People v. TorresPeople v. Torres
On appeal, defendant contends: (1) the evidence was insufficient to support the great bodily injury enhancement as to the robbery count; (2) the trial court abused its discretion in admitting irrelevant and prejudicial evidence; (3) the prosecutor committed misconduct during closing argument; (4) the trial court improperly imposed a life term for sexual battery by restraint; (5) the trial court improperly imposed consecutive sentences for the digital penetration convictions; and (6) the trial court erred in failing to stay the sentence on the sexual battery conviction.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II. A–C.
I. BACKGROUND
In the spring of 2014, then 19-year-old Jane Doe participated in a cultural night production at the college she was attending. Afterwards, she attended a cast party at a restaurant and stayed until between 11:30 p.m. and midnight. She left in her car by herself and drove to her apartment. Unbeknownst to Doe, defendant, also in a car, followed her home from the restaurant.
After Doe parked and began walking towards her apartment, she heard running behind her and “was struck in the back of [her] head.” She felt pain and “blacked out for a couple of seconds.” When she opened her eyes, she was face down on the ground.
Defendant was on top of and behind her in “sort of like in a spooning type of position,” and was grabbing her breast. His hand covered her mouth, and he said, “Give me your bag, and everything will be okay,” and “Don‘t scream or I‘ll shoot you.” He then took Doe‘s purse off her shoulder and put it behind him, and began to touch her. He reached under her shirt and bra and touched her breast, and pulled her jeans down to her
A witness who was at the apartment complex to pick up his girlfriend saw defendant struggling on the ground with a woman. Defendant then ran past him, got into a vehicle, and drove off.
Once Doe heard defendant‘s footsteps retreating, she got up and went to her apartment, and then went to her landlord‘s room and told her what had happened. The two woke up Doe‘s other roommate (the landlord‘s daughter) who called the police. When the police arrived, Doe provided a statement and accompanied them to the hospital. There, staff performed a sexual assault rape trauma examination. Doe told the physician‘s assistant who performed the exam that she had been “‘[s]truck in [the] back of [the] head with [the] assailant‘s forearm‘” and thought the defendant had a gun but did not see one. Doe stated she had pain in her left hand and forearm, as well as her right knee and elbow. She suffered multiple superficial abrasions, including an abrasion on the “external genitalia area,” as well as tenderness to the posterior fourchette. The examiner stated the findings she made during the examination were consistent with the history Doe provided.
After the examination, Doe gave another statement to the police. She did not mention that she had “blacked out or that [she was] unconscious,” but did in a statement she gave later in August. She also told her roommate that she “lost consciousness for a quick second.”
The next morning, Doe cancelled her credit and debit cards and shared her account information with police. Her credit card company then released a fraud report to law enforcement, which showed that her credit card had been used in an attempt to make a purchase the day after the assault.
Multiple store surveillance cameras along the route Doe had taken to her apartment showed a car matching defendant‘s following behind.
Defendant was then arrested and his vehicle towed and searched. Officers found Doe‘s Mickey Mouse watch, a women‘s cosmetic powder puff, and a package of Rhino 7 pills, a sexual stamina enhancement. Police also seized defendant‘s cell phone and found pictures of Doe from her Facebook account, which defendant had saved to his cell phone the day after the assault. Detectives also took buccal swabs and fingernail swabs.
Steven Crotti, an expert in the area of “[f]orensic DNA analysis,” testified he combined cuttings from two areas, which is common practice, and after traditional DNA typing failed, he forwarded the samples for Y-STR testing. Angela Meyers, also an expert in the area of “forensic DNA analysis,” testified the Y-STR testing showed there were two male contributors to the sperm found in Doe‘s underwear. This included defendant‘s halotype, which is the same for all males in defendant‘s line.
A clerk from a nearby store recognized defendant from his prior purchases of Rhino 7 pills. The clerk testified defendant came into the store and tried to make another purchase of the pills with Doe‘s credit card, but the card was declined. Defendant then tried to purchase the pills with his own card. That was also declined. Finally, he paid for the pills in cash.
