People v. Garcia CA4/1

Filed 6/23/22 P. v. Garcia CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079152
Plaintiff and Respondent,
v. (Super. Ct. No. FWV20000697)
FRANCISCO JAVIER GARCIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Cara D. Hutson, Judge. Affirmed in part, vacated in part, and
remanded with directions.
Jennifer A. Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and A. Natasha
Cortina, Assistant Attorneys General, Arlene A. Sevidal, Andrew S. Mestman
and Susan Elizabeth Miller, Deputy Attorneys General for Plaintiff and
Respondent.
A jury convicted Francisco Javier Garcia of nineteen counts of sex
offenses involving his stepdaughter: lewd acts upon a child under age 14
(Pen. Code,1 § 288, subd. (a); counts 1-11), lewd acts upon a child aged 14 or
15 (§ 288, subd. (c)(1); counts 12-15), oral copulation of a person under age 18
(§ 287, subd. (b)(1); count 16), sexual penetration of a person under age 18
(§ 288a, subd. (b)(1); count 17), unlawful sexual intercourse (§ 261.5, subd. (c);
count 18), and forcible rape (§ 261, subd. (a)(2); count 19). The court
sentenced Garcia to a total term of 36 years 8 months in state prison.
On appeal, Garcia contends (1) the evidence was insufficient to show he
committed the crime of forcible rape as charged in count 19; (2) the court’s
imposition of a full consecutive term on count 19 is unauthorized and (3) the
sentences imposed on counts 3 through 6, 8 through 11, 14 and 15 must be
stayed under section 654. He asks us to reverse the forcible rape conviction
and remand for resentencing. The People concede that the court improperly
sentenced Garcia to a full consecutive term on count 19 under section 667.6,
subdivision (d), but argue it is appropriate to remand the matter for the court
to exercise its discretion to sentence Garcia under subdivision (c) of section
667.6. We accept that concession and vacate Garcia’s sentence with
directions that on remand the court must exercise its discretion whether to
sentence Garcia under section 667.6, subdivision (c) to a full consecutive term
on count 19. Otherwise, we reject Garcia’s sufficiency of the evidence
argument and arguments as to section 654, at least as it read as of the time
of his sentencing. At resentencing the parties and the court will have the
opportunity to address application of amended section 654 to Garcia’s
sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution’s Evidence
1 Undesignated statutory references are to the Penal Code.
2
Jane Doe, born in 1997, is Garcia’s stepdaughter. Garcia married Doe’s
mother when Doe was about two years old. Doe grew up considering Garcia
to be her father; she was not told until she was 11 years old that he was not
her biological father. She described their early relationship as only
sometimes typical and normal, as she described Garcia as “a very strict
person.” Doe’s family lived in small apartments and moved a lot. At times,
Garcia, Doe’s mother and Doe’s siblings slept in the same room; the children
sometimes took turns sleeping in the same bed as their parents.
When Doe was seven, Garcia began touching her inappropriately. The
first incident (count 1) occurred while Doe slept with her parents in their bed,
and Garcia touched her vagina both over and under her bed clothes while he
was having intercourse with Doe’s mother. Doe did not say anything because
she was confused about what was going on.
Garcia’s inappropriate touching and sexual abuse continued until Doe
was 18 and at times occurred a few times a week on and off. At trial, Doe
was able to describe several specific incidents. One incident (counts 2
through 6) happened when she was between 12 and 13 years old and Garcia
asked her to stay home from school. He removed her clothing, touched her all
over her body and had intercourse with her. This was not the first time
Garcia had intercourse with Doe; she just could not recall specifically the
other earlier incidents. Doe explained that similar acts had occurred between
the time she was seven years old and age 12, but she could not remember
how old she was or where she was. Another incident (counts 7 through 11)
3
occurred when she was 13 and Garcia purchased shoe glue that he told her to
“huff.” He then touched Doe inappropriately and had intercourse with her.2
Doe started to realize things were not appropriate when she was 12 or
13, but she did not know how to say no or get out of it. She was too scared to
say anything to her siblings, her mother, friends or teachers. Garcia made it
seem like it was okay, or he would tell Doe that nobody would believe her or
understand it, not even her mother. According to Doe, if she ever said no or
things did not happen the way Garcia wanted, he would hit her with a belt,
causing her to become scared of him.
