*1 Dist., July Div. One. 1984.] No. 15569. Fourth [Crim. PEOPLE,
THE Plaintiff and Respondent, BISHOP, and Appellant. RUSSELL Defendant JAMES *4 Counsel
Quin Denvir, Defender, State Public under the Court appointment Stuetz, Defender, Appeal, Jeffrey J. Public and Lawrence State Deputy Martin Cohn for Defendant Appellant. General,
John Van de John Carney K. W. M. Attorney Jay Kamp, Bloom, General, Deputy for Plaintiff Attorneys Respondent. Opinion
STANIFORTH, Pursuant to defendant James Russel bargain plea J. crimes Lena S.: Bishop pleaded guilty following against committing Code,1 (Pen. murder 664/187/ attempted harm resulting great bodily §§ statutory 1 All specified. references otherwise are to Penal Code unless 12022.7); 261, (§§ (2), with use of a firearm subd. rape subd. (a)); two acts of inflic- forcible oral one of which involved the copulation, 288a, tion of (§§ (c)/12022.8). the victim great bodily Against subd. injury T., Sanae he pleaded bodily injury, murder attempted resulting great firearm, with rape, the use of a two of forcible one rape copulation, acts resulting great the terms of the re- bodily injury. By bargain, plea (two counts of two additional counts of maining charges kidnaping, rape) were dismissed. deemed to be 12) (count agreed murder of Sanae T. was attempted either a term; 7, S., to be
the base was count murder of Lena attempted concurrent sentence or as to count 12. As to the sex related offenses stayed it was stipulated sentencing court could use the find- great bodily injury (12022.8) ing only as to count the forcible oral Lena S. copulation Any other section 12022.8 be as to count enhancement was to stayed forcible oral copulation of Sanae T. The maximum sentence prison could receive under the was 79 bargain years. sentenced to a total term of 79 as follows: years computed
“9-year term for upper T.), Count murder of Sanae a 3- (attempted plus *5 enhancement; year great bodily injury (forc- term for Count 8 8-year upper ible oral copulation T.); (forcible Sanae term for Count 3 8-year upper oral S.); copulation Lena term for Count 10 8-year Sanae upper (rape T.), enhancement; a plus 3-year gun use term for Count 9 8-year upper (forcible oral T.); (forc- of Sanae copulation term for Count 8-year upper ible oral S.), of Lena copulation bodily injury a enhance- plus 5-year great ment; 8-year S.), term for upper Count 6 of Lena a plus 3-year gun (rape use enhancement.”
A 12-year sentence on with count murder of Lena S. attempted great enhancement, bodily injury to also but ordered run concurrent imposed with count murder term with enhancement attempted 12-year imposed as to Lena S. errors. Bishop appeals, urging sentencing
Facts The facts recited are taken from the statement in aggravation prosecutor’s 21, 1983, and the kid- At 4:30 on probation report. p.m. February Bishop S., two Lena a Californian of naped gunpoint girls, 15-year-old teenage T., descent and Sanae a student from Japanese 17-year-old foreign exchange blindfolded the trash and drove them Japan. Bishop girls, using bags, to San a secluded beach where he tied them He fondled pick-up Diego up. Lena S.’ breasts and and forced her to hold his He then squeeze penis. (while blindfolded) forced Sanae still to T. him. While so orally copulate engaged, ordered Bishop Lena to remove her He then forced Lena clothing. to orally him. He After copulate then to her. to attempted failing pen- rape Lena, etrate he returned to Sanae T. and her. then ordered raped dress, both tied girls their hands each to the other. together girl tied He told them not to move he would He then watching because be them. departed the area. returned,
Sometime he later the but removed the rope blindfolds tightened from neck. He then Sanae’s then forced Sanae to him and orally copulate forced Lena to He then orally him. ordered Lena to disrobe and copulate then raped Sanae. He returned Lena her then returned raped Sanae and Sanae ordered to dress and raped again. Bishop forced girls them into the ocean He then saying girl were to swim. shot each they going several times and left them miraculously for dead. These brutalized victims survived.
