Lead Opinion
Opinion
We here determine the applicability of enhancements under Penal Code section 12022.3, subdivision (a) (§ 12022.3(a)),
I. Facts and Procedural Background
Mary K. and her mother, Marietta K., lived in an apartment complex in Fresno, California. Mary had managed the complex for over 10 years. At
As defendant and Mary walked into the living room, defendant turned around and pointed a gun at her face. He told her to put her hands up and give him her purse. Mary explained she did not have a purse, and defendant asked to see her checkbook. Mary complied. Defendant set the checkbook down and told Mary to go into the kitchen. She assumed the gun was pointed at her head. He told her to lie facedown on the kitchen floor and tied her hands and feet with telephone cord. He then “hog-tied” her, tying her hands and feet together.
Marietta, Mary’s mother, then came downstairs. Defendant “polite[ly]” told her, “Your daughter wants to see you in the kitchen.” Marietta responded, “Oh, I wonder what she wants.” As Marietta entered the kitchen, she saw Mary on the floor, and said, “Oh, my God.” Mary told her, “Just do whatever he says to do, because he has a gun.”
Defendant sat Marietta on a kitchen chair and tied her hands and feet with a cloth parrot cage cover. He then said he wanted jewelry and money. The two women directed defendant to various locations of the house. After exploring each proposed area, defendant returned to the kitchen, and the women suggested another location. They “figured if [they] cooperated that he wouldn’t kill [them]. When he would go upstairs, [they] would talk and think of different places where money might be, so if he got enough that he would just leave [them] alone.” Mary “could only really see [defendant’s] feet” during most of this period.
Defendant then blindfolded the women. Mary noticed that “[i]t was quiet for awhile.” Defendant then turned Mary on her side. “[I]t felt like he had taken a butcher knife and started at [her] knee and just ran it as slow as he could all the way down to [her] ankle. [She] was screaming, because it was ... the most excruciating pain you could think of. It was like to the bone. [She] kept waiting to feel the fluid of the blood coming out and [she] didn’t feel it and [she] didn’t know what he’d done.” Defendant had apparently spliced several electrical cords together and shocked Mary with this makeshift instrument. Defendant also shocked Marietta’s right arm. After he finished, defendant said, “That’s a warning to show you what I can do to you.”
Defendant “unhogtied” Mary and went through her pockets for money. He then unzipped her pants. Mary said, “You’re not going to rape me?”
After the assault, Mary’s blindfold came off her left eye, enabling her to “see partially.” Defendant began smoking, swearing, and throwing objects. Mary testified, “I thought he was going to kill us then.” He “was in the butcher knife drawer.” She “figured maybe his gun broke or something,” and “was afraid ... he was going to slit [their] throats.” Instead, defendant gagged Mary, threatened to kill the women if they ever called the police, and left. Mary did not see the gun again after defendant first pointed it at her. After discovering that she was bleeding profusely, Mary called the police.
The jury found defendant guilty of rape (§ 261, subd. (a)(2)), sodomy (§ 286, subd. (c)), first degree burglary (§§ 459, 460), two counts of residential robbery (§§211, 212.5, subd. (a)), two counts of false imprisonment (§ 236), and two counts of torture (§ 206). It further found that defendant used a firearm (§ 12022.3(a))
The court sentenced defendant to serve two consecutive life terms for the torture counts, to be served following a total determinate term of forty-five years and four months for the other offenses and enhancements. As relevant here, the sentence included two 4-year enhancements under section 12022.3(a) for use of a firearm in the commission of the rape and sodomy. The court also imposed a $10,000 restitution fine and an additional $100 fine under section 290.3.
The Court of Appeal reversed the great bodily injury enhancement as to the sodomy count and reduced the restitution fine to $200. In all other
II. Discussion
Defendant contends that there is insufficient evidence to support the enhancements under section 12022.3(a) for use of a firearm in the commission of the rape and sodomy. Specifically, he asserts that he did not “use” the gun “in the commission of’ the sex offenses because he displayed it only at the outset of his criminal activity, approximately one hour before he committed the sex offenses, and he left Mary several times during the interim to commit crimes in other parts of the house. We disagree.
At the time of defendant’s crimes, section 12022.3(a) provided in relevant part: “For each violation of Section 261 [rape], . . . 286 [sodomy], . . . and in addition to the sentence provided, any person shall receive an enhancement (a) of three, four, or five years if the person uses a firearm or any other deadly weapon in the commission of the violation . . . .”