When Doe was 14, Garcia forced her to put her mouth on his penis,
causing her to gag. Another incident (counts 13 through 15) occurred when
Doe was 15 years old a few days after they had moved to a new house and
Garcia slept in her bedroom. On that occasion, he touched Doe
inappropriately and made her touch him; he then had intercourse with
her.3 After Doe turned 17, Garcia’s sexual abuse happened a little less
frequently, but he continued with the same touching and intercourse as
2 According to the prosecutor in closing arguments, the incidents Doe
described when she was 12 and 13 years old were encompassed within counts
2 through 11, which pertained to when Doe was that age. She said: “[Doe]
testified that there was no gap between the [seventh] birthday to the 12th
birthday. There were a lot of things that happened but she just did not recall
specific incidents.” The prosecutor pointed to Doe’s description of the day she
stayed home from school, and the time Garcia made her use the shoe glue.
3 The prosecutor explained that counts 13 and 15 occurred when Doe was
14 and 15 years old; though she did not specify it precisely, her argument
suggests that count 15 occurred when Doe was 15 years old and Garcia slept
in Doe’s room in the new house, and count 13 occurred when Doe was 14 and
Garcia would kiss her on the mouth, touch her breasts and buttocks, and
have intercourse with her.
4
before (count 18). Garcia’s acts included him orally copulating Doe (count 16)
or digitally penetrating her (count 17), or forcing Doe to orally copulate him.
Doe described the oral copulation as a “continuous thing.”
Doe recalled another incident, charged as count 19, when she was
eighteen and visiting her aunt’s house with her sister, her sister’s boyfriend,
and a female cousin. No adults were home and they were all spending time
in a bedroom. When Doe’s aunt returned home with Garcia, Garcia became
angry that Doe and the others were unsupervised. Doe left to go home, where
Garcia was waiting for her in her bedroom. He told her it was not okay that
they were all in a bedroom alone, and that he was going to make Doe’s sister
break up with her boyfriend. Doe believed that was unfair; she responded
that she did not want him to do that. Garcia told Doe that she “knew what
she had to do” in order for him not to make them break up. Doe understood
that to mean she would have to have sex with him. She got upset and told
him that was not fair either; but Garcia was upset and told Doe that he
would tell her sister she had to break up with her boyfriend and make it out
to be Doe’s fault. Doe started to cry, but eventually gave in. The prosecutor
asked Doe why she did so in the following colloquy:
“[Prosecutor:] Why did you give in?
“[Doe:] Because I knew that there was no changing what he wanted.
He was going to get it regardless.
“[Prosecutor:] Regardless of whether you agreed or not?
“[Doe:] Yes.
“[Prosecutor:] Did you feel like you had a choice at that point?
“[Doe:] No.
“[Prosecutor:] So did you and the defendant, did the defendant end up
having sexual intercourse with you that day?
5
“[Doe:] Yes.”
Later that evening, after Garcia checked that the rest of the family was
asleep, he came back to Doe’s room and locked the door, then began to kiss
Doe on the mouth while she laid in bed. Doe had gone to bed fully clothed,
still in her jeans. When Garcia tried to tug on her shirt so she would take it
off, Doe said she did not want to. Garcia got upset; Doe started crying and
removed her shirt, since she knew he was not going to listen to her no matter
what she said. Doe left her jeans on, trying to convince Garcia to let her be
and telling him she really did not want to. Garcia ignored her and unzipped
her pants, putting his hand down them to touch Doe. Doe pulled her pants
off, then Garcia had intercourse with her while she cried. Garcia got upset at
Doe because she would not stop crying.
After the abuse came to light, a police detective spoke with Doe’s
mother, who told him that Garcia told her he had a relationship with Doe
when she was about 15 or 16 years old. The detective set up a pretext call
between Doe and Garcia, in which Garcia stated he could not change the
past; he knew he had hurt her, it was his fault and he was sorry.
Defense Evidence
Garcia denied Doe’s claim that he touched her inappropriately when
she was seven years old. He denied touching her in a sexual manner when
she was 12 or 13 years old. He denied asking her to stay home from school,
explaining that education was important and he and his wife pushed the
children to go to school. He testified he never had a physical relationship
with Doe or intercourse with her when she was in middle school. According
to Garcia, he saw Doe like a daughter and could not see himself having sex
with her. He denied the glue-sniffing incident. Garcia admitted scolding Doe
and the others when he found them in the bedroom, but denied telling Doe he
6
was going to make her sister break up with her boyfriend if Doe did not have
sex with him, or having sex with Doe on that occasion. He admitted that he
and Doe began a physical relationship after she turned 18; her behavior was
different, he started seeing her differently, and he made the “wrong decision.”
Garcia testified he respected Doe’s decision when she did not want to have
sex. He testified their relationship lasted close to a year, then they mutually
decided to end it. When Garcia admitted wrongdoing to Doe on the phone, he
was referring to his adult relationship with her.
DISCUSSION
I. Sufficiency of Evidence of Forcible Rape on Count 19
Garcia contends that there is insufficient evidence of the offense of
forcible rape as charged in count 19. Specifically, he argues there is no
evidence the intercourse with Doe, an 18-year-old adult at the time, was
committed by means of duress, requiring reversal of his conviction. Garcia
compares this case to People v. Espinoza (2002) 95 Cal.App.4th 1287, in
which the Court of Appeal concluded there was insufficient evidence of duress
in accomplishing a lewd act. (Id. at p. 1321.) Though Garcia acknowledges
that he threatened to break up Doe’s sister’s relationship, he asserts the
threat was made before there was any attempt to have sex with Doe, and the
intercourse was not contemporaneous with that statement. Garcia also
argues his discipline “had nothing to do with . . . Doe’s adult sexual
relationship with [him].” He maintains he “simply did not use any direct or
implied threat of force, violence, danger, hardship, or retribution sufficient to
coerce . . . Doe, a reasonable person of ordinary susceptibilities, to acquiesce
to an act of sex that she otherwise would not have submitted.” Garcia
characterizes Doe as being “free to leave” on that occasion, and states that
“[a]s in Espino[z]a, while it is clear that . . . Doe felt she had to give in to sex,
7
no evidence was introduced that her decision to give in on this occasion was
based on anything Garcia had done to her.”
A. Standard of Review
The review principles are well settled. When we assess the sufficiency
of the evidence to support a conviction, “ ‘[w]e “ ‘ “must review the whole
record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ ” (People v.
Parker (2022) 13 Cal.5th 1, 58.) This requires us to consider whether “ ‘ “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” ’ ” (People v. Holmes, McClain and Newborn
(2022) 12 Cal.5th 719, 780.) “[I]n reviewing the sufficiency of the evidence, a
court ‘err[s] in focusing on evidence that did not exist rather than on the
evidence that did exist.’ [Citation.] The question is not whether the jury
reasonably could have reached a different conclusion. Instead, it is whether
any reasonable trier of fact could have reached the same conclusion as the
jury.” (People v. Thomas (2017) 15 Cal.App.5th 1063, 1073.)
This court presumes in support of the judgment the existence of every
fact the trier of fact could reasonably deduce from the evidence. (People v.
Navarro (2021) 12 Cal.5th 285, 302; People v. Thomas, supra, 15 Cal.App.5th
at p. 1073.) “ ‘ “If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.
[Citation.] A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.” ’ ” (People v. Booker (2011) 51 Cal.4th 141, 172.)
8
B. Legal Principles
Forcible rape is sexual intercourse “accomplished against a person’s
will by means of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person of another.” (§ 261, subd. (a)(2).)