In jailhouse recordings, defendant admitted having Doe‘s wallet and asked a relative to remove items from his room and put them in the garage. When asked if any of the allegations were true, defendant replied “Yeah,” but he denied hitting Doe or having a gun. He admitted using her credit cards. He also stated he had gotten Doe‘s pictures
After a preliminary hearing, defendant was charged by information with one count of second degree robbery with an attached great bodily injury enhancement (
II. ANALYSIS
A. The Great Bodily Injury Finding
Defendant contends “the momentary black out Doe suffered as she was stunned by the blow from behind was not a ‘loss of consciousness’ sufficient to sustain a finding of great bodily injury” under section 12022.7.
Section 12022.7 provides in pertinent part: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” (
“‘In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings,
Though section 12022.7, itself, provides no definition of “great bodily injury,” the phrase is “‘“essentially equivalent“‘” to “‘serious bodily injury‘” referred to in section 243, subdivision (f)(4). (People v. Knoller (2007) 41 Cal.4th 139, 143, fn. 2; People v. Wade (2012) 204 Cal.App.4th 1142, 1149–1150; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.)
Section 243, subdivision (f)(4) defines “serious bodily injury” as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness. . . .” Therefore, a victim‘s loss of consciousness, in and of itself, may support a finding of great bodily injury. (See People v. Wade, supra, 204 Cal.App.4th at pp. 1146–1149 [choking victim‘s loss of consciousness was enough to constitute serious bodily injury, even though victim did not know how long she was unconscious and required no medical treatment].)
Defendant acknowledges the equivalency of “great bodily injury” and “serious bodily injury,” but asserts that such injury “must still be a ‘significant or substantial injury‘” and that it “does not mean a simple, momentary ‘black out’ as one is surprised or struck.” However, there is no durational test for loss of consciousness. (See People v. Escobar (1992) 3 Cal.4th 740, 746–747, 750 [noting there is no particular standard for severity in section 12022.7]; People v. Le (2006) 137 Cal.App.4th 54, 58–59.)
Moreover, “[i]t is well settled that the determination of great bodily injury is essentially a question of fact, not of law,” and thus is a question for the jury. (People v. Escobar, supra, 3 Cal.4th at p. 750.) “‘“If there is sufficient evidence to sustain the jury‘s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.“‘” (Ibid.)
B. Admission of the Rhino7 Packaging
Defendant moved in limine to exclude evidence of the “description and . . . characterization of the pills as more prejudicial than probative,” claiming the evidence was inflammatory and only incidentally relevant because any inference that defendant was in possession of Doe‘s credit card could be obtained through other means (e.g., the surveillance video of defendant making the purchase).
In allowing the evidence, the trial court stated: “This is part of what the witness saw, the witness indicated. This is alleged to have been what the defendant is doing exactly. It does, as indicated previously, tie this defendant to the use of credit cards by the complaining witness; ergo, showing that this would have been defendant doing this, and the prior purchase of such may certainly substantially indicate, as a probative matter, intent with respect to engaging in sexual intercourse, whatever the time may be. Therefore, I‘m going to allow it because I don‘t find that the prejudicial effect is outweighed by the probative value []. I don‘t find that it is going to confuse the issues or it is going to unduly consume time in this case or mislead anyone.” The court noted the relevance of the evidence in terms of identity, stating “I don‘t know if this is an I.D. case or not, but there is a circumstantial inference” of identification in that defendant attempted to buy the pills with Jane Doe‘s credit card and then had “something that looks exactly like [those pills] found in his car.” (Italics omitted.)
The court also believed the packaging (which read “words to the effect,” that the pills “maximize the time of intercourse, experience rock-hard erections, maximize sexual confidence, free from pre ejaculation, better ejaculation control, NO limits“) was relevant in terms of intent. The court stated, “In my view, you don‘t have to have some expert come in and testify about whether these pills actually do what they are representing. . . . The issue is: Is this what‘s purchased? [I]s this what‘s stated on the box, because that‘s
On appeal, defendant contends intent was not an issue at all, and the “adult-oriented” packaging material of the Rhino 7 pills was not relevant to his identity and was more prejudicial than probative as it only served “to elicit emotional bias from jurors.” The Attorney General does not assert that the packaging was relevant to intent, but does maintain it was relevant to identifying defendant as the perpetrator, it was not unduly prejudicial, and its admission did not, in any case, constitute prejudicial error.
