Opinion
Appellant Michael Rodriguez challenges his convictions for kidnapping during a carjacking, robbery, and several sexual offenses. He maintains that the prosecution engaged in misconduct and that the trial court erred in imposing sentence. In the unpublished portion of this opinion, we hold that appellant has failed to establish prosecutorial misconduct. In the published portion of the opinion, we conclude that the trial court erred in sentencing appellant under former subdivision (g) of the “One Strike” law (Pen. Code, § 667.61), which limited the imposition of One Strike terms on multiple sex offenses committed on a single occasion.
RELEVANT PROCEDURAL BACKGROUND
On November 4, 2010, an amended information was filed charging appellant with kidnapping during a carjacking (§ 209.5, subd. (a); count 1), robbery (§211; count 2), sexual penetration by a foreign object (§289, subd. (a)(1); counts 3, 6, and 8), forcible rape (§ 261, subd. (a)(2); counts 4 and 5), forcible oral copulation (§ 288a, subd. (c)(2); count 7), and attempted sodomy by use of force (§§ 286, subd. (c)(2), 664; count 11). Accompanying the charges—excluding the count for kidnapping during a carjacking—were allegations that appellant personally used a knife (§ 12022, subd. (b)(2)). In addition, accompanying the charged sexual offenses (counts 3-8 and 11) were allegations that appellant was subject to sentencing under the One Strike law (§ 667.61, subds. (a), (e)). Appellant pleaded not guilty to all the counts and denied the special allegations.
A jury found appellant guilty as charged, and found the special allegations to be true. The trial court sentenced appellant to a term of 80 years to life, plus a consecutive term of life.
FACTUAL BACKGROUND
A. Prosecution Evidence
At approximately 8:30 p.m. on May 3, 2009, Jessica M. left the Shakey’s restaurant at which she worked and drove to the Vallaría store near Sherman Way and Vineland, where she bought some food. After she reentered her parked car, appellant asked for a ride, stating that he had been “jumped [by] gang members.” Jessica agreed to help appellant. As the pair drove toward Vineland and Victory, Jessica permitted appellant to use her cell phone because he said his cell phone was dead.
After making a phone call, appellant said to Jessica, “This is a kidnap,” displayed a knife with a four-or five-inch blade, and ordered her to drive toward Newhall. As she did so, appellant took money from Jessica’s purse.
At appellant’s direction, Jessica stopped in a deserted shopping center parking lot in Newhall. After she parked, he sexually assaulted and raped her, forced her to copulate him orally, and attempted to sodomize her. He then ordered her to leave the car. According to Jessica, as she retrieved her work shirt bearing the “Shakey’s” logo, appellant laughed sarcastically and said, “Oh, you work there.”
After Jessica left the car, appellant drove away, taking with him her money and cell phone. Jessica ran to a nearby restaurant and made a 911 call. Investigating officers took Jessica to a hospital, where she was examined by Sandra Wilkinson, a sexual assault nurse.
When Jessica failed to come home, her parents and sister Veronica became alarmed. Veronica repeatedly tried to phone Jessica, but contacted only Jessica’s voice mail. At approximately 1:15 a.m., a man answered Jessica’s cell phone, described himself as Jessica’s boyfriend, and said that Jessica was asleep. When Veronica requested Jessica’s location, the man laughed and replied that he was in Palmdale. After the call ended, Veronica and her mother learned from police officers that Jessica had been taken to a hospital.
On June 3, 2009, investigating officers found Jessica’s car in Sun Valley, where it appeared to have been parked for a long period. Later, on June 5, 2009, Jessica saw appellant on a sidewalk as she drove in Sunland. Jessica contacted the police and watched him enter a library. Police officers soon arrived and arrested appellant.
While interviewing appellant, Los Angeles Police Department detectives told him that Jessica’s cell phone had been used to place a call to appellant’s own cell phone. Following this disclosure, appellant admitted that he had robbed Jessica and taken her car while she was in it. He also admitted that he had touched her breasts, but denied raping her.
B. Defense Evidence
Cari Caruso, a sexual assault examiner, testified that a copy of a photograph that Wilkinson had taken of Jessica’s injuries showed no injuries or
C. Rebuttal
Marilyn Stotts, a sexual assault nurse, testified that in order to assess potential injuries from a sexual assault, it was preferable to conduct a physical examination of the victim, rather than to rely solely on photographs of the victim.
DISCUSSION
Appellant contends there was prosecutorial misconduct and sentencing error. We reject appellant’s challenges, with the exception of certain contentions regarding his sentence.
A. Prosecutorial Misconduct
B. Sentencing
Appellant challenges his sentence on several grounds. As explained below, we conclude the trial court erred in imposing sentence.
