court
in this case imposed the upper term of 10 years for each
enhancement, and was required to state the reasons for that
39
decision. (§ 1170, subd. (c), [court “shall state the reasons for its
sentence choice on the record at the time of sentencing.”]; Cal.
Rules of Court, rules 4.406(b)(4), 4.420(e).) It failed to do so.
The People concede the court did not provide an indicated
sentence in this case but argue defendant has forfeited this claim.
They contend defendant had a meaningful opportunity despite
the court’s failure to provide an indicated sentence, because in
“imposing consecutive terms on counts 4 and 5, the court noted
the facts of Jones, then imposed the upper term on the weapon
enhancements for both counts.” Then, after imposing sentence,
defendant’s “trial counsel engaged the court in a discussion about
the facts of Jones.” The People have not cited any authority in
support of the proposition that a post-sentence discussion about
the facts of an unrelated case may indicate that defendant had a
meaningful opportunity to object, and we find no such
opportunity here.22
5.3. The error was harmless.
“Where sentencing error involves the failure to state
reasons for making a particular sentencing choice, including the
imposition of consecutive terms,” remand is not automatic.
(People v. Coelho (2001) 89 Cal.App.4th 861, 889 [record revealed
numerous aggravating circumstances and court did not explicitly
find any mitigating circumstances].) Reversal is required only if
“ ‘it is reasonably probable that a result more favorable to the
22 The People’s reliance on People v. Gonzalez is misplaced. In that
case, the Court found there was a reasonable opportunity to object
where the defendant actually objected to the sentence after it was
imposed. (People v. Gonzalez, supra, 31 Cal.4th at p. 755.) “The court
did not tell defendants their objection was untimely or impermissible;
instead, it considered and rejected the objection.” (Ibid.)
40
[defendant] would have been reached in the absence of the
error.’ ” (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684,
quoting Watson, supra, 46 Cal.2d at p. 836.) Thus, “reviewing
courts have consistently declined to remand cases where doing so
would be an idle act that exalts form over substance because it is
not reasonably probable the court would impose a different
sentence.” (People v. Coelho, supra, at p. 889; accord, People v.
DeHoyos (2013) 57 Cal.4th 79, 155.)
Here, remand for a statement of reasons “would be no more
than an idle act.” (People v. Williams (1996) 46 Cal.App.4th
1767, 1782–1783.) As defendant concedes, the court’s statements
demonstrate that it read the probation report and sentencing
briefs and that it understood it had the discretion to impose any
of the three terms available for the enhancements. (Cf. People v.
Deloza (1998) 18 Cal.4th 585, 600 [court misunderstood scope of
discretion].) The aggravating factors provided in the
prosecution’s sentencing brief—particularly the fact that
defendant was on probation when he committed the crimes—
support the sentence ultimately imposed. Defendant offers no
reason the court would change its mind upon remand. Indeed,
though the court struck the one-year prison priors (§ 667.5, subd.
(b)) as an exercise of discretion, it emphasized that it was
“choosing not to impose those 1-year priors based on the fact that
I’m running counts 4 and 5 consecutive. If I was running them
concurrently I would impose that term.”
Under these circumstances, it is not reasonably probable
that defendant would receive a more favorable sentence were we
to remand the matter. (See People v. Bravot (1986) 183
Cal.App.3d 93, 98.) Consequently, we decline to do so.
41
DISPOSITION
The judgment is modified to vacate the portion of the
sentence imposed under Penal Code section 667.61, subdivisions
(a) and (e) and to clarify that sentence was imposed under
subdivisions (a) and (d) only. There is no change to the term of
imprisonment. As modified, the judgment is affirmed.
Upon issuance of the remittitur, the court is directed to
correct the abstract of judgment (page 1, item 8) to reflect that
defendant was sentenced under Penal Code section 667.61 and to
send a corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
CERTIFIED FOR PARTIAL PUBLICATION
LAVIN, J.
WE CONCUR:
ALDRICH, Acting P. J.
GOSWAMI, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
42