“’ [A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative (see
There is no question that defendant‘s purchase of the Rhino 7 pills with Doe‘s credit card was relevant to identity. However, there was other substantial evidence tying defendant to Doe‘s possessions and, in particular, there was other evidence of his possession of and unsuccessful use of Doe‘s credit card. There is also no question that the packaging touting Rhino 7 as a sexual enhancement product, in and of itself, was not relevant to identity and it could have triggered irrelevant reactions on the part of jurors. Accordingly, whether admission of the Rhino 7 packaging, itself, was an abuse of discretion is a close call.
However, we need not, and do not, determine whether the trial court abused its discretion, since even if it did so, the error was not prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. Indeed, the evidence of defendant‘s guilt was overwhelming. There was significant video footage showing a vehicle like defendant‘s following Doe to her apartment. The apartment security video showed an individual fitting defendant‘s
C. The Prosecutor‘s Final Closing Argument
During the examination of forensic analyst Steven Crotti, the prosecution asked if any private investigators had asked to perform a separate analysis. Defense counsel objected, and the trial court sustained the objection. Similarly, during Angela Meyers testimony, the prosecution asked “And so if anyone had a question about your results, they could request testing be done by another lab to verify that?” Defense counsel once again objected, and outside the presence of the jury counsel stated she “want[ed] to make a record regarding the line of questioning that has come up both with Mr. Crotti and Ms. Meyers. . . . [¶] The Prosecutor is, I believe, eliciting from the witnesses information that she will argue in closing argument as to the ability of the defense to test evidence. I believe one, that it is misconduct; two, it is burden shifting. It should be excluded.” The prosecution responded that “Counsel made it clear from their opening statement that their intent was to attack the DNA in this case, and it is fair to ask about whether it‘s fair if somebody foresees a problem with the DNA [] analysis that was done in this case, whether or not there remains DNA that could also be tested or whether or not their data could also be reviewed.”
The trial court ruled there was no burden-shifting or misconduct, as “[s]imply, in my view, the questions which really are truthful: Was there any DNA remaining, and was that sufficient to retest if one wanted to retest? That can go to the D.A., that can go to the defense.” The court noted that this line of questioning is a “very different argument” than “Look, they could have tested if they wanted to, we did.” The court then warned “I‘m not sure what your . . . closing argument may be, but certainly not in the case in chief that should not be brought up or mentioned. There is an area of law that
The prosecutor responded, “Well, your Honor, I am completely aware of what the rules are and what the case law is about what I can and cannot argue. [¶] . . . [¶] So I do think it‘s not proper for the Court to try to preemptively tell me I have to run my rebuttal arguments by the Court or Defense Counsel. We don‘t even know what Defense Counsel is going to argue yet. So I think this entire discussion is premature.” The court reiterated that it was “not trying to hand tie either one of you with respect to any of your arguments that are reasonably based on the evidence (sic). [¶] But because she has argued it in the way she‘s argued it, meaning [defense counsel], that if, in fact, there is a burden shifting in this case, based on the statements, you know, that‘s the kind of area that we don‘t want to have to unring the bell. We want to know if there is something there, and that way I can make a ruling, we can all three make a record of everything.” The court then reaffirmed that there had been no misconduct or burden shifting, and that “Fundamental fairness is still maintained in this matter by what has been stated and what is on the record,” and brought the jury back in to continue argument.
During final closing argument, the prosecutor stated: “Now, the defense does not have the burden in this case. I have the full burden to prove the charges to you. They don‘t have to present any evidence, there is no requirement. The burden is entirely on me. So they don‘t have to put on evidence. [¶] But if there was some glaring obvious problem with this evidence, this woman [defense counsel] is a smart lawyer, she‘s a good lawyer, she could have brought somebody in here to either look at the criminalist notes or retest the DNA. They‘re not required to do that.”
Defendant objected on the ground of burden shifting.
In People v. Cook (2006) 39 Cal.4th 566, 607 (Cook), the defendant maintained the prosecutor impermissibly sought to shift the burden of proof when, during a series of questions to a criminalist, the prosecutor asked if defense counsel “could have subjected the autopsy bullets to its own testing by an independent laboratory.” The court noted the “prosecutor did not ask whether the defense had a duty to do independent testing, [but] merely whether the defense had an opportunity to do so.” (Id. at p. 607.) The court held, “Pointing out that contested physical evidence could be retested did not shift the burden of proof.” (Ibid.)
