Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV34968. Gerard S. Brown, Judge. Affirmed with directions.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant of kidnapping (Pen. Code, § 207) and forcible rape (§ 261, subd. (a)(2)), during both of which he used a knife (§ 12022, subd. (b)(1).) The jury further found, as to the rape, that defendant had kidnapped the victim and her movement substantially increased her risk of harm, he used a deadly or dangerous weapon, and he bound the victim. (§ 667.61, subds. (a) & (d).) He was sentenced to prison for 25 years to life plus 6 years. He appeals claiming the jury was misinstructed, his motion for a mistrial should have been granted, cumulative error requires reversal of his conviction for rape and sentencing error occurred. We reject his contentions and affirm, while directing the trial court to correct an error appearing in the determinate abstract of judgment.
All further references are to the Penal Code unless otherwise indicated.
I.
Facts
The victim testified that around 8:30 p.m. on June 7, 2004, her ex-boyfriend (hereinafter, “the ex-boyfriend�) came to her home in Corona and was talking to her on her front porch when defendant approached her, grabbed her, put his hand over her mouth, put a knife to her back and told her to shut up. The ex-boyfriend had duct tape in his hand. He and defendant spoke to each other in Spanish. Then, the ex-boyfriend bound the victim’s hands with duct tape and put it across her mouth. They moved her to the ex-boyfriend’s cousin’s car, while defendant held on to her with the knife at her back. The tape fell off the victim’s hands. The ex-boyfriend said that defendant had told him in Spanish that he wanted to kill the victim and the boyfriend was going to pay money for defendant not to do that and that’s why they were leaving in the car. The ex-boyfriend got into the driver’s seat and defendant put the victim into the front seat between him and the ex-boyfriend.
The victim’s mother’s family spoke Spanish, so the victim understood some words, but she was not fluent.
With defendant directing and holding the knife to the victim’s stomach, they traveled to the Glen Helen off-ramp of Interstate 15. When the victim cried, defendant shoved the point of the knife into her stomach. The ex-boyfriend told defendant to move to the back seat, which defendant did, but from there, he held the knife to the victim’s throat. The ex-boyfriend told the victim that defendant had told him in Spanish that if she tried to get away or attract attention to herself, defendant would kill her. After they traveled through windy roads, they stopped and the ex-boyfriend said he would get another vehicle as his cousin’s was stolen. The victim and defendant waited at the side of the road while the ex-boyfriend drove away, returning 10 minutes later, driving his own SUV. Defendant put the victim into the back seat. The ex-boyfriend and defendant had another conversation in Spanish and the ex-boyfriend told the victim they were going to the bank. They went to an ATM machine at a bank, the ex-boyfriend withdrew some money, returned to the truck and gave it to defendant, telling the victim it was either $200 or $300. At some juncture up to this point, the tape on the victim’s mouth was removed. There was another conversation in Spanish between defendant and the ex-boyfriend. The ex-boyfriend then told the victim that they would be going to a fast food restaurant. The ex-boyfriend told the victim that defendant had said in Spanish for her to lie down on the floor of the back seat and if she tried to attract attention as they traversed the drive-through, she would be killed. Defendant, who was in the front passenger seat, held the knife in his hand. They then went to a gas station. The victim offered to get out and pump the gas, but defendant said no. They drove through the hills and then the victim said she needed to stop. She was told if she tried anything, she’d be shot. The ex-boyfriend got out of the SUV with her and told her that she would be safer if they stayed together. They returned to the SUV and the three traveled up Interstate 15 to an area near Wrightwood, with defendant once again directing the ex-boyfriend. Defendant kept the knife on his thigh. The ex-boyfriend told the victim that when they got to a turnout, defendant would let them go. When they arrived at the turnout, the ex-boyfriend changed his mind and said he wanted to go back the way they came. At the next turnout, the ex-boyfriend stopped the SUV. He told the victim that she would be let go. He and defendant got out and spoke, then the ex-boyfriend returned to the SUV and told the victim that defendant wanted to rape her or he would kill her. The victim cried and asked the ex-boyfriend to help her. The ex-boyfriend told her he’d talk to defendant. After doing so, the ex-boyfriend returned to the SUV and told the victim that defendant said he would let the two of them have sex, but she would be killed if she did not cooperate. She cried and told the ex-boyfriend she did not want to have sex with him, but she was afraid to die. Defendant stood eight feet from the front of the SUV while the victim and the ex-boyfriend had intercourse in the cargo area behind the back seat. Defendant did not appear to be watching them. The ex-boyfriend got out of the SUV followed later by the victim. When she got out, the ex-boyfriend was on the ground with his hands duct taped behind his back. Defendant kicked him in the ribs. Defendant told the victim, in Spanish, to put her hands behind her back and he duct taped them together and pushed her to the ground. He ran the knife over her back while making grunting and moaning noises. He used the knife to cut off a chunk of her hair and asked her if she liked that. Defendant took off in the SUV, leaving the victim and the ex-boyfriend at the turnout. As they walked to a gas station, the ex-boyfriend told the victim, “When this is all over[,] I want to ask you to get back [with] me.� When they arrived at the gas station, the victim used a pay phone to call her mother. By then, a police officer was at her home and got on the phone with her. It was about 1:00 a.m.
The ex-boyfriend testified that on the night of June 7, 2004, he had given defendant, whom he just met, a ride to the latter’s boss’s house, when defendant informed him that he did not have the money to get home, so the ex-boyfriend took defendant with him to the victim’s house. The ex-boyfriend denied discussing with defendant what would happen at the victim’s or seeing the knife or duct tape. After defendant grabbed the victim, held the knife on her and forced her to go to the car, defendant handed the ex-boyfriend a roll of duct tape and told him to bind the victim’s hands. Defendant said he wanted money and the ex-boyfriend agreed to get him some and told him to leave the victim alone. The ex-boyfriend testified he went with defendant because defendant had a knife and he feared that defendant would harm the victim. He passed along to the victim defendant’s threats that he would harm her. After going to the Glen Helen area, defendant told the ex-boyfriend that he wanted his SUV and he gave him 5 or 10 minutes to return with it or he would kill the victim. The ex-boyfriend got his SUV at his cousin’s house, but did not ask for help because of defendant’s threats. He picked up defendant and the victim and drove to an ATM to get money for defendant. He used his mother’s ATM card to get either $40 or $80, then drove to a fast food restaurant because defendant said he was hungry. The ex-boyfriend did not alert people at the gas station where they got gas because he feared defendant would kill the victim. The ex-boyfriend later told the police that defendant told him that he wanted to go to the mountains and he would leave the victim and the ex-boyfriend there and not kill them. The ex-boyfriend drove north on Interstate 15 at defendant’s direction, but got off and headed towards Wrightwood of his own accord. Defendant told the ex-boyfriend where to stop, took the keys to the SUV and told the latter that he was going to rape the victim. The ex-boyfriend told defendant not to, saying he’d prefer to die rather than have defendant rape the victim. Defendant told the ex-boyfriend he could kill him and still rape the victim. Defendant told the ex-boyfriend he wanted to see the latter and the victim have sex, or he would kill them. The ex-boyfriend conveyed this to the victim and they had intercourse in the back of the SUV while defendant stood next to the hood. After they finished, defendant knocked on the window and the ex-boyfriend got out. Defendant bound the ex-boyfriend’s hands and feet, pushed him to the ground and kicked and beat him. Defendant then had the victim get out of the SUV and he bound her with duct tape. He told her she was beautiful. The ex-boyfriend cussed at defendant, telling him to leave the victim alone. Defendant left the victim, came over to the ex-boyfriend and kicked the latter, then returned to the victim. The ex-boyfriend later told the police that defendant told them to stay on the ground until he was gone. Defendant got in the SUV and drove off. The ex-boyfriend denied having a plan to commit the acts that occurred and hiring defendant to help him. He denied instructing defendant to cut the victim or her hair or to bind her with tape. He admitted that he pled guilty to raping the victim, lying to police after the crimes and that he wanted the victim back as his girlfriend.
Defendant testified that the ex-boyfriend came to defendant’s house and got the latter to go with him in his SUV on the ruse that he had heavy lifting for defendant to do for money. After driving around for a couple of hours and switching to his cousin’s car, the ex-boyfriend told defendant he wanted him to help cut the back of the victim’s knees with a knife, leaving her crippled, for $1500. The ex-boyfriend explained that the victim had been following him, he had a new girlfriend, and he wanted to get rid of the victim. Defendant did not agree to do this and asked to be let out of the car, but the ex-boyfriend told him that if he didn’t hurt the victim, the ex-boyfriend knew where defendant lived and looked for work and he had someone who would hurt defendant. Defendant stayed with the ex-boyfriend only because he believed this threat. On the way to the victim’s Chino home, the ex-boyfriend gave defendant a knife, which defendant then held on the victim, and duct tape and told defendant to help him grab the victim, tape her mouth and get her into the car—that they were going to the mountains. The ex-boyfriend kept the keys to the car while they were at the victim’s home and he directed defendant and the victim to get in the car there. He denied directing the route the ex-boyfriend took. He admitted holding the knife to the victim’s body as they traveled. They stopped on the way to San Bernardino, but the ex-boyfriend held onto the keys and they got back into the car according to the ex-boyfriend’s directions. In San Bernardino, the ex-boyfriend left defendant, who had the knife in his pocket, and the victim at the side of the road while he exchanged the car, once again, for his SUV. Defendant admitted they stopped at a gas station, where defendant still had the knife, at an ATM where the ex-boyfriend got what he said was $100 and ate at a fast food restaurant. The ex-boyfriend told defendant to tell the victim to lie on the floor of the back seat as they drove through the drive through. At one point, the ex-boyfriend stopped the SUV and he and the victim got out, going 40-50 meters away from the car to relieve themselves. They were out of defendant’s sight for two to three minutes. The ex-boyfriend drove up to the area around Wrightwood. He stopped one time, saying he wanted to leave defendant and the victim there, but neither got out. He told defendant to tell him in Spanish to go to the place they eventually stopped, as there may have been coyotes near the first location. The ex-boyfriend got the defendant out of the SUV at the second stop and told him he wanted defendant to hurt the victim, then leave him and her there so the victim would not realize what the ex-boyfriend was doing. First, however, the ex-boyfriend wanted to talk to the victim, who was still inside the SUV. He got back into the SUV with the keys and stayed inside with the victim for 7-10 minutes. Defendant was not able to see what was going on inside the SUV at this time. When the ex-boyfriend and the victim emerged from the SUV, the former told defendant to hurt the victim. He also told defendant to tie him up, put him on the ground and pretend to kick him, which the defendant did, while still having the knife. Defendant denied telling the ex-boyfriend that he wanted to have sex with the victim or see her naked. The ex-boyfriend said nothing about having sex. When the victim got out of the SUV, she screamed and defendant told her to shut up and lay on the ground or he’d kill the ex-boyfriend. Defendant taped the victim’s hands and put her on the ground. The ex-boyfriend wanted defendant to cut off all of the victim’s hair, but he only cut off a portion and he did not cut the backs of her knees. He denied touching her back with the knife. He then drove the SUV away, leaving the victim and the ex-boyfriend. Despite his claims of being forced to participate in the crimes, defendant admitted discussing with the ex-boyfriend, before the afternoon of June 7, 2004, how the latter was going to get the victim to come out of her home. Although he told the police that he and the ex-boyfriend had, over a three-day period, discussed the plan to hurt the victim, he denied meeting the ex-boyfriend on more than one occasion to do this. He claimed the plan was all the ex-boyfriend’s idea. He also admitted that the ex-boyfriend had left the knife in the car with defendant as the ex-boyfriend went up to the victim’s house and got her to come outside. He explained that he did not have the victim’s neighbors call the police while the ex-boyfriend left him in the car because the ex-boyfriend had told him that he had people watching defendant. He admitted, however, that he never saw these people, the ex-boyfriend never touched him and he never saw a weapon on the ex-boyfriend. Part of the plan was for defendant to threaten the ex-boyfriend to make it look like the latter was also a victim.
Defendant explained that the ex-boyfriend switched vehicles by leaving defendant locked inside the SUV while he went down the street and picked up his cousin’s car.
However, for the first time at trial, defendant claimed that the ex-boyfriend told him that he had a weapon.
Defendant told the police after his arrest that the ex-boyfriend proposed that they drive to the victim’s house because, for $50,000, the former wanted defendant’s help to cut the victim with a knife and cut her hair. The ex-boyfriend also threatened defendant to participate. The two men discussed the plan over a three-day period and the ex-boyfriend gave defendant the knife, duct tape and a pair of gloves. Defendant was to threaten the ex-boyfriend several times and make the victim believe that the former was not involved. Defendant was to get the victim to the car at knife point and direct the ex-boyfriend to drive. When he put the victim in the car, the ex-boyfriend was to tell defendant to get the victim naked but defendant refused to do this. They discussed that the ex-boyfriend was going to be allowed to have sex with the victim before defendant was to cut her legs and hair.
II.
ISSUES AND DISCUSSION
A. Jury Instruction
1. CALJIC No. 3.01
The trial court gave CALJIC No. 3.01, the standard instruction on aiding and abetting, which states as follows:
It is most regrettable that San Bernardino Superior Court appears to have a policy of not including the parties’ lists of requested instructions in the Superior Court file. As a consequence, we are unable to determine whether defendant invited this asserted error by requesting that CALJIC No. 3.01 be given. We cannot imagine the reason behind the trial court’s policy, it is a violation of California Rules of Court, rule 2.1055(b)(2) and we highly recommend that it be terminated immediately.
“A person aids and abets the [comission] . . . of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. . . . [Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.] [¶] [Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.]â€�
Defendant here contends, for the first time, that the inclusion of the sentence, “Mere presence at the scene of a crime which does not itself assist the commission of the crimes does not amount to aiding and abetting� was improper. He asserts that this sentence “suggest[ed] . . . that . . . guilt [could be based on] . . . his mere presence at the scene so long as that presence happened to assist [the ex-boyfriend] in his commission of the crime—a notion that is plainly at odds with the need to prove an aider and abettor’s specific intent[.]� However, it is defendant’s argument that is at odds with itself.
Although we agree with the People that defendant’s failure to object to this instruction below, and the distinct possibility that he actually requested it (see fn. 2, ante, at p. 2) because it is a standard instruction given in every aiding and abetting case, waived the matter, it is easier just to address his contention on the merits.
CALJIC No. 3.01 requires that an aider and abettor act “with knowledge of the unlawful purpose of the perpetrator� and “with the intent or purpose of committing or encouraging or facilitating the commission of the crime[.]� Therefore, if defendant did nothing other than be at the scene and his presence happened to assist the ex-boyfriend, without the knowledge and intent required by CALJIC No. 3.01, he could not be guilty under that instruction. It is not at all reasonable that the jury would have interpreted this sentence to do away with the knowledge and intent requirements for aiding and abetting. (See Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Defendant correctly points out that the jury was mis-instructed on the natural and probable consequences theory. It was told, “One who aids and abets another in the commission of a crime is not only guilty of that crime but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crime of forceable rape as charged in Count II, you must be satisfied beyond a reasonable doubt that, Number 1, the crime of forceable rape was committed; Number 2, that the defendant aided and abetted that crime; Number 3, that a coprincipal in that crime committed the crime of kidnapping; and Number 4, the crime of forceable rape was a natural and probable consequence of the commission of the crime of kidnaping. [¶] . . . [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted so long as you are satisfied beyond a reasonable doubt and you unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of forcible rape was a natural and probable consequence of the commission of that target crime.â€�
2. CALJIC No. 2.01
The jury was given CALJIC No. 2.01, the standard instruction on the sufficiency of circumstantial evidence, which provides as follows:
“However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular court] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] . . . innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation which points to [his] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.â€�
Defendant here, for the first time, contends that this instruction should not have been given, and CALJIC No. 2.02 should have been. CALJIC No. 2.02 provides:
The fact that defendant failed to put any objection to CALJIC No. 2.01 on the record persuades us that he made no such objection. Moreover, there is a distinct possibility that he actually requested the instruction. (See fn. 2, ante, at p. 2.)
“The [specific intent] [or] [and] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not [find the defendant guilty of the crime charge [in Count[s] . . ., [or] [the crime[s] of . . ., which [is a] [are] lesser crime[s]], [or] [find the allegation . . . to be true,] unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [and] [mental state] but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to [any] [specific intent] [or] [mental state] permits two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.â€� (CALJIC No. 2.02)
Defendant asserts that the absence of CALJIC No. 2.02 deprived the jury of the instruction that it could not find him guilty as an aider and abettor of the rape unless the proved circumstances were not only consistent with the theory that he had the requisite specific intent of an aider and abettor, but cannot be reconciled with any other rational conclusion.
The jury was instructed that both kidnapping and rape were general intent crimes and defendant here does not take issue with this instruction. The use note for CALJIC No. 2.02 states, “If the only circumstantial evidence relates to specific intent . . ., CALJIC No. 2.02 should be given. [I]f the circumstantial evidence relates to other matters . . . as well as specific intent, . . . CALJIC [No.] 2.01 should be given and not CALJIC [No.] 2.02.� In People v. Marshall (1996) 13 Cal.4th 799, 849, the California Supreme Court held, “Use of CALJIC No. 2.01, rather than 2.02, is proper unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. [Citation.] Here, mental state was not the only element of the case resting on circumstantial evidence; consequently, the trial court did not err in reading the more inclusive instruction [i.e., CALJIC No. 2.01].� Here, as in Marshall, circumstantial evidence related to matters other than just defendant’s specific intent as an aider and abettor of rape. Therefore, CALJIC No. 2.01, rather than CALJIC No. 2.02, was the appropriate instruction.
Defendant concedes that the law is not in his favor to the extent he argues he was sufficiently prejudiced by the absence of CALJIC No. 2.02 to require reversal. Indeed, in People v. Bloyd (1987) 43 Cal.3d 333, the defendant was charged with two counts of murder. (Id. at p. 340.) CALJIC No. 2.01 was given. (Id. at p. 351.) CALJIC No. 2.02 was also given, but only as to the specific intent to kill, the trial court striking from it any reference to mental state. (Id. at pp. 351-352.) The defendant contended that the trial court prejudicially erred in refusing to include in CALJIC No. 2.02 the requisite mental states of malice, premeditation and deliberation. (Id. at p. 352.) The California Supreme Court held, “[T]he [trial] court was not obliged to give CALJIC No. 2.02. . . . In this case, the specific question that would have been posed by adding ‘or mental state’ [to CALJIC No. 2.02] was presented by the general circumstantial evidence instruction that was given [i.e., CALJIC No. 2.01]. [¶] More importantly, defendant suffered no prejudice from the trial court’s omission of the words ‘or mental state.’â€� (Id. at p. 352.) In People v. DeLeon (1982) 138 Cal.App.3d 602, 608, a case where both specific and general intent crimes were charged, the appellate court held that the defendant had not been prejudiced by the absence of CALJIC No. 2.02 where CALJIC No. 2.01 was given. Recently, the California Supreme Court reiterated the well-established rule that any failure to give CALJIC No. 2.02 as to a specific crime is not prejudicial if CALJIC No. 2.01 has been given. (People v. Thornton (2007) 41 Cal.4th 391, 441; accord, e.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) Also recently, in People v. Burch (2007) 148 Cal.App.4th 862, 872, 873, Division One of this court held, “[E]ven if CALJIC No. 2.02 should have been given, we cannot reverse. The only difference between the two instructions is that CALJIC No. 2.02 focuses the jury’s attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state, while CALJIC No. 2.01 broadly covers all circumstantial evidence. . . . In this case, there is no reasonable probability the jury would have misapplied the rules applicable to circumstantial evidence stated in CALJIC No. 2.01 to the determination whether appellant had the requisite specific intent to support the forgery charge. Any error was clearly harmless and appellant has failed to carry his appellate burden to show the purported error was prejudicial. [Citations.]â€� To whatever extent defendant suggests the absence of CALJIC No. 2.02 violated his federal constitutional rights, he is incorrect. (See People v. Rogers (2006) 39 Cal.4th 826, 886-887.)
Not that it is pertinent to the outcome of this issue, but we feel compelled to comment on defendant’s assertion that “[t]here appeared to be no question that [the ex-boyfriend] masterminded both the kidnapping and rape and that [defendant] agreed to participate in the initial kidnapping, the only real remaining issue presented for the jury concerned the determination of [defendant’s] intent apropos the rape.� This assertion completely ignores the ex-boyfriend’s testimony at trial which, while the jury may have disbelieved large portions of it, was no less difficult to believe than defendant’s trial testimony. According to the ex-boyfriend, it was defendant who masterminded the kidnapping and the ex-boyfriend went along because defendant had a knife and the ex-boyfriend was afraid for the victim. The ex-boyfriend also testified that he had intercourse with the victim because of defendant’s threat to kill them if they did not. Defendant’s assertion also ignores what defense counsel argued to the jury, i.e., that the ex-boyfriend kidnapped defendant, just as he kidnapped the victim, