The court sentenced defendant to state prison for 205 years to life plus 28 years. The sentence was comprised of the following: 50 years to life on the principal count - count 3 (rape in concert with kidnapping); a consecutive term of 50 years to life on count 4 (rape in concert with kidnapping); a consecutive term of 50 years to life on count 5 (oral copulation in concert with kidnapping); a consecutive term of 50 years to life on count 6 (oral copulation in concert with kidnapping); a consecutive term of 28 years on count 1 (human trafficking), which was the 14-year-midterm, doubled because of defendant's prior strike; a concurrent term of six years on count 7 (robbery), which was the three-year midterm doubled because of
Defendant kidnapped a victim, raped her, then forced her into prostitution. On appeal defendant contends the evidence was insufficient to show forcible rape because the two rapes at issue were accomplished by threats, a lesser offense, not force. Defendant also contends he cannot be liable for rape in concert because there was no evidence the victim's "customer" (the john) was aware the intercourse was without the victim's consent. Thus, the argument goes, the john did not commit rape, and defendant, therefore, cannot have committed rape in concert with the john. We conclude substantial evidence supports the verdict on both fronts.
Defendant also argues there was instructional error. He contends the instructions on forcible rape were unclear, but he forfeited that objection by failing to raise it at trial. He also contends the jury should have been instructed on mistake of fact as to the john's belief about the victim's consent. That was not his theory at trial, however, and there was no evidence to support mistake of fact. To the contrary, the uncontroverted evidence was that the victim told the john she did not want to have intercourse. Accordingly, the court had no sua sponte duty to instruct the jury on mistake of fact.
Finally, defendant raises various sentencing issues. First, defendant contends the court misunderstood it had discretion to impose the sentences on counts 3, 4, 5, and 6 either consecutively or concurrently. We agree. Second, we agree with defendant that the sentence on count 8 (pimping) should have been stayed pursuant to section 654. Third, the people concede defendant is entitled to two additional days of credit for time served, and we concur. Fourth, defendant argues he was entitled to conduct credit. There, we disagree. Finally, in a supplemental brief defendant contends he is entitled to a remand so the court may exercise its newly granted discretion to strike the five-year enhancement imposed pursuant to section 667, subdivision (a)(1). The People concede that issue, and we agree. We will remand the matter for resentencing.
FACTS
Yolanda (Counts 1-9)
In July 2015 the victim, Yolanda, and her boyfriend, who were homeless, were walking on either Beach Boulevard or Garden Grove Boulevard in
After they watched fireworks and got marijuana, Yolanda told defendant and Destiny that she wanted to go home. But instead of taking Yolanda back to the motel,
While they were in the car, Destiny began to orally copulate defendant. Yolanda told them "that was gross." At some point while Destiny was doing this to defendant, defendant began touching Yolanda's legs and breasts. Yolanda felt very uncomfortable and asked defendant to stop several times. Defendant ordered Yolanda to take off her clothes. When Yolanda refused, defendant told Destiny to get "the gun," and Destiny complied. Defendant held the gun to Yolanda's side and said, "Bitch, take off your clothes." Yolanda got undressed. Yolanda was afraid of defendant because he had a gun and was bigger than her. The "gun" was actually a phone charger, but Yolanda believed it was a real gun. It was dark inside the car.
Defendant got out of the car and got into the back seat with Yolanda and put on a condom. He then ordered Yolanda to orally copulate him. She did not want to do this and told defendant she did not want to, but she complied "because of the gun that was in the car." Yolanda was crying and gagging as she orally copulated defendant. Defendant ordered Yolanda to lay down on the back seat and he raped her. Yolanda cried and told defendant to stop several times. When Destiny said it was her turn, defendant and Destiny pinned Yolanda in the back seat and had sex on top of her. Defendant ordered Yolanda to put her mouth on Destiny's breasts.
After that, defendant got out of the car, opened the trunk and told Yolanda that she was "going to get dolled up." He told her she was going to be an escort and "vaguely explained" to her what that meant. Yolanda told defendant that she did not want to have sex with other men or be an escort. Defendant ignored her. At some point, defendant ordered Yolanda to remove her engagement ring and necklace and told her that she belonged to him now.
Yolanda and Destiny got out of the car and began walking down the street. When an Asian man (the john) approached them for sex, Destiny "was doing all the talking" and "agreed for" Yolanda. The john drove Yolanda and Destiny to a neighborhood and parked his minivan. As soon as they parked, Destiny ordered Yolanda to remove her clothes and to give the john a condom. The john gave Yolanda $60.00 and she gave the money to Destiny. The john then orally copulated Yolanda. Yolanda did not want the john to do this to her. After the john finished orally copulating Yolanda, he put on the condom and had sexual intercourse with her. As he did so, Yolanda told Destiny that she did not want this to be happening. Yolanda testified that she told Destiny, who was in the car with her, "before it happened, after it happened, [and] during" that she did not want this to happen.
When the john was finished, he drove them back to the area where he had picked them up. Destiny called defendant and asked if they could return to his car because she was tired. Destiny and Yolanda then walked to where defendant was parked. It was approximately 1:00 a.m.
Alexandra E. (Counts 10-12)
Alexandra E. was a prostitute in March 2013 when she met defendant. From that day on, Alexandra was in "a relationship" with defendant for the next two years. During that time, Alexandra worked as a prostitute for defendant. Defendant also had four or five other girls working for him. On occasion, defendant would hit Alexandra, and one time he gave her a black eye. On one occasion when Alexandra did not want to work as a prostitute because it was too cold, defendant pushed and kicked her out of the car.
Caroline D. (Uncharged Event )
Caroline D. testified about an uncharged event under Evidence Code section 1108. In May, 2009, she was in a rehabilitation center for alcohol abuse. One
DISCUSSION
Defendant raises several issues falling into three broad categories: sufficiency of the evidence, instructional errors, and sentencing errors. We address each in turn.
Sufficiency of the Evidence
"When reviewing a challenge to the sufficiency of the evidence, we ask ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence-that is, evidence which is reasonable, credible, and of solid value" ' that would support a finding beyond a reasonable doubt." ( People v. Banks (2015)
Defendant contends the evidence was insufficient as to counts 3 (forcible rape in concert; § 261.4, subd. (a)), 4 (forcible rape in concert), and 6 (oral copulation in concert by force or fear). Count 3 charged defendant with directly raping Yolanda. Count 4 charged defendant with raping Yolanda in concert with the john. Count 6 involved oral copulation in concert with the john.
As to the forcible rape counts, defendant contends the evidence was insufficient because the rapes were accomplished by a threat of force, rather than actual force.
"The term 'force' as used in the rape statute is not specifically defined." ( People v. Griffin (2004)
Accordingly, the Griffin court concluded, "the degree of force utilized is immaterial." ( Id. at p. 1025,
Additionally, defendant pressed what Yolanda thought was a gun up against her side. That physical force, though not particularly powerful in pure physical terms, surely helped induce the fear needed to overcome Yolanda's will. (See Griffin, supra,
The same reasoning applies to count 4, involving the john. That rape also involved the john pinning Yolanda down in the back seat of a car. And the fear induced by defendant physically pressing a fake gun against Yolanda's side was still effectively overcoming her lack of consent to the intercourse.