The defendant in Cook also asserted comments the prosecutor made during closing argument constituted prosecutorial misconduct and impermissibly shifted the burden of proof. (Cook, supra, 39 Cal.4th at p. 607.) “In response to the defense theory that two different guns were used” in the killings, the prosecutor said “‘So where is the second gun? The defense can call criminalists. . . . They can; they don‘t. [¶] It‘s a lot easier to sit up here and try to sort of slant the truth for you all hoping to somehow hoodwink one of you perhaps, hang this case.‘” (Ibid.) The defendant objected and the trial court admonished the jury that the prosecution had the burden of proof. (Id. at pp. 607–608.) The Supreme Court held “A prosecutor may make fair comment on the state of the
Here, too, the prosecutor was essentially commenting on the state of the evidence and defendant‘s failure to call logical witnesses. In fact, during the defense closing, counsel had argued: “We also know that getting to that haplotype in the first place is a little bit questionable. [¶] Steven Crotti talked to us and said that because he had so little DNA to work with, he actually ended up combining two different samples together so that they could be tested as one. . . . [¶] And what we ended up with at the end of the day was an analysis that yielded DNA from more than one donor, a mysterious donor that the Prosecution suggests that we should just disregard in this case. [¶] . . . Nothing to explain those extra alleles that were seen when they did the analysis of the Y-STR.” It was not beyond the pale for the prosecutor, in final closing, to defend the DNA evidence and point out that defendant had not presented any contrary DNA or expert evidence.
But, again, we need not, and do not, decide whether the prosecutor actually transgressed the bounds of proper argument, as defendant cannot show any prejudice from the asserted transgression. The prosecutor repeatedly acknowledged to the jury that she bore the burden of proof and the defendant had no burden of proof. The trial court promptly addressed defendant‘s objection. It then sustained defendant‘s objection and explicitly admonished the jury, ameliorating any conceivable prejudice from the prosecutor‘s comment.3 (See People v. Riggs (2008) 44 Cal.4th 248, 299 [concluding even if prosecutor had committed misconduct, given that the jury was admonished and
D. The Life Term for Sexual Battery by Restraint
The jury convicted defendant of sexual battery by restraint (
“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12 . . . (hereafter the Act). The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (
The crux of defendant‘s challenge on appeal is that count 6 (sexual battery by restraint) is not a serious or violent felony and, thus, is not an automatically disqualifying offense and the People did not adequately plead and prove what would make it a disqualifying offense (i.e., mandatory sex offender registration under section 290). Since the People failed to give him the purportedly required notice “of an intent to seek to exempt the Section 243.4(a) violation from Proposition 36,” then his “strike priors” qualify him “for only a doubling of the term otherwise imposed . . . not a life term.”
Defendant acknowledges the information and amended information gave “notice” that a conviction on count 6 would require registration under section 290. (Capitalization
Mancebo, supra, 27 Cal.4th 735, involved the imposition of a multiple victim enhancement that was not pleaded in the information. The information alleged two circumstances, gun use and kidnapping, and the gun-use circumstance was specifically pleaded. After a jury convicted the defendant of multiple violent sex offenses against two different victims, and despite the fact that “[n]either the original nor amended information ever alleged a multiple victim circumstance” under
The high court focused on the language of section 667.61, subdivisions (i) and (f). The court explained: The “plain wording of subdivisions (f) and (i) of section 667.61 together controls here. Subdivision (i) requires that ‘[f]or the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.’ (Italics added.) Neither the original nor the amended information ever alleged a multiple victim circumstance under subdivision (e)(5). Substitution of that unpleaded circumstance for the first time at sentencing as a basis for imposing the indeterminate terms violated the explicit provisions of the One Strike law. [¶] Moreover, subdivision (f) of section 667.61 provides, in pertinent part, that ‘If only the minimum number of circumstances specified in subdivision (d) or (e)
Here, the plain language of section 1170.12, subdivision (c)(2)(C)(ii) states that if the prosecution “pleads and proves” that the “current offense is a felony sex offense . . . that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290,” then Proposition 36 is inapplicable. Both the information and the amended information gave “notice” that a conviction of sexual battery (count 6) was a conviction for which section 290 registration would be required. In other words, by its plain terms, section 1170.12 only requires the prosecution to plead and prove the current offense is one as to which section 290 registration is required. Despite defendant‘s contention that the pleadings did not give him specific notice that the prosecution would seek to exempt count 6 from Proposition 36, there is nothing in the statute that requires that section 1170.12, itself, be specifically pleaded to trigger exemption from Proposition 36.