Whether a defendant “used a firearm in the commission of’ an enumerated sex offense is for the trier of fact to decide. (People v. Najera (1972)
Our decision in Chambers preceded the enactment of section 12022.3(a). However, the language of section 12022.5 construed in Chambers is substantially similar to that of section 12022.3(a). “Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]” (People v. Harrison (1989)
Here, defendant concedes that he used the gun in the commission of the theft offenses. However, citing People v. Funtanilla (1991)
The Court of Appeal reversed the jury’s finding that the defendant used a weapon in the commission of the second rape, two acts of oral copulation, and the rape in concert. (People v. Funtanilla, supra, 1 Cal.App.4th at pp. 333-334; § 12022.3(a).) The court stated that “[t]he meaning of ‘in the commission’ varies depending on the nature of the offense. Theft crimes such as burglary, robbery and receiving stolen property have been held to remain ongoing beyond the time of the physical conduct constituting the offense until the time the felon has reached a place of temporary safety. [Citations.] . . . [H Unlike theft or homicide offenses, the completion of a sex offense has been narrowly defined in order to avoid the multiple punishment proscription of section 654 and to permit imposition of multiple punishment of a defendant who commits multiple sex offenses against a single victim. [Citation.] Each criminal sexual act, even when one follows another in rapid, uninterrupted succession, is considered a discrete and segregated crime, to which the single intent and objective test of section 654 does not apply. [Citations.] . . . [S]hould a defendant use a weapon in the commission of a nonsex offense which immediately succeeds a sex offense in which there has been no weapon use, the weapon use does not also attach to the sex offense because the latter is completed and a new offense has begun. [Citation.]” (People v. Funtanilla, supra, 1 Cal.App.4th at pp. 331-332.)
No other Court of Appeal has reached the same conclusion as Funtanilla. In People v. Jackson (1980)
In People v. Turner (1983)
On appeal, Turner contended that the trial court should have instructed sua sponte on being armed with a deadly weapon and firearm because the allegations under sections 12022.3(a) and 12022.5 that he personally used a firearm necessarily included the arming enhancements as well. (People v. Turner, supra,
In People v. Camacho (1993)
Funtanilla in turn distinguished People v. Turner, supra,
Defendant contends, “Funtanilla controls here.” In particular, he asserts that, because he left the kitchen on several occasions before raping and sodomizing Mary, and was in the apartment for more than an horn- before committing these sex crimes, a finding that he used a gun in the commission of the rape and sodomy was impermissible absent evidence that he again displayed the gun immediately before committing the sex crimes.
We disagree. In considering whether a gun use occurred, the jury may consider a “video” of the entire encounter; it is not limited to a “snapshot” of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although defendant’s presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter.
Here, defendant tied up Mary and Marietta immediately after his initial gun display. Having thereby incapacitated his victims, defendant was free to commit whatever crimes he desired at his leisure and in any location. Thus, neither the fact that defendant left the room on numerous occasions, nor that he spent an hour robbing and torturing Mary and her mother before raping and sodomizing Mary, had any bearing on her continuing state of helplessness engendered directly by the gun use. Given the control that defendant’s initial gun display effected, use findings under section 12022.3(a) were permissible even if he did not “continually display the weapon during the course of later crimes.” (People v. Turner, supra,
In addition, a jury could also conclude that the fear defendant’s initial gun display instilled continued throughout the encounter and aided defendant in completing an essential element of the crimes of rape and sodomy. (§§ 261,
Citing Funtanilla, defendant also argues: “[T]heft counts are ‘continuing’ in nature: that is, they are not complete unless and until the perpetrator reaches a point of temporary safety. [Citation.] Thus, a firearm display which occurs during the commission of one theft count will ‘carry over’ to all of the others which are committed between the display of the firearm and the point where the perpetrator reaches the place of temporary safety. [Citation.] However, sex offenses are of limited duration. They typically begin with each new penetration and end when that penetration ends. Because they are not ‘continuing’ offenses, a single firearm display committed in connection with one offense will not ‘carry over’ to a subsequent offense unless there is some substantial evidence that the firearm was actually used in the commission of that offense.” As additional support, defendant cites People v. Fierro, supra, 1 Cal.4th at pages 226-227, where we held that a firearm use enhancement applied to a defendant who committed robbery and used a gun to facilitate his escape or prevent his identification as the robber, but not during the actual taking or against the robbery victim. Defendant also cites People v. Dobson (1988)
We reject this contention. A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements. (See People v. Chambers, supra, 7
Moreover, People v. Fierro, supra,
Defendant further asserts that “. . . logic permits either the imposition of separate sentences for the underlying sex offenses, or separate enhancements on each count, but not both. ... If California law has narrowly defined the duration of sex offenses in order to avoid Penal Code section 654’s prohibition upon multiple punishments and permit lengthier sentences for the commission of such offenses, it cannot logically turn around and broadly construe the duration of the same offenses in order to also impose sentence enhancements.” However, we hold only that the jury may find true a gun use allegation when it concludes a defendant “utilized the gun at least as an aid in completing an essential element of’ a subsequent crime. (People v. Chambers, supra, 7 Cal.3d at pp. 672-673.) Moreover, contrary to defendant’s implication, and language in People v. Funtanilla, supra,
Finally, defendant asserts that the Court of Appeal’s conclusion conflicts with the purpose of the weapon enhancement statutes “ ‘to deter the use of
We believe these fears are unfounded. Defendant fails to recognize that attaching an enhancement to each crime an initial firearm display facilitates may discourage a defendant from using a firearm at all. Thus, our conclusion furthers section 12022.3(a)’s legislative objective “ ‘to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use.’ [Citations.]” (People v. Fierro, supra, 1 Cal.4th at pp. 225-226.) Defendant’s interpretation, by contrast, weakens the section’s deterrent effect by greatly reducing the consequences of a defendant’s initial firearm use.