The angry after sentencing judge, upbraiding Legislature, appeal law, courts and the he was box announced under “Ottombrino sentencing (see theory” v. Ottombrino 676]) and We de- 79-year total sentence. examine to imposed
termine whether trial court followed the law in this sentence. imposing
I contends the court did state not reasons adequate for term each of forth imposing upper these crimes. court set its reasons in 15 more pages detail. Defendant wants detail. Preme yet ditation Bish readily appears the court-detailed review of activities of *6 truck; he had been seen op: earlier in the area with and trash the gun bags he then area of a kidnaped, lonely the victims to a beach transported come; for the preparation of sex and violence to the crimes occurred orgy over an extended time tied period of had much to reflect. He Bishop time. victims; left the up, later he returned and resumed his course of misconduct. After these several of he shot each victim periods possible premeditation, several times. Premeditation overflows in the record and into the judge’s (Cal. Court,2 421(a)(3).) statement of of reasons. Rules rule The evidence is victims be par- each of these to overwhelming showing females, vulnerable. These a for- ticularly teenagers—one were young student, eign both of were exchange They were small stature. abducted heads), blindfolded over their gunpoint, (plastic were garbage bags placed 2 All rules are specified. references to to otherwise California Rules of Court unless in a state and 17 kept subjection (15 of and terror. females These young years (Rule 421(a)(3).) were the age) most vulnerable of victims.
The found the a vicious- judge crimes involved high degree cruelty ness. To say these crimes do not involve a vicious- high degree cruelty, ness and callousness is close and ears to recitation one’s the simply eyes of fact. these or- victims put through long, torturing, horrifying deal. Not one iota of these humanity committing any appears Bishop’s (Rule crimes. 421(a)(1).)
What is rule 443 state in required by is the judge simple language the primary factors that his v. En- exercise of discretion. support (People right (1982) 132 249].) Cal.App.3d
There are more forth than sufficient facts set judge support term as each of the crimes imposition upper committed.
II next contends the same used to factors were aggravate sentence as used to This is The impose consecutive sentences. not true. court, after a most determined explicit analysis,
(d), applied (1) here because there were victims and separate separate term, occasions involved. The grounds several the maximum supporting sentence, aggravated have been set forth in I The basis for the con above. terms, secutive terms, as well as full were the set forth in section factors 667.6, subdivision victims and sen (d)—separate occasions. separate court tencing considered the there crim facts were two victims inal acts on committed each of the two This finding patently victims. vulnerable, of the independent facts crimes victims were showing were premeditated particularly Hurley vicious. (People 805].) 709-710
III Did the trial court for the lawfully full consecutive terms impose *7 667.6, various sex in crimes with the sub accordance mandate (d)? (the division factual basis for the trial court’s probation report (Sanae T.) the to orally indicates forced second findings) Bishop victim victim (count 8). him He went her to copulate then to the first and forced Next, (count 3). him he to and second orally returned copulate raped 10). (count (time victim He then left the area and returned at a later time unknown) and the were victims to a new series of lapse again subjected First,
sexual offenses each in he time and Sanae separated place. compelled (count 9), him orally then forced Lena to him. copulate orally copulate He then Sanae and then returned to and the second victim. raped raped Thus, he went back and are the Again only Sanae one more time. not raped time, first series of offenses for a separated by Bishop’s departure length unknown, but also the terms various sex acts for which consecutive single were are both event—the com- imposed separated by time and a substantial mission of a sex crime on another victim. 667.6, full,
Section (d), declares and consecutive separate terms shall be served for where vic- forcible rape, copulation, separate tims are involved or the same victim is involved on occasions.” “separate Here there are distinct occasions terms. separate authorizing separate acts, Thus, Within each series sex alternated between the victims. occasions, victim each sexual act on one occurred on or separate preceded succeeded a on by sexual assault the other. relies Fleming upon Cal.App.3d his is Fleming factually distin support position. 619] There was but
guishable. a victim abused over a single sexually repeatedly of hours. The trial court consecutive sentences period upon imposed relying 667.6, (d), which mandates consecutive sentences the “same on victims” occasions or victims.” Subdivi “separate (d) (c). sion must be contrasted with section The latter articulated choice—consecutive sentences for sex of permits—upon judicial ” fenses committed transaction. Said the court “during single Fleming: “To characterize even sexual acts within a few moments or a few occurring other, house, seconds of each such as as offenses committed on those at occasions,’ (140 ‘separate is to rob that term of any meaning.” Cal.App.3d 545.) A this sound rule of p. Fleming statutory interpretation: applied court should avoid a construction which renders a a statute part surplus- age; (d) court reasoned if subdivision to acts committed within applied other, minutes of each there would be no room for the permissive imposition (c). of consecutive concluded: “Con Fleming sentences under subdivision . . . some or time must occur be sequently, intervening passage events (d) (Ibid.) tween the sexual offenses before subdivision applicable.” The court in People v. Reeder the term using intent sought legislative capture 479] detachment” There occasions.” as the
“episodic equivalent “separate must be “an of sufficient duration or the criminal interruption activity nature that the end of one sexual and the start of another can be episode omitted.) (Ibid., ascertained with reasonable Reeder rea fn. certainty.” soned: test for consecutive under section subdi- punishment “[T]he *8 (d), vision is not whether a transaction is divisible but is rather wheth- single er the offenses occurred on occasions from disjoined each other. omit- [Fn. The Legislature’s use of the ted.] occasions’ phrase ‘separate consequently imposes requirement of detachment of one from another before episode the mandatory (d) of requirements subdivision become de- applicable. By tachment we mean an in the criminal du- interruption activity of sufficient ration or nature that the end one sexual the start another episode of of can be ascertained with reasonable certainty. [Fn. omitted.]
“Just as a drama scenes, is divided into acts with so too separate many is the legislative scenario of consecutive for mandatory sentences multiple acts, scenes, violent sex offenses. It is the separate and not the crim- of inal (Id., that tragedy the law seeks to isolate and punish harshly.” more 915-916, at pp. added.) italics
People v. Calhoun Cal.App.3d 115] case only factually similar to the instant case. and successive Multiple alternate of raping 667.6, two victims took While section place. subdivision (d), was not the attention, critical focus of the court nevertheless analyzed the “separate transactions” The of time concept. varied between the length various sex acts. The court there found showed these facts acts separate rapes these two women were time some on “separated by thought defendant’s therefore part,” warranted the consecu- imposition separate tive aggravated (Id., 126.) sentences. at p. court sentencing here made factual vic- specific findings separate
tims, acts, i.e., 667.6, detachment” “episodic as a basis (d), There sentencing. is substantial evidence in this record which supports court’s conclusions and affirmance of its find- requires ing.3 (People v. Lee 231].) if more
Finally, is needed to the trial court’s of full support imposition sentences, consecutive court, caution, then it the trial out of alter- appears sentenced natively (c). under section The court specified its reasons for this It choice. articulated a factual basis and exercised dis- cretion as authorized by (c), in the imposition “full term consecutive sentences.” This reinforced tech- doubly no nique requires remand for resentence. ended, 3 When the sexual assault on the one victim a sexual assault on the other victim
began, the assaults on the interrupted, separated, place. first victim were both time and There was a clear cessation between the sexual acts on an the one victim. There was event of sufficient intervening begin duration and nature between the episode end of one ning of another reasonably “intervening place to be Some ascertainable. event” took be against tween the sexual assaults committed the same victim. *9 382 (1984) v. Smith
People 155 539 Cal.Rptr. approved Cal.App.3d [202 259] this alternate “We do that once a sentencing technique, stating: suggest court determines that full term is sentencing consecutive sentencing required (d) by subdivision of section 667.6 it should so and should then also say state whether it would the same under the impose discretionary sentencing (c) and, so, 545.) of provisions (Id. subdivision if why.” p.
IV for full the court’s statement of reasons Bishop complains imposing 667.6, (c), consecutive sentences a simply under section subdivision of the earlier statement of reasons for consecutive sentence gen restatement true, Albeit this was not While the court chose to sentence erally. error. 667.6, (c) (d) under both in rule 441 subdivisions and of section nothing the use of the same reasons to full consecutive sentences proscribes impose 667.6, (c), be under the section subdivision as used to permissive may lenient consecutive sentences rather than follow the more impose sentencing prescribed by 1170.1. said in 34 335 (1983)
As was v. Belmontes Cal.3d People 882, 667 P.2d the reasons full justifying “This does not mean that 686]: 667.6, (c) term consecutive subdivision must nec under section be different than those used to of consecutive essarily justify imposition 425—which, sentences under section The criteria listed rule as 1170.1. noted, those of to both decisions and incorporate 423—apply rules cover all of is is an identi degrees required nuances What depravity. fication of the criteria which harsher drastically provisions use justify 667.6, (c).” (Id., 348.) of section v. Wilson at p. 343, 352, “While footnote said: 498] is state reasons sentencing judge utilizing required separately (c), that the reasons must be separate this does not mean and distinct from of consecutive sentences those used to justify imposition exclusive, . . . . This which is not suggested sentencing procedure, [f] not of facts.” subject dual use prohibition against
In consecutive sentences here the court said the crimes were imposing (rule independent 425(a)(1)); each other involved acts of they (rule 425(a)(2)); (rules violence and involved conduct a of violent pattern 425(b) 421(b)(1)). The evidence of violent con- demonstrated a pattern duct which made grave society. After danger completion victims, these of them sexual assaults on the two he shot each alternating times, several left them when he them dead. This only horrifying thought cruel conduct the court’s choice of portrait grossly more than justifies (c). consecutive one of the sentences under section Any factors articulated the court the consecutive sentences support would warrant the result obtained. v. Covino (People *10 155].) 660 V . next argues he is entitled to remand for in Bishop resentencing light Belmontes, 335, v. People which the sen supra, 34 Cal.3d authorizes court in its tencing discretion to treat sex offenses or a nonsex offense as (Id., 346.) Here, the “principal term.” not blessed with p. the court was to discretion make this “Belmontes the terms particular By choice.” express of the T., 12, the plea bargain, murder of Sanae count was to be attempted term, the offense, principal and the other nonsex murder Lena attempted (count 7), S. was to be served concurrently or stayed.
In an to bench, attempt this rule case at impose Belmontes the upon Bishop suggests court could have not follow sentencing plea decided to bargain. Had the court followed such would procedure, plea bargain be to be required vacated. Both the and the enti- defendant are prosecution tled to the benefits 937, of their (People v. Orin 13 Cal.3d bargain. 942, 193].) P.2d Belmontes does not require remand in the light of this and its fulfillment in trial stipulation faithful court’s sentence.
Finally, 348-349, Belmontes footnote 34 Cal.3d at points out pages a remand for not may be if the record indicates the resentencing required court sentencing it clearly indicated would have exercised its discretion not to sentence under section it 1170.1 even if had been aware the fact it had Here, such discretion. the court the consecutive sentences under imposed 667.6, both section (d) (c) (out subdivisions of an abundance of cau- tion). It would be a reasonable deduction from record the court would this not choose to sentence under section 1170.1 even if authorized. ’ Belmontes
Finally, case dealt with applicability doubtful because that under sentencing 667.6, (c) subdivision and does not discuss the mandatory (d) under subdivision sentencing as occurred here.
VI Finally, contends the an en erroneously trial court imposed 1170.1, hancement under section (i). This declares provision for any that violation of various Penal Code certain relating provisions (such sex crimes as 288), and/or number enhancements which §§ limited, be shall may “shall not be Each . . imposed .... . enhancement[] be with merged and shall not be a full and served enhancement separately it was error for term or enhancement.” contends any with other any 667.6, (i), when it chose section the court use section law. (c) (d), as the subdivisions applicable (i), it cannot hints Nothing language under to sentence be used authorize enhancements when the court chooses section 667.6. Belmontes, 335, 345-346),
As was Cal.3d noted supra, *11 sentence, rather the 667 not an is exclusive means imposing fashioning court can section 667.6 well as section 1170.1 as employ Calhoun, People An result obtained in analogous sentence. appropriate 117, 126-127, it out section where was supra, pointed full, terms for (h), consecutive subdivision mandates imposition Court in The Supreme each enhancement on each enumerated sex crime. 897, 913, v. Cardenas footnote Cal.3d 165, 647 it stated that section P.2d this where supports position, also 569] to the (h), “single was one “possible exception” 330, 333-334 occasion rule” of In re Cal.3d Culbreth 719, 23], P.2d is affirmed all judgment respects. (Gerald), J., Brown P. concurred.
WORK, III and VI for sections except I concurin the majority opinion J. I in which concur result. I consecu- impose
While court concur that the could properly on Sanae acts committed tive sentences the two forcible sex abuse, also for the three separate initial sexual during episode it because acts committed her the second later upon during episode, Further, (c). I court sentenced them to section pursuant act there is for the evidentiary support finding Bishop’s agree implicit to mandate after his first series crimes sufficient leaving girls committed after those consecutively those crimes be sentenced completed in the re- (d). I do not concur he returned under because, frankly, disagree I discussion in section III maining holding as its with to these facts. application