We also observe that the Supreme Court expressly warned against applying its holding in Mancebo to other statutes—“We caution that our holding is limited to a construction of the language of section 667.61, subdivisions (f) and (i), read together, as controlling here. We have no occasion in this case to interpret other statutory provisions not directly before us.” (Mancebo, supra, 27 Cal.4th at p. 745, fn. 5.)
We therefore conclude the information and amended information—which expressly pled that a conviction of sexual battery (count 6) would require section 290 registration —was sufficient under Proposition 36.
E. Consecutive Sentencing on the Digital Penetration Convictions
Defendant contends that to impose consecutive sentences on the digital penetration convictions, the trial court was required to determine whether, under section 667.6, subdivision (d), these sex crimes occurred on “separate occasions” as defined by that statute. (
To provide context, we summarize the sentencing proceedings. Defendant filed a Romero4 motion inviting the trial court to dismiss his strike priors for sentencing purposes. He also maintained that under section 667.6, subdivision (d) the court should not impose consecutive sentences on the penetration and rape convictions because the evidence did not establish that they occurred “on separate occasions” as defined by that statute—that is, the evidence did not establish that he had a “reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.” (
The prosecution opposed defendant‘s Romero motion and urged that defendant be sentenced as a three strikes offender. It also took the position that “under . . . [s]ections 667(e)(6) and 1170.12(a)(6)“—that is, under the Three Strikes law—the trial court “must impose consecutive 25 to Life sentences for each of the offenses.” The prosecution also offered its view on consecutive and concurrent sentences, apparently to have some say on the issue if the court concluded section 667.6, subdivision (d) applied. Since defendant took the victim‘s purse before commencing the sexual assault, the prosecutor maintained “the court should impose a consecutive sentence to the subsequent sex offenses.” As for the pre-rape penetration offenses, the prosecutor stated: “It is unclear whether during the commission of Counts 2 through 6, the Defendant had an opportunity to reflect upon his behavior in between acts. It is the People‘s position that the court should therefore run those counts concurrent to each other. In other words, the court should impose a consecutive sentence to Count 1 for Count 2, but run the sentences for counts 3 through 6 concurrent to the sentence for Count 2.” “However,” noted the prosecution, “given that [penetration] is an enumerated offense under Penal Code Section 667.6(d) the Court is well within its right to sentence the Defendant consecutively on counts three through five should it so choose.” As for count 7 (the rape) and count 8 (the post-rape digital
The trial court struck only one of defendant‘s prior strikes. It next recognized that section 667.6, subdivision (d), mandates consecutive sentences for enumerated sex crimes against a single victim on “separate occasions,” thus requiring a court to determine whether the defendant had a reasonable opportunity to reflect on his acts and nevertheless resumed sexually assaultive behavior. But, said the court, it intended to sentence defendant “under the Three Strikes sentencing scheme.” Therefore, sentencing was “not being made pursuant to
We now turn to whether consecutive sentences for the digital penetration convictions were required under the Three Strikes law. This law is set forth in two statutes, sections 667, subdivisions (b)–(j) and 1170.12. Section 667, subdivisions (b)–(j) is the legislative version of the law, which became operative in March 1994. Section 1170.12 is the initiative version, which was enacted by the voters and became operative in November 1994. (People v. Lawrence (2000) 24 Cal.4th 219, 222, fn. 1 (Lawrence).) In many respects, the two statutes are “‘virtually identical.‘” (Ibid.; see People v. Hazelton (1996) 14 Cal.4th 101, 110–111 (conc. opn. of Mosk, J.) [recounting the legislative history of the two statutes].)
“Both versions of the statute were substantially revised by Proposition 36, enacted by the voters on November 6, 2012. . . .” (Couzens & Bigelow, Sentencing Cal. Crimes
Defendant and the Attorney General have divergent views as to the effect of this change of language on the power of the courts to impose concurrent, rather than consecutive, sentences for multiple serious and/or violent felony convictions. Defendant maintains Proposition 36 did not alter the Supreme Court‘s holding in Hendrix, supra, 16 Cal.4th 508, that under the Three Strikes law, trial courts have discretion to impose concurrent sentences for multiple serious or violent felonies against a single victim if they were committed on the “same occasion” or arose from the “same set of operative facts.” The Attorney General maintains Proposition 36 removed this discretion and, thus, effectively overruled Hendrix. According to the Attorney General, trial courts must now impose consecutive sentences for all current multiple serious or violent felony convictions, whether or not these crimes occurred on the “same occasion” or arose from the “same set of operative facts.”5
We conclude the change Proposition 36 made to section 1170.12, subdivision (a)(7) does not, in large measure, alter the Three Strikes sentencing principles the Supreme Court set forth in Hendrix.
In Hendrix, the high court addressed whether, under section 667, subdivisions (c)(6) and (7), a trial court has discretion to impose concurrent sentences in cases where “‘there is a current conviction for more than one serious or violent felony.‘” (Hendrix, supra, 16 Cal.4th at p. 512, fn. 4, quoting
The court next considered the language of section 667, subdivision (c)(7), which provides: “‘If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.‘” (Hendrix, supra, 16 Cal.4th at p. 513, quoting
The court hastened to further explain why its reading of section 667, subdivision (c)(7) did not render it “duplicative” of subdivision (c)(6), given that subdivision (c)(6) applies to “any current felony not committed on the same occasion, and not arising from the same set of operative facts” and thus already includes multiple serious and violent felonies. (Hendrix, supra, 16 Cal.4th at p. 513.) What section 667, subdivision (c)(7) adds in connection with serious or violent felonies, the court reiterated, is that the courts must also impose the consecutive sentences for such felonies “‘consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.‘” (Hendrix, at p. 514, quoting
Given the plain language of the statutes, Justice Mosk observed in his concurrence that “section 667(c)(6) and (7) show themselves to state two rules—a general one, for all felonies ‘not committed on the same occasion, and not arising from the same set of operative facts’ (
The Supreme Court reiterated these Three Strike sentencing principles in Deloza in holding that the analysis used to determine if multiple punishment is permitted under section 654 is not the analysis courts are to employ in determining whether a felony was “‘not committed on the same occasion‘” or did “‘not aris[e] from the same set of operative facts‘” for purposes of section 667, subdivision (c)(6) and section 1170.12, subdivision (a)(6).6 (Deloza, supra, 18 Cal.4th at pp. 590–591 [in Hendrix, the court “concluded that section 667, subdivision (c)(6), applies to any current felony conviction“; and under subdivision (c)(7) “‘not only must the court impose the sentences for these serious or violent offenses consecutive to each other, it must also impose these sentences “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law,”‘” (italics added)].) The court reiterated these sentencing principles again in Lawrence, supra, 24 Cal.4th at pages 222–223, in which it further elaborated on the meaning of “‘same occasion‘” and “‘same set of operative facts‘” as used in sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6). It also observed that requiring “consecutive sentences for those current crimes committed on different occasions is consistent with the focus of the three strikes law, which is recidivism.” (Lawrence, at p. 226.)
Proposition 36 made the following changes to the language of section 1170.12, subdivision (a)(7), which we set forth along with subdivision (a)(6), for context:
“(a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has
“(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.
“(7) If there is a current conviction for more than one serious or violent felony as described in
paragraph (6) of thissubdivision (b), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.” (§ 1170.12, subd. (a)(6) &(7) , as amended by Prop. 36, § 4, eff. Nov. 6, 2012, boldface and strike through added.)
Thus, no change was made to the language of section 1170.12, subdivision (a)(6). Accordingly, this subdivision continues to apply to any current felony convictions (including serious and/or violent felonies) and requires consecutive sentencing where the felonies (including serious and/or violent felonies) were not committed on “‘the same occasion‘” or did not arise from “‘the same set of operative facts.‘” (Hendrix, supra, 16 Cal.4th at p. 512.) The courts also retain discretion to impose concurrent sentences for felonies (including serious and/or violent felonies) committed on the same occasion or arising from the same set of operative facts. (Id. at pp. 513–514.)