Conclusion
We conclude the jury could have reasonably found that defendant utilized his initial display of the gun “at least as an aid in completing an essential element of’ the subsequent crimes of rape and sodomy. (People v. Chambers, supra, 7 Cal.3d at pp. 672-673; §§261, subd. (a)(2), 286, subd. (c).) Accordingly, the evidence was sufficient to support imposition of section 12022.3(a) enhancements for those crimes. (People v. Johnson (1980)
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
All further statutory references are to the Penal Code.
The court had instructed: “It is alleged in Counts One and Two that the defendant personally used a firearm in the commission of rape and sodomy pursuant to Penal Code Section 12022.3(a). If you find the defendant guilty of either of these charges, you must determine whether or not the defendant personally used a firearm in the commission of such crime. [DU ... [1 The term ‘used a firearm,’ as used in this instruction, means to intentionally fire a firearm, to intentionally strike or hit a human being with a firearm, or to display a firearm in conjunction with a threat that it will be used. [DU The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it not to be true.”
This subdivision now provides for a three-, four-, or ten-year enhancement.
At the time of defendant’s crimes, section 12022(b) provided in relevant part: “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted. . . .” (Stats. 1989, ch. 1284, § 2, p. 5058.)
At the time of defendant’s crimes, section 12022.5(a) provided in relevant part: “[A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of such felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years, unless use of a firearm is an element of the offense of which he or she was convicted. . . .” (Stats. 1990, ch. 41, § 3, p. 246.)
In People v. Blevins, supra,
To the extent defendant is arguing there was insufficient evidence to support the section 12022.3(a) gun use enhancements for the two sex crimes because of the “noncontinuing” nature of those crimes, the assumptions underlying this argument are flawed. In People v. Harrison, supra,
Dissenting Opinion
I dissent. The record reveals that no substantial evidence supports the verdict finding true the weapons-use enhancements for the sex crimes.
Multiple sex offenses may be completed seriatim during a single course of conduct. Each is discrete. The effect of this rule is to increase punishment. “Assuming other elements of the offense are present, a statutory violation is generally complete as soon as the requisite ‘penetration,’ ‘touching,’ or contact occurs. We have explained the underlying rationale as follows: ‘As [Penal Code] section 263 notes with regard to the sufficiency of “penetration” in rape cases, the “essential guilt” of sex offenses lies in the “outrage” to the person and feelings of the victim ....[] The “slight penetration” language confirms that this peculiar “outrage” is deemed to occur each time the victim endures a new, unconsented sexual insertion. The Legislature, by devising a distinctly harsh sentencing scheme, has emphasized the seriousness with which society views each separate unconsented sexual act, even when all are committed on a single occasion.’ ” (People v. Scott (1994)
But because each such offense is discrete, there must be substantial evidence that defendant used a gun for each. I doubt that a weapon must be brandished each time; under Chambers it need only be “ ‘applied] to advantage.’ ” (
It seems that the crime spree lasted from two hours to two hours and forty-five minutes. At a minimum, it took more than an hour. Initially, defendant displayed a gun to the younger victim in order to rob. She never saw it again. She testified that she feared its presence when she told her mother, the second victim, to comply with defendant’s orders, but later
Shying away from the discrete nature of sex offenses, the majority hold that “the jury may consider a ‘video’ of the entire encounter; it is not limited to a ‘snapshot’ of the moments immediately preceding a sex offense.” (Maj. opn., ante, at p. 1011.) This statement generates colorful rhetoric but only the vaguest legal rule. We can imagine how perplexed jurors would be if the court instructed them according to that concept.
“Because the proceeding on the enhancement, although not intrinsic to the question of guilt or innocence, had the ‘ “hallmarks of a trial on guilt or innocence” ’ ... the state was required to prove the enhancement allegations beyond a reasonable doubt . . . .” (People v. Santamaria (1994)