Duress for purposes of this offense means “a direct or implied threat of force,
violence, danger, or retribution sufficient to coerce a reasonable person of
ordinary susceptibilities to perform an act which otherwise would not have
been performed, or acquiesce in an act to which one otherwise would not have
submitted.” (§ 261, subd. (b).) All of the circumstances, including matters
such as the victim’s age and relationship to the defendant, are factors to
consider in appraising the existence of duress. (§ 261, subd. (b); see People v.
Thomas, supra, 15 Cal.App.5th at p. 1072.)
The legal definition of duress is objective in nature and not dependent
on the response exhibited by a particular victim. (See People v. Soto (2011)
51 Cal.4th 229, 246 [analyzing section 288, subdivision (b)(1) as to
aggravated lewd acts on a child under age 14, under which duress was
defined by reference to direct or implied threats “ ‘ “sufficient to coerce a
reasonable person of ordinary susceptibilities to (1) perform an act which
otherwise would not have been performed or, (2) acquiesce in an act to which
one otherwise would not have submitted” ’ ”]; accord, People v. Cochran
(2002) 103 Cal.App.4th 8, 13, disapproved on other grounds in Soto, at p. 248,
fn. 12.) “Because duress is measured by a purely objective standard, a jury
could find that the defendant used threats or intimidation to commit [the
offense] without resolving how the victim subjectively perceived or responded
to this behavior. . . . [T]he focus must be on the defendant’s wrongful act, not
the victim’s response to it.” (Ibid.)
9
Duress usually involves psychological coercion. (See People v. Cochran,
supra, 103 Cal.App.4th at p. 15 [“The very nature of duress is psychological
coercion”]; see also People v. Veale (2008) 160 Cal.App.4th 40, 48 [quoting and
following Cochran].) In Cochran, this court explained that “[a] threat to a
child of adverse consequences, such as suggesting the child will be breaking
up the family or marriage if she reports or fails to acquiesce in the
molestation, may constitute a threat of retribution and may be sufficient to
establish duress, particularly if the child is young and the defendant is her
parent. . . . [S]uch a threat also represents a defendant's attempt to isolate
the victim and increase or maintain her vulnerability to his assaults.”
(Cochran, at p. 15.)
C. Analysis
We do not consider the evidence here to present a close case. Doe
considered Garcia her father. Even though Doe was 18 years old at the time
Garcia committed the rape of count 19, Garcia began his abuse when she was
just seven, and at times used violence by striking her with a belt when she
did not comply with his demands. Garcia was still in a position of authority
over Doe even as an adult, as Doe continued to live with him and her mother
in the family home. On the occasion that Garcia encountered Doe, Doe’s
sister and Doe’s sister’s boyfriend in the bedroom, he used that authority
later that day back in Doe’s bedroom, threatening that he would force Doe’s
sister to break up her relationship and blame it on Doe. Doe understood from
the history of abuse that Garcia wanted her to engage in sex acts; only then
would she avoid that outcome. The jury reasonably concluded this
intimidated and influenced Doe to make her submit to his sex acts.
We are unpersuaded by Garcia’s argument that his threat was separate
in time and not contemporaneous, but rather occurred before his efforts to
10
engage in intercourse with Doe. That his threat was separated from the sex
acts by a few hours does not matter, particularly where the evidence shows at
the time of Garcia’s threat Doe immediately understood what was expected of
her to avoid the consequences of that threat.