As for section 1170.12, subdivision (a)(7), Proposition 36 replaced the reference to “paragraph (6)” with a reference to “subdivision (b),” which, as we have noted, defines serious and/or violent felonies for purposes of the Three Strikes law. Thus, Proposition 36 changed the triggering language of the subdivision, and subdivision (a)(7) now applies not only when serious or violent felonies were not committed on the same
In short, the change to section 1170.12, subdivision (a)(7) made by Proposition 36 impacts only the additional requirement for consecutive sentencing of “other” current offenses (namely, nonserious and/or violent felonies and misdemeanor offenses). To paraphrase Justice Mosk, subdivisions (a)(6) and (7) continue to “show themselves to state two rules” in a Three Strikes case8—“a general one, for all felonies ‘not committed on the same occasion, and not arising from the same set of operative facts‘” (
To this extent, both parties correctly state there is now a “conflict” between the legislative version of the Three Strikes law (
Accordingly, the trial court erred in concluding it had no discretion whatsoever under the Three Strikes law to impose concurrent sentences, and we therefore reverse and remand for resentencing on the digital penetration convictions.
On remand, the court first must determine whether the digital penetration crimes (which are violent felonies under
The court must therefore next consider, in connection with the digital penetration convictions, whether consecutive sentences are mandatory under section 667.6, subdivision (d). And in making that determination, the court must apply the definition of “separate occasions” set forth in that statute. Thus, even if the court determines the sexual penetration crimes were committed on “the same occasion” or arose from the “same set of operative facts” for purposes of section 1170.12, subdivision (a)(6), if the court further determines these crimes occurred on “separate occasions” for purposes of section 667.6, subdivision (d), consecutive sentencing is required under that statute and, in turn, under the Three Strikes law. If the court determines these sex crimes did not occur on “separate occasions” under section 667.6, subdivision (d), the court has the discretion to impose concurrent sentences.
Because all of the felonies of which defendant was convicted are serious and/or violent felonies, there are no “other” nonserious and/or violent felonies or misdemeanors triggering the additional consecutive sentencing mandate set forth in section 1170.12, subdivision (a)(7) pursuant to Proposition 36. We note, for illustrative purposes, that had
F. Staying Sentence Under Section 654
Defendant also contends the trial court, pursuant to section 654, should have stayed his sentence on count 6 (sexual battery by restraint) because, according to defendant, that conduct was not severable from the digital penetration and rape conduct. His argument is not entirely clear, but appears predicated on the claim that, while his sexual battery by restraint conviction does not fall within section 667.6, subdivision (d), it does fall within section 667.6, subdivision (c), which allows, but does not require, a trial court to impose consecutive sentences for specified sex crimes involving the “same victim on the same occasion.” (
For the reasons we have discussed in the preceding section of this opinion, we remand on this count, as well, for the trial court to consider both the issue of consecutive sentencing and whether the sentence for the sexual battery by restraint conviction should be stayed under section 654.
Sexual battery by restraint (
Whether the sentence for the sexual battery by restraint conviction must be stayed under section 654 is an entirely different issue. (See Deloza, supra, 18 Cal.4th at p. 594.) It is also an issue that, as far as we can determine from the record, was not addressed by the trial court. Accordingly, in addition to determining whether the sentence for this crime must run consecutively or whether the court has discretion to order the sentence to run concurrently, the court must also determine on remand whether the sentence must be stayed under section 654.
III. DISPOSITION
The judgment is affirmed in part and reversed in part. We reverse the consecutive sentences for the digital penetration convictions and the sexual battery by restraint conviction and remand for further sentencing proceedings consistent with this opinion. We otherwise affirm the judgment.
Banke, J.
We concur:
Humes, P.J.
Dondero, J.
A146958, People v. Torres
Trial Judge: Hon. Gloria Rhynes
Counsel:
Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Rene A. Chacon and Julia Y. Je, Deputy Attorneys General for Plaintiff and Respondent.