The John Counts
As to the counts involving the john (4 and 6), defendant contends there was no evidence the john was aware of Yolanda's lack of consent, and consequently, there was no evidence the john was guilty of rape. ( People v. Mayberry (1975)
Aside from the logical flaw in this argument (which we address below), this argument simply does not comport with the evidence. Yolanda testified that she expressed to Destiny, who was in the front seat of the john's car, "before it happened, after it happened, [and] during" that she did not want this to happen. A jury could certainly conclude from this evidence that the john was aware of her lack of consent. Defendant's only response is, "Yolanda never specified how she told Destiny; whether it was done in a manner in which the john could hear or done so in [a] way that would inform the john about her predicament." But if Yolanda said it loud enough for
Instructional Error
Defendant raises two claims of instructional error. First, in connection with counts 4 and 6 (the john counts of forcible rape in concert and oral copulation by force or fear), he contends the court should have instructed the jury on mistake of fact because of the john's alleged mistake regarding whether Yolanda consented to intercourse. Second, in connection with counts 3 and 4 (forcible rape in concert), defendant contends the instructions were inadequate on the requirement of force. "[A] claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo." ( People v. Martin (2000)
Mistake of Fact
Defendant did not rely on a mistake-of-fact defense at trial, nor did he
It is equally well settled that, "[i]f believed by the fact finder, a defendant's honest and reasonable, albeit mistaken, belief in the victim's consent is a complete defense to a charge of ... rape." ( People v. Brooks , supra ,
As relevant here, rape under section 261, subdivision (a)(2), requires sexual intercourse against the victim's will accomplished by means of force or violence. The evidence supports those elements, as we have already seen. Because nearly every crime requires a mens rea, however, our courts have held that a defendant must have intended to have sex against the victim's
All elements of section 264.1 are met here. Defendant acted in concert with Destiny and the john to accomplish sexual intercourse with Yolanda, against her will, by means of force or violence. What about the mens rea? Here is defendant's error: even if the john did not have the mens rea to personally be found guilty of rape, defendant did . This is not a situation where the rape of Yolanda was an innocent mistake. Defendant intended it. We see no reason, against all logic and common sense, to impute the john's mental state to defendant. In other words, the statutory elements are satisfied, and the implied mens rea requirement is also satisfied. Accordingly, the john's alleged mistake of fact would be no help to defendant. The court did not err in omitting the instruction.
Moreover, even if defendant could benefit from the john's mens rea, there was not substantial evidence that the john honestly and reasonably believed Yolanda consented. The john did not testify. The evidence defendant relies on is, essentially, the absence of any evidence from which the john could infer lack of consent. But Yolanda testified she communicated her lack of consent before, during, and after the intercourse. Between that, and the fact that Destiny was chaperoning her the whole time, the circumstances were not such that the john could entertain an honest and reasonable belief that Yolanda consented.
Force
The jury was instructed on rape in concert as follows: "The defendant is charged in Counts 3 and 4 with Committing Rape
Defendant argues that instructing the jury that it had to find "forcible rape" is insufficient because the reference back to the rape instruction included language about not only force, but also threats of force and fear that would not satisfy the elements of section 264.1. In other words, defendant contends the instruction is unclear or confusing.
Defendant forfeited this argument by failing to object at trial. "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal [citation]." ( People v. Lee (2011)
Sentencing Issues
Defendant raises three sentencing issues. First, he contends his concurrent sentence on count 8 (pimping) should have been stayed pursuant to section 654 because he was already punished for the same activity in count 1 (human trafficking). Second, he contends the court incorrectly believed it had to run the punishment on counts 5 (oral copulation in concert) and 6 (same) consecutively to counts 3 (forcible rape in concert) and 6 (same). Third, defendant contends the court incorrectly counted his time-served credits and erroneously denied him conduct credits.
Section 654
Section 654, subdivision (a), provides: "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." " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654
"Decisions since Neal [v. State of California (1960)
The jury was instructed on the following elements of human trafficking: "1. The defendant either deprived another person of personal liberty or violated that other person's personal liberty; [¶] AND [¶] 2. When the defendant acted, he intended to commit or maintain a felony violation of Pimping and Pandering." The jury was instructed on the following elements of pimping: "1. The defendant knew that Yolanda S. ... was a prostitute; [¶] AND [¶] 2. The money/proceeds that Yolanda S. ... earned as a prostitute supported defendant, in whole or in part."