In sentencing appellant, the trial court identified appellant’s conviction for forcible rape (§ 261, subd. (a)(2)) under count 4 as the principal term, and imposed the high term of eight years. In addition, the court imposed a 25-year-to-life “enhancement” on count 4 under the One Strike law (§ 667.61), as well as a three-year enhancement for use of a deadly weapon (§ 12022, subd. (b)(2)). The court imposed consecutive high-term sentences of eight years on each of appellant’s remaining convictions for sexual offenses (sexual penetration by a foreign object (§ 289, subd. (a)(1)); counts 3, 6, and 8), forcible rape (§ 261, subd. (a)(2)); count 5), and forcible oral copulation (288a, subd. (c)(2)); count 7)), with the exception of his conviction under count 11 for attempted sodomy, on which it imposed a three-year term. Regarding appellant’s other convictions, the court imposed a consecutive one-year term for robbery (§ 211; count 2), and a consecutive life term for kidnapping during a carjacking (§ 209.5, subd. (a); count 1).
1. Governing Principles
Appellant was convicted of offenses under the One Strike law (§ 667.61), which authorizes the imposition of indeterminate terms; additionally he was convicted of other offenses punishable by determinate terms.
Here, appellant’s convictions for sexual penetration by a foreign object (§ 289, subd. (a)(1); counts 3, 6, and 8), forcible rape (§ 261, subd. (a)(2); counts 4 and 5), and forcible oral copulation (§ 288a, subd. (c)(2); count 7) are potentially subject to indeterminate terms under the One Strike law, which “sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force, including rape, foreign object penetration, sodomy, and oral copulation.” (People v. Mancebo (2002)
To the extent appellant’s remaining offenses are subject to determinate terms, section 1170.1 establishes the “sentencing protocol” for offenses with determinate terms (People v. Neely, supra,
Sex crimes are treated differently. (People v. Pelayo, supra,
2. One Strike Sentencing
At the outset, we observe that our independent review of the record disclosed a sentencing error not raised by the parties in their original briefs. Notwithstanding the parties’ failure to address the issue, “[w]e may set aside an unauthorized sentence so a proper sentence may be imposed, even if the new sentence is harsher.” (People v. Delgado (2010)
Before September 2006, the One Strike law contained former subdivision (g), which stated that a One Strike sentence “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” (Former § 667.61, subd. (g), italics added.) If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. “Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Former § 667.61, subd. (g), italics added.) In People v. Jones (2001)
In determining appellant’s sentence, the court relied on section 667.61, former subdivision (g). Following a discussion of Jones and other case authority regarding former subdivision (g), the court found that all of the sex offenses were committed against a single victim on a single occasion, relying on the factors for determining whether crimes occurred on a single occasion, as identified in section 667.6, subdivision (d). The court then imposed a
However, in September 2006, prior to appellant’s offenses in 2009, the Legislature amended the One Strike law to eliminate section 667.61, former subdivision (g) (Stats. 2006, ch. 337, § 33, pp. 2165-2167), and the version of the One Strike law applicable to appellant’s offenses does not contain it. The sole provision relevant to the sentencing of multiple offenses under the applicable One Strike law is section 667.61, subdivision (i), which states that “the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.”
As no published decision has examined the import of the amendment that eliminated section 667.61, former subdivision (g) from the One Strike law, we confront a question of statutory interpretation. “ ‘In construing a statute, our task is to determine the Legislature’s intent and purpose for the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said. [Citation.]’ ” (People v. Palmer (2005)
Our conclusion finds additional support from the Legislature’s amendments to the statute. Generally, “when ... the Legislature undertakes to amend a statute which has been the subject of judicial construction[,] . . . and . . . substantial changes are made in the statutory language[,] it is usually inferred that the lawmakers intended to alter the law in those particulars affected by such changes.” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978)
Because the applicable version of the One Strike law mandated the imposition of a 25-year-to-life sentence on each of appellant’s eligible offenses, the matter must reversed for resentencing. In view of the trial court’s finding that all of appellant’s sex offenses occurred on a single occasion against a single victim, the court has the discretion to impose consecutive or concurrent One Strike sentences on the eligible offenses. (People v. Valdez (2011)
3. One Strike “Enhancement”
Appellant contends the trial court erred in imposing the One Strike sentence on count 4 as an enhancement on an eight-year high term, rather than as the principal term. We agree, as does respondent. Because the One Strike law constitutes a separate sentencing scheme for offenses within its scope, punishment for such offenses is not subject to other sentencing schemes, except where the One Strike law so provides. (See People v. Fuller (2006)
4. Enhancement for Personal Use of a Deadly Weapon
Appellant contends the trial court erred in imposing a three-year enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)) on count 4. Respondent concedes he is correct. As noted above (see pt. B.1. & 2., ante), the court was authorized to impose a 25-year-to-life sentence on count 4 under section 667.61, subdivision (a), part of the applicable One Strike law if at least two special circumstances enumerated in subdivision (e) of the statute were established. Here, the jury found two such circumstances, but one was appellant’s personal use of a knife. As we explain, in such cases, the applicable One Strike law precludes the use of the circumstance to impose additional punishment.
Subdivision (f) of the applicable One Strike law provides: “If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) . . . to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) . . . , rather than being used to impose the punishment authorized under any other
As explained in Mancebo, section 667.61, subdivision (f), part of the applicable One Strike law bars the use of special circumstances to impose additional punishment when, as here, only the minimal number of circumstances has been pleaded and established for purposes of sentencing under the One Strike law. (Mancebo, supra,
5. Life Sentence for Kidnapping During a Carjacking (Count 1)
In a related contention, appellant maintains the trial court erred in imposing a life term under count 1 for kidnapping during a carjacking (§ 209.5), as appellant’s One Strike sentence on count 4 effectively relied on this offense. As explained below, we agree.
For purposes of imposing a 25-year-to-life sentence on an offense under section 667.61, subdivision (a), part of the applicable One Strike law, section 667.61, subdivision (e)(1) provides that a special circumstance is established when “the defendant kidnapped the victim of the present offense in violation of Section 207 [(simple kidnapping)], 209 [(kidnapping to
Pointing to People v. Byrd (2011)
In Byrd, the defendant kidnapped two victims. (Byrd, supra,
On appeal, the defendant maintained that section 667.61, subdivision (f), part of the One Strike law, barred additional punishment for simple kidnapping because aggravated kidnapping was the sole qualifying circumstance pleaded and proved at trial. (Byrd, supra, 194 Cal.App.4th at pp. 100-104.) The appellate court rejected this contention, concluding that simple kidnapping falls outside the special circumstance defined in subdivision (d)(2) of
Here, unlike Byrd, the jury found as a special circumstance that appellant had “kidnapped the victim of the present offense in violation of . . . section 207 or 209.5” under section 667.61, subdivision (e)(1), part of the applicable One Strike law.
6. Attempted Sodomy
Appellant contends the trial court erred in imposing a consecutive term of three years under count 11 for attempted sodomy (§§ 286, subd. (c)(2), 664), which amounted to a full consecutive middle term for the offense. He argues the court was obliged to determine the sentence in accordance with the sentencing scheme found in section 1170.1.
We agree that upon remand, the sentence under count 11 must be calculated in accordance with section 1170.1, as attempted sodomy falls within neither the sentencing scheme in section 667.6 nor the One Strike law. It is well established that the offenses enumerated within section 667.6 do not include attempted sex crimes. (People v. Le (1984)
Appellant contends the trial court erred in imposing restitution fines and parole revocation fines. Absent special circumstances, the minimum restitution fine is $200 (§ 1202.4, former subd. (b)(1)); furthermore, parole revocation fines must be set “in the same amount” as restitution fines (§ 1202.45). In sentencing appellant, the trial court stated it was “imposing the mandatory minimum restitution fines as required by state law,” but ordered parole revocation fines “in the amount of $300 per count.” Upon remand, the trial court shall have the opportunity to clarify its orders regarding the fines. (People v. Waldie (2009)
DISPOSITION
The judgment is reversed with respect to appellant’s sentence, and the matter is remanded for resentencing in accordance with this opinion (see pt. B., ante). The judgment is affirmed in all other respects.
Epstein, P. J., and Suzukawa, J., concurred.
Notes
All further statutory citations are to the Penal Code.
In addition, while Jessica drove toward Newhall on a freeway, appellant told her that two accomplices were following them in a car. Later, the car appeared to follow Jessica as she exited the freeway for Newhall.
An audio recording of the interview was played for the jury.
See footnote, ante, page 204.
At our request, the parties have submitted supplemental briefs on this issue.
This portion of section 667.61, subdivision (i) is found in the version of the One Strike law applicable to appellant’s offenses and the current version of the law.
As respondent notes, the trial court, in sentencing appellant under the One Strike law, suggested that appellant had committed the kidnapping for the purpose of rape, even though the jury’s finding under section 667.61, subdivision (e)(1), part of the One Strike law, contained no reference to rape. In view of Mancebo, we limit our inquiry to the allegations that were “properly pled and proved.” (Mancebo, supra,