Opinion
C057142
5-14-2009
THE PEOPLE, Plaintiff and Respondent, v. DAVID LAGUNA, JR., Defendant and Appellant.
Not to be Published
A jury found defendant David Laguna, Jr., guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible sodomy (§ 286, subd. (c)(2)), forcible sexual penetration (§ 289, subd. (a)(1)), dependent adult abuse (§ 368, subd. (b)(1)), criminal threats (§ 422), and felony false imprisonment (§§ 236, 237). The court sentenced defendant to an aggregate term of 19 years four months in state prison and imposed specified fees and fines.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends: (1) insufficient evidence supports the felony false imprisonment conviction; alternatively, assuming the evidence is sufficient, the sentence must be stayed pursuant to section 654; (2) the restitution fines exceed the statutory maximums allowed by law; and (3) the $200 fine and $475 penalty assessment imposed as to counts I and III were unauthorized and must be stricken. We will modify the judgment by reducing the restitution and parole revocation fines to $10,000 each, remand the matter for reimposition of fees, fines, and penalties as to the six counts of conviction, and otherwise affirm the judgment as modified.
FACTS AND PROCEDURAL HISTORY
In 2006, D.V. was a 55-year-old woman suffering from Parkinsons disease and gout causing severe swelling in her legs and feet. She had several rods in her spine as a result of a traumatic injury, and a pacemaker and a defibrillator because of a heart attack she suffered not long after her back surgery. D.V. also suffered from hepatitis C, as well as periodic arrhythmia and seizures, and experienced regular pain in her back from the surgery. She had difficulty walking because of her back surgery and a bone spur in her foot. Unable to drive, she relied on friends to take her shopping and to the doctor. Because of her various disabilities, D.V. slept in a hospital bed in the living room.
D.V. first met defendant on the Internet. The two e-mailed back and forth for approximately six months, eventually discussing the possibility of a romantic relationship. They also discussed the possibility of defendant coming to visit D.V. in person.
On October 18, 2006, D.V. had surgery to reposition her pacemaker. To D.V.s surprise, defendant called two days later and told her he was on his way to see her. That evening, defendant called again to tell D.V. he missed the turnoff and had stopped at a rest stop. He also told D.V. that a highway patrolman had approached him to see if he needed help and asked to search his van. Defendant told her that he "had a gun and he had thought about killing the officer, and that he thought that was a stupid thing to do." Unsure whether defendant was serious or joking, D.V. gave him directions to her home.
Defendant arrived at D.V.s apartment at 2:30 a.m. Saturday morning. He hugged D.V., grabbing her buttocks and squeezing her tight against him, causing pain due to the incision and the drainage bulb from her recent surgery. They sat in the living room and talked. Defendant kept putting his hands in his crotch area and talking about how good sex was going to be. He also discussed the gun, which he said he carried for protection. D.V. told him she was afraid of guns. After several hours, they went to sleep—defendant in one of the bedrooms and D.V. in the hospital bed in the living room.
D.V. had told defendant in their e-mail correspondence that she had not been intimate with anyone in 19 years.
When they awoke, D.V. fixed breakfast and then defendant took D.V. to town to pick up some things from the grocery store. When they returned to the apartment, defendant worked on D.V.s broken back door. After dinner, defendant wanted to watch pornographic movies on television. D.V. said she was not interested in watching porn, telling defendant she would go to her room and he could watch them on his own. Defendant instead worked on D.V.s computer for a while and eventually went to bed.
The next morning, defendant continued to work on the computer. D.V. sat in her recliner in the living room and began feeling nervous and scared. She had made an agreement with her neighbor, Doris, that if things were not going well with defendant, D.V. would indicate so by using a code phrase. However, when Doris came over later that day and D.V. tried to communicate that things were not going well, Doris left without calling for help, apparently oblivious to D.V.s signals. Later that afternoon, D.V.s friends, Joan and Hans, brought some boxes over to the apartment and met defendant.
That evening, D.V. told defendant things were not going well; she was feeling afraid, in part because defendant had repeatedly mentioned his gun. When D.V. told defendant she thought it was time for him to go, defendant said he was not ready to go, and again mentioned his gun.
Defendant went back to working on the computer. As D.V. lay in her bed, she could see defendant, wearing only his undershorts, walking back and forth between bedrooms and masturbating.
The next morning, D.V. awoke to the sound of her alarm clock. Suddenly, defendant appeared in the living room naked and with a partially erect penis. Defendant said, "Nows the time, this is what youve been waiting for." "Im going to give you what you need." He ripped D.V.s pajama bottoms off, grabbed her legs and threw them over his shoulders and put his penis into her vagina. D.V. said, "Just stop it." "Please dont do it, dont do this to me. This is not the way its supposed to happen." D.V. hit defendant to keep him away from her. He became very angry and threatened to sodomize her and put his fist inside her. Next, he pushed her back, climbed on top of her and pinned her down. As he tried to force her mouth open to orally copulate him, he told her she had better not bite him. D.V. clenched down, preventing him from placing his entire penis in her mouth. While he had D.V. pinned down, defendant pulled her bra aside and bit one of her breasts.
Next, defendant grabbed D.V. and flipped her over, shoving her face into the pillow. Her arms were crossed underneath her and she was unable to breathe. As D.V. struggled to free her arms, defendant hit her in the shoulder. Finally able to move her arms, she pulled the pillow away and begged defendant to stop. Defendant threatened to kill her if she screamed or made any sounds, and shoved her body against the bars of the bed, causing her to hit her head on the bars. Defendant pulled her toward him and first stuck his fingers inside her rectum, then proceeded to sodomize her with his penis as she cried out in pain and asked him to stop. He also inserted his fingers in her vagina five or six times. When he finished, he got up and took a shower, then got dressed and went outside. D.V. lay in the bed in pain. When defendant went outside, she went into the bathroom and wiped herself off. Defendant told her to make him some breakfast. When she refused, he made it himself.
Later that morning, defendant made D.V. a drink and told her he had put something alcoholic in it to "calm [her] down because [she] was too uptight." When D.V. protested, defendant demanded that she drink it immediately. D.V. took three sips of the drink and fell asleep. At some point that afternoon, D.V.s friend Joan came over to the apartment to drop off more boxes. When D.V. awoke, she realized she had been asleep for approximately four hours.
A short while later, D.V.s daughter, E.V., and her boyfriend, J.D., arrived at the apartment. They stayed for only a half hour, during which time J.D. talked to defendant in the living room and D.V. talked to E.V. in the bedroom. Although E.V. kept asking D.V. what was wrong, D.V. was afraid to tell her about the assault for fear defendant might shoot them. When her daughter left, D.V. looked at J.D. and mouthed the words, "help me," but J.D. just looked at her and then left. After they left, defendant threatened D.V. not to ever call the police or tell anybody what had happened.
Defendant left the apartment briefly to go to the store, taking the keys with him. D.V. did not call for help because she feared he would return at any minute. D.V. locked and chained the door. When defendant returned, he unlocked the door and started banging on it, telling her he would get metal cutters to cut the chain. D.V. agreed to let him in if he promised not to hurt her anymore.
Later, defendant told D.V. he was going to play pool at the bar around the corner. When D.V. said she could not go because she hurt too much, defendant said, "Im going to go, do not do anything stupid, call anybody, dont do anything." "Remember the gun." "I will use the gun." As soon as defendant left, D.V. frantically called her friend Joan. Fearing defendant might return and find her on the phone, D.V. asked Joan to call the police and to send her husband over. The police arrived at the apartment shortly thereafter. Defendant was arrested at a bar near D.V.s apartment.
Defendant was charged by information with two counts of forcible rape (counts I and II), one count of forcible sodomy (count III), five counts of forcible sexual penetration (counts IV-VIII), one count of dependent adult abuse (count IX), one count of criminal threats (count X), one count of felony false imprisonment (count XI), one count of assault with intent to commit rape (count XII), and one count of misdemeanor theft from a dependent adult (count XIII).
The jury found defendant guilty of counts I, III, IV, IX, X, and XI, deadlocked on count XII, and acquitted on all remaining counts. The court sentenced defendant to consecutive middle terms of six years on counts I, III, and IV, plus a concurrent three-year term on count IX, and consecutive eight-month terms on counts X and XI, for an aggregate prison sentence of 19 years four months, minus 434 days of presentence custody credit. The court imposed fees and fines, including a restitution fine in the amount of $23,196 (§ 1202.4, subd. (b)), a parole revocation fine of $23,196, stayed pending successful completion of parole (§ 1202.45), $675 in sex offender registration fines and penalty assessments (§ 290.3), and $675 in fines and penalty assessments as to each of the six counts. The court found defendant "does not have the ability to pay sodomy fine or rape fine."
The court declared a mistrial as to count XII.
Defendant filed a timely notice of appeal.
DISCUSSION
I
False Imprisonment
Defendant contends there was insufficient evidence to support his conviction for felony false imprisonment on the basis that it was accomplished by menace. Should we find sufficient evidence that D.V. was falsely imprisoned by violence, defendant alternatively contends that the sentence must be stayed pursuant to section 654. We find sufficient evidence of false imprisonment by menace.
In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The record must contain evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Ibid.) Reversal is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) The testimony of one witness, if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)
The jury was correctly instructed that the elements of false imprisonment by violence or menace are: (1) the defendant intentionally and unlawfully restrained, confined, or detained someone and caused that person to be restrained or confined or detained by violence or menace; and (2) the defendant made the other person stay or go somewhere against that persons will. (§§ 236, 237; CALCRIM No. 12.40.) As the jury was also correctly instructed, "menace" means a verbal or physical threat of harm (either express or implied), including use of a deadly weapon, and "violence" means using physical force that is greater than the force reasonably necessary to restrain someone. (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123; People v. Babich (1993) 14 Cal.App.4th 801, 806.)
In People v. Matian (1995) 35 Cal.App.4th 480, the Court of Appeal observed that cases upholding convictions for felony false imprisonment by menace have generally fallen into two categories: those in which a deadly weapon was used or those in which a verbal threat was uttered. (Id. at pp. 485-486.)
Here, defendant told D.V. he was going to a bar around the corner from the apartment to play pool. When D.V. told him she was in pain and unable to go with him, he said, "Im going to go, do not do anything stupid, call anybody, dont do anything." "Remember the gun." "I will use the gun." The evidence establishes an implied, if not express, threat of harm. D.V. was, for all practical purposes, nearly incapacitated because of her numerous serious ailments and disabilities. She was unable to drive or even walk a significant distance without assistance. D.V. did not try to leave the apartment. She called and asked her friend Joan to call the police, too afraid to do it herself because she feared defendant would return at any moment and discover her in the midst of calling for help. The threat that defendant might shoot D.V. was real, regardless of whether or not she ever saw the gun. Not only did defendant mention it during their telephone conversation before ever arriving at D.V.s apartment (stating he thought about shooting a law enforcement officer), he continued to make reference to it throughout the weekend, and particularly when he warned her not to do or say anything while he was gone. While D.V. may have had the ability to unlock the front door and walk outside, she knew defendant had the keys and was only minutes away and could come back and make good on his threat at any time. There is ample evidence of menace to support the felony false imprisonment conviction. (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1513.)
Because we find there is sufficient evidence to support the conviction for felony false imprisonment by menace, we need not address the parties arguments regarding felony false imprisonment by violence. And because we find there is sufficient evidence of false imprisonment arising out of defendants threats against D.V. when he left the apartment to play pool, conduct that was separate and divisible from the sex offenses (People v. Harrison (1989) 48 Cal.3d 321, 335-338), we reject defendants argument that the eight-month sentence imposed for count XI should be stayed pursuant to section 654.
II
Fees and Fines
Defendant contends the trial court imposed restitution and parole revocation fines in excess of the statutory limit. The People agree, and so do we. "The maximum [restitution] fine that may be imposed in a criminal prosecution is $10,000 `regardless of the number of victims or counts involved. [Citation.]" (People v. Ivans (1992) 2 Cal.App.4th 1654, 1667 [decided under Gov. Code, former § 13967 (predecessor statute to Pen. Code, § 1202.4)], quoting People v. Sutton (1989) 212 Cal.App.3d 1254, 1259; accord, People v. Blankenship (1989) 213 Cal.App.3d 992, 999 [same].) We will modify the judgment to reduce the restitution fine (§ 1202.4, subd. (b)) to $ 10,000, and will modify the judgment to reduce the parole revocation fine, stayed pending successful completion of parole (§ 1202.45) to the same amount.
While defendant and the People disagree on the appropriate remedy, they both agree that the trial court erred in its imposition of a $200 fine, plus a penalty assessment of $475, pursuant to section 290.3, as well as its imposition of a $ 200 fine, plus a penalty assessment of $475, presumably pursuant to section 672. The record on this issue is confusing at best. According to the reporters transcript, the court ordered defendant to pay a "fine of $200 together with penalty assessment in the amount of $475 pursuant to Penal Code section 290.3," and at the same time imposed a "$200 fine for each count together with [a] $475 penalty assessment," instructing the clerk to provide a "breakdown on the state prison abstract and the minutes of these proceedings which sets forth the discrete amounts of penalty assessments and their statutory authority." The court also found defendant "does not have the ability to pay sodomy fine or rape fine."
Section 672 provides: "Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($ 1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed."
The courts minute order reflects "a $200 fine plus $475 penalty assessment totalling $675 for each of the 6 counts totalling $ 4,050" pursuant to an attached exhibit, as well as "a $200 fine plus $475 penalty assessment per [Penal Code section] 290.3" pursuant to the same attached exhibit. The attached exhibit sets out the nature and amount of each of the various penalties imposed. The abstract of judgment includes the following: "Pay $200 + penalty assessment totalling $675 for each 6 counts totalling $4,050. Per PC 290.3. Pay $200 + penalty assessment totalling $675."
The parties seem to agree that the statutory basis for the $ 200 fine plus $475 penalty assessment for each of the six counts for which defendant was convicted is section 672. The parties also agree, and rightly so, that section 672 is applicable only when no other fine is prescribed. (§ 672; People v. Breazell (2002) 104 Cal.App.4th 298, 304.) Consequently, section 672 cannot be applied to impose a fine on any count if another statute already prescribes a fine for that count. For instance, section 290.3 prescribes a fine (i.e., $300 for the first conviction and $500 for the second and each subsequent conviction) for any offense specified in section 290, subdivision (c). Here, defendant was convicted of violating sections 261, 286, and 289, all of which are offenses specified in section 290, subdivision (c), and subject to a fine pursuant to section 290.3, therefore prohibiting imposition of a fine under section 672. Similarly, section 264, subdivision (b), and section 286, subdivision (m), prescribe fines for rape and forcible sodomy, respectively. As such, a conviction under either of those provisions would not be subject to a fine under section 672.
The record is unclear regarding the specific fee, fine and/or penalty imposed as to each of the six counts. Further adding to the confusion is the fact that the court found defendant unable to pay a "sodomy fine or rape fine" (presumably referring to fines pursuant to sections 264, subdivision (b) and 286, subdivision (m)), but imposed fines as to counts I and III nonetheless.
Given the confused state of the record, we vacate the $200 fines and $475 penalties imposed pursuant to section 290.3 or otherwise, and remand the matter to the trial court to articulate the fees, fines and penalties imposed as to each count and the statutory basis therefor, bearing in mind that section 672 only applies when no other fine is prescribed by statute. Furthermore, as we explained in People v. High (2004) 119 Cal.App.4th 1192, at page 1200, "[a]lthough we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment." Accordingly, we direct the trial court to prepare an amended abstract of judgment which separately states each and every fee, fine, and/or penalty imposed and the statutory basis therefor.
DISPOSITION
The judgment is hereby modified to reduce the restitution fine to $10,000, and to reduce the parole revocation fine to $ 10,000. The judgment as modified is affirmed. The matter is remanded to the trial court to reimpose fees, fines, and/or penalties with respect to the six counts of conviction and to prepare an amended abstract of judgment as directed in this opinion. The trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
SIMS, Acting P. J.
HULL, J.