As charged under the facts of this case, the human trafficking and pimping were part of the same criminal "intent and objective" ( Neal v. State of California (1960)
In arguing otherwise, the People rely on People v. Deloach (1989)
The People vaguely urge us to conclude that because force was used here, a different criminal intent arose. But there is no broad rule that any crime involving force is exempt from section 654. Each case must be analyzed on its own facts. The present case is distinguishable from Deloach on the ground that, there, forcible sex acts were not necessarily entailed in pandering, even though the pandering itself was by means of threats of force. The mother in Deloach may have intended the daughter, once forced into prostitution, to willingly comply with a john's demands. In other words, her intent and objective was not necessarily to have her daughter subjected to forcible sex acts. Here, by contrast, defendant could not possibly have committed human trafficking without the intent to pimp. Again, the intent to pimp was an element of the human trafficking charge.
The Court's Discretion to Sentence Count 5 Concurrently with Count 3 and Count 6 Concurrently with Count 4
Next, defendant contends the court erred in sentencing him consecutively on counts 3 (forcible rape in concert), 4 (forcible rape in concert [with the john] ), 5 (oral copulation in concert) and 6 (oral copulation in concert [with the john] ) based on its comment that they are "required to be consecutive," and "[t]here's no discretion." The People acknowledge the court's assertion was incorrect. It did, in fact, have discretion to run counts 3 and 5 concurrently, and counts 4 and 6 concurrently. Nonetheless, the People argue we should affirm on the ground that the record makes clear the court would have run
Under section 667.61, subdivision (i) (the One Strike Law), the court is required to impose consecutive sentences for multiple violations where "the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6."
In applying this standard, courts have held, for example, the offenses of placing a finger in the victim's vagina, kissing her genitals and then placing
In contrast, where the offenses are interrupted by the defendant's non-sexual activity, they occur on a separate occasion. ( Solis, supra, 206 Cal.App.4th at pp. 1217-1218,
Here, the evidence does not reveal any significant break between defendant forcing Yolanda to orally copulate him and then proceeding to rape her. Likewise, the evidence does not reveal any significant break between the john doing the same. The People concede as much.
We disagree that the court's exercise of its discretion regarding whether to run the counts concurrently is a foregone conclusion. The People rely on the fact that the court recited aggravating factors in justifying the various sentencing decisions it made. However, the court did not run all of the counts consecutively, and the court
Credits
Finally, defendant contends the court erred in allotting credits for time served and good conduct. The People concede that defendant is entitled to two additional days of credit for time served. Defendant was arrested on July 5, 2015. He was sentenced on March 16, 2017. The sentencing court should give credit for the day of arrest, the day of sentencing, and all days in between. ( People v. Bravo (1990)
Where the parties differ is whether defendant is entitled to conduct credits. The court held he is not entitled to conduct credits. The People contend the court was correct, relying on section 667.61, the One Strike Law, which says nothing about credits. A prior version of the One Strike Law allowed up to 15 percent of actual credits as conduct credits, but the Legislature amended the statute in 2006 by removing that provision. (Stats. 2006, ch. 337, § 33.) The People argue this evinces an intent to eliminate conduct credits for violations of the One Strike Law. Defendant contends that in the absence of any express statement in section 667.61, the issue is governed by section 2933.1, which limits conduct credits to 15 percent for convictions involving violent felonies.
The court in People v. Adams (2018)
Senate Bill 1393
Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667. The result is courts now have discretion to strike a five-year enhancement. The amendment applies retroactively to all cases not final on its effective date. ( People v. Garcia (2018)
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for resentencing to allow the court to exercise its discretion in determining: (1) whether to run the sentences for counts 3 (forcible rape in concert) and 5 (oral copulation in concert) concurrently or consecutively; (2) whether to run the sentences for counts 4 (forcible rape in concert [with the john] ) and 6 (oral copulation in concert [with the john] ) concurrently or consecutively; and (3) whether to strike the five-year enhancement pursuant to section 1385. The
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.
Notes
All further statutory references are to the Penal Code unless otherwise stated.
The One Strike Law imposes a sentence of either 15 or 25 years to life for certain enumerated sexual offenses committed under specified aggravating circumstances. (§ 667.61, subds. (a) (b).)