Espinoza likewise is of no assistance to Garcia. In that case, the
defendant was convicted of molesting his 12-year-old daughter, who had only
lived with him briefly before he began molesting her. (People v. Espinoza,
supra, 95 Cal.App.4th at pp. 1292-1294.) Observing that the defendant did
not “grab, restrain, or corner [the victim]” during the incident and that the
victim “did not cry, and she offered no resistance” (id. at p. 1320), Espinoza
held there was insufficient evidence of duress. It relied in part on statements
from People v. Hecker (1990) 219 Cal.App.3d 1238, disapproved on other
grounds in People v. Soto (supra, 51 Cal.4th at p. 248, fn. 12) that
“ ‘ “[p]sychological coercion” without more does not establish duress’ ” and
“ ‘[a]t a minimum there must be an implied threat of “force, violence, danger,
hardship or retribution.” ’ ” (Espinoza, at p. 1321.) The Espinoza court
reasoned: “What is missing here is the ‘ “direct or implied threat of force,
violence, danger, hardship or retribution sufficient to coerce a reasonable
person of ordinary susceptibilities to (1) perform an act which otherwise
would not have been performed or, (2) acquiesce in an act to which one
otherwise would not have submitted.” ’ [Citation.] Duress cannot be
established unless there is evidence that ‘the victim[’s] participation was
impelled, at least partly, by an implied threat . . . .’ [Citation.] No evidence
was adduced that defendant’s lewd act and attempt at intercourse were
accompanied by any ‘direct or implied threat’ of any kind. While it was clear
that [the victim] was afraid of defendant, no evidence was introduced to show
that this fear was based on anything defendant had done other than to
11
continue to molest her. It would be circular reasoning to find that her fear of
molestation established that the molestation was accomplished by duress
based on an implied threat of molestation.” (Id. at p. 1321.)
In Cochran, this court rejected the above-mentioned statements in
People v. Hecker as “overly broad.” (People v. Cochran, supra, 103
Cal.App.4th at p. 15, citing People v. Hecker, supra, 219 Cal.App.2d at p.
1250.) We continue to reject the language on which People v. Espinoza,
supra, 95 Cal.App.4th 1287 based its holding, and decline to follow Espinoza
on that basis. Further, unlike Espinoza, Doe had been living with Garcia,
her stepfather, for years, and his abuse began when she was very young. As
we have concluded for the reasons stated above, a rational fact finder could
conclude beyond a reasonable doubt that Doe acted under duress when
Garcia came into her bedroom and engaged in the acts charged in count 19.
II. Sentencing Issues
In sentencing Garcia, the trial court deemed count 1 the principal term,
imposing a 6-year midterm. It imposed consecutive terms of two years (one-
third the midterm) for each of counts 2 through 11, 8 months (one-third the
midterm) for each of counts 12 through 18, and a full consecutive six-year
term on count 19. The court followed the probation officer’s recommendation
12
and sentenced Garcia on count 19 under section 667.6, subdivision (d).4 Both
defense counsel and the prosecution stated their belief that the court would
correctly impose a full consecutive term on count 19.
A. Claim of Unauthorized Sentence on Count 19
Garcia contends the court’s imposition of a full consecutive term on
count 19 under section 667.6, subdivision (d) is not legally authorized. The
People concede that the court should remand the case for resentencing of
count 19. They point out that section 667.6, subdivision (d), which provides
that a full separate and consecutive term must be imposed for designated
violent sex offenses “if the crimes involve separate victims or involve the
4 Section 667.6, subdivision (d), provides: “A full, separate, and
consecutive term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve the same
victim on separate occasions. . . . [¶] . . . The term shall be served
consecutively to any other term of imprisonment and shall commence from
the time the person otherwise would have been released from imprisonment.
The term shall not be included in any determination pursuant to Section
1170.1. Any other term imposed subsequent to that term shall not be merged
therein but shall commence at the time the person otherwise would have
been released from prison.” The offenses listed in subdivision (e) are rape in
violation of paragraph (2), (3), (6), or (7) of subdivision (a) of section 261; rape
in violation of paragraph (1), (4), or (5) of subdivision (a) of former section
262; rape or sexual penetration in concert in violation of section 264.1;
sodomy in violation of paragraph (2) or (3) of subdivision (c), or subdivision
(d) or (k), of section 286; lewd or lascivious act in violation of subdivision (b)
of section 288; continuous sexual abuse of a child in violation of section 288.5;
oral copulation in violation of paragraph (2) or (3) of subdivision (c), or
subdivision (d) or (k), of section 287 or of former section 288a; sexual
penetration, in violation of subdivision (a) or (g) of section 289; assault with
intent to commit a specified sexual offense as a present offense under
subdivision (c) or (d), in violation of section 220; and an offense committed in
another jurisdiction that includes all of the elements of an offense specified in
this subdivision, as a prior conviction under subdivision (a) or (b). (§ 667.6,
subd. (e).)
13
same victim on separate occasions,” applies only when a defendant has been
convicted of two or more of the designated offenses. (See People v. Jones
(1988) 46 Cal.3d 585, 595.) Here, however, Garcia was convicted of only one
of the enumerated sex offenses: forcible rape in violation of section 261,
subdivision (a)(2). The People assert that the trial court should be permitted
on remand to decide whether section 667.6, subdivision (c) applies, and to
exercise its sentencing discretion accordingly.
We accept the People’s concession. Section 667.6 is a more severe
consecutive sentencing alternative to the section 1170.1 formula for multiple
felony convictions. (People v. Jones, supra, 46 Cal.3d at p. 592.) Section
667.6, subdivision (d), which mandates a full, separate and consecutive term,
applies when a defendant stands convicted of more than one enumerated sex
offense. (Jones, at p. 595; People v. Goodliffe (2009) 177 Cal.App.4th 723,
727, fn. 10; People v. Rojas (1988) 205 Cal.App.3d 795, 798-799.) Section
667.6, subdivision (c)5 applies when a defendant has multiple current felony
convictions but, as here, only one is for an enumerated sex offense. (Jones, at
p. 600.) In such circumstances, subdivision (c) of section 667.6 “vests the
sentencing court with discretionary authority to impose a full, consecutive
term for [that] conviction . . . .” (Jones, at p. 600.) That is, the court “may
5 Subdivision (c) of section 667.6 provides: “In lieu of the term provided
in Section 1170.1, a full, separate, and consecutive term may be imposed for
each violation of an offense specified in subdivision (e) if the crimes involve
the same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least one offense
specified in subdivision (e). If the term is imposed consecutively pursuant to
this subdivision, it shall be served consecutively to any other term of
imprisonment, and shall commence from the time the person otherwise would
have been released from imprisonment. The term shall not be included in
any determination pursuant to Section 1170.1. Any other term imposed
subsequent to that term shall not be merged therein but shall commence at
the time the person otherwise would have been released from prison.”
14
impose a full, consecutive sentence under subdivision (c) for each such
conviction or, instead, it may apply the standard consecutive sentencing
formula in section 1170.1.” (Jones, at p. 593.) We thus reverse that portion
of the judgment imposing a full, separate and consecutive term for count 19,
and remand the matter to the trial court with directions to exercise its
discretion under section 667.6, subdivision (c) whether to sentence Garcia to a
full consecutive term on count 19. We express no opinion on how the court
should exercise its discretion.
B. Application of Section 654
Though we hold the matter must be remanded for resentencing to allow
the court to exercise its discretion under section 667.6, subdivision (c), we
disagree with Garcia’s contention that certain counts must be stayed under
section 654, at least as that statute read at the time of his sentencing.
During the sentencing hearing, Garcia’s counsel asked the court to find
section 654 applicable to counts 2 through 6, 7 through 11, and 13 through
15. He explained that counts 2 through 6 encompassed the acts that occurred
when Garcia asked Doe to stay home from school and remain at home with
him, counts 7 through 11 encompassed the acts that occurred when Garcia
asked Doe to stay home from school and “huff” glue together, and counts 13
through 15 encompassed the acts that occurred after the family moved to a
new home and Garcia slept with Doe in her bedroom. The People argued that
section 654 did not apply to any of the counts; that each touching of a
different body part or each breast was considered a separate count, and there
was ample evidence Garcia committed each of the charges even if it was one
“transaction.” They asked the court to sentence Garcia consecutively on each
of the counts to one-third the midterm. The court sentenced Garcia without
mentioning section 654.
15
1. Legal Principles and Standard of Review
At the time of Garcia’s sentencing, section 654, subdivision (a),
provided: “An 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, but in no case shall
the act or omission be punished under more than one provision.”6 “[I]f a
series of acts are committed within a period of time during which reflection
was possible [citation], section 654 does not apply.” (People v. Kelly (2016)
245 Cal.App.4th 1119, 1136; see also People v. Mendoza (2022) 74
Cal.App.5th 843, 853.) “Under section 654, ‘a course of conduct divisible in
time, although directed to one objective, may give rise to multiple violations
and punishment. [Citations.]’ [Citations.] This is particularly so where the
offenses are temporally separated in such a way as to afford the defendant
[the] opportunity to reflect and renew his or her intent before committing the
next one, thereby aggravating the violation of public security or policy
already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935; see
People v. Gaynor (2019) 42 Cal.App.5th 794, 804 [“law is clear” that course of
conduct divisible in time, even if directed to one objective, may permit
6 Effective January 1, 2022 (Stats. 2021, ch. 441, § 1), section 654,
subdivision (a) provides in part: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of
such provisions, but in no case shall the act or omission be punished under
more than one provision.” Under newly amended section 654, a trial court
now has the discretion to punish a defendant under any of the applicable
laws. Garcia did not address application of the new statute in his reply brief,
filed shortly after the amended law took effect. Because the matter will be
remanded for resentencing, the parties and court will have the opportunity
on remand to address Garcia’s sentence under amended section 654. (See
People v. Sek (2022) 74 Cal.App.5th 657, 673.)
16
multiple punishment], quoting People v. Beamon (1973) 8 Cal.3d 625, 639, fn.
11.)
Decisions interpreting section 654 have extended its protection to cases
in which there are several offenses committed during a course of conduct
deemed to be indivisible in time. (People v. Hicks (1993) 6 Cal.4th 784, 789,
791.) When the defendant has committed multiple sex offenses against a
single victim as here, section 654 does not preclude separate punishment
when the offenses occur during a continuous attack with a single objective,
i.e., achieving sexual gratification, so long as “[n]one of the sex offenses was
committed as a means of committing any other, none facilitated commission
of any other, and none was incidental” to any other. (People v. Perez (1979)
23 Cal.3d 545, 553-554 [section 654 did not preclude punishment for rape,
sodomy and two oral copulation counts committed during a continuous
45- to 60-minute attack]; see also Hicks, at pp. 788 & fn. 4, 789 [section 654
“does not prohibit the imposition of multiple punishment for separate sexual
offenses committed during a continuous attack, ‘even where closely connected
in time’ ”; defendant was properly convicted of three sex offenses, two counts
of oral copulation and one for sodomy, which occurred during the same sexual
encounter]; People v. Harrison (1989) 48 Cal.3d 321, 335-338 [section 654 did
not preclude multiple punishment where defendant committed three acts of
forcible sexual penetration against a single victim during a continuous seven-
to 10-minute attack; “no special treatment is to be afforded to a defendant
under section 654 simply because he chose to repeat, rather than diversify or
alternate, his many crimes” and “each of defendant’s ‘repenetrations’ was
clearly volitional, criminal and occasioned by separate acts of force” (italics
omitted)].) This is because a “defendant who attempts to achieve sexual
gratification by committing a number of base criminal acts on his victim is
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substantially more culpable than a defendant who commits only one such
act.” (Perez, at p. 553; see also Harrison, at p. 336 [summarizing Perez].)
“ ‘ “Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses not for
more than one.” [Citation.]’ [Citation.] If the court makes no express
findings on the issue, as happened here, a finding that the crimes were
divisible is implicit in the judgment and must be upheld if supported by
substantial evidence.” (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Thus, to decide if section 654 subjects a defendant to multiple
punishment “requires a two-step inquiry, because the statutory reference to
an ‘act or omission’ may include not only a discrete physical act but also a
course of conduct encompassing several acts pursued with a single objective.
[Citations.] We first consider if the different crimes were completed by a
‘single physical act.’ [Citation.] If so, the defendant may not be punished
more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that
course of conduct reflects a single ‘intent and objective’ or multiple intents
and objectives. [Citations.] At step one, courts examine the facts of the case
to determine whether multiple convictions are based upon a single physical
act. [Citation.] When those facts are undisputed . . . the application of
section 654 raises a question of law we review de novo.” (People v. Corpening
(2016) 2 Cal.5th 307, 311-312.)
The trial court is “ ‘vested with broad latitude in making its
determination’ ”; we review its decision “ ‘in the light most favorable to the
respondent and presume the existence of every fact the trial court could
18
reasonably deduce from the evidence.’ ” (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1378.)
2. Analysis
Garcia contends no substantial evidence supports the court’s implied
finding that section 654 was inapplicable and thus did not preclude separate
punishment for his convictions in counts 2 through 15. He argues: “On each
of the three separate dates giving rise to [those counts], Garcia had but a
single objective—to engage in sexual intercourse with . . . Doe. His touching
and kissing of . . . Doe immediately prior to placing his penis in her vagina
were simply acts to facilitate the intercourse. The acts were, thus, incidental
to [his] ultimate goal.” Garcia maintains that as a result he can only be
sentenced once for each incident.
Garcia does not challenge the evidence that before he engaged in
intercourse with Doe on the occasions when Doe was 12, 13 and 15 years old,
he fondled and kissed different parts of her body, including her mouth, neck,
breasts, buttocks, thighs and legs. Specifically, when Doe was 12 and Garcia
kept her home from school (counts 2 through 6), before engaging in
intercourse he hugged Doe; caressed her back and body; fondled her breasts,
buttocks, and thighs; and kissed her mouth, neck and breasts. During the
glue-huffing incident (counts 7 through 11), Garcia kissed Doe’s face, mouth
and neck, as well as her breasts and legs. During the incident when Doe was
15 (counts 13 through 15), he kissed her on the mouth and fondled her,
including her breasts, buttocks, and thighs under and over her clothes. On
this last occasion, Garcia and Doe moved to the floor where Garcia resumed
the intercourse. He also asked Doe to move on her hands and knees so he
could again resume the intercourse facing her back.
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The latter incident was plainly separated by breaks in and resumption
of activity when Garcia and Doe left the bed to the floor and then again when
they changed positions, reflecting a course of conduct divisible in time. This
evidence gives rise to multiple punishment because Garcia was afforded the
opportunity to reflect and renew his intent. (People v. Kelly, supra, 245
Cal.App.4th at p. 1136; People v. Gaio, supra, 81 Cal.App.4th at p. 935; see
also People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11.) The fact he resumed
the same act, intercourse, is of no moment. The “nature and sequence of the
sexual ‘penetrations’ or offenses defendant commits is irrelevant for section
654 purposes. Whether defendant ends a break in the activity by renewing
the same sex act (as here) or by switching to a new one [citation], the result
under section 654 is the same. [¶] . . . section 654 does not preclude
punishment for each of the sex offenses committed by defendant.” (People v.
Harrison, supra, 48 Cal.3d at p. 338.)
As for Garcia’s claim that his fondling and kissing facilitated the
intercourse, we disagree that the evidence permits such a conclusion. None
of those acts were “part of the [intercourse].” (People v. Perez, supra, 23
Cal.3d at p. 553 [distinguishing case where removal of victim’s underclothing
was essentially part of the rape].) Rather, they were separate and distinct
acts that were “not incidental to or the means by which [the rapes were]
accomplished.” (Ibid.) Garcia’s conduct in kissing and fondling Doe was not
necessary to his commission of the intercourse. We thus conclude there is
substantial evidence to support the court’s conclusion that Garcia harbored
multiple, independent objectives in engaging in the acts.
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DISPOSITION
Garcia’s sentence is vacated. The matter is remanded for resentencing
to allow the trial court to exercise its discretion in determining whether to
sentence Garcia to a full consecutive term on count 19 under Penal Code
section 667.6, subdivision (c) and consider the impact of amended section 654
on Garcia’s sentence. After resentencing, the court shall prepare an amended
abstract of judgment and forward a certified copy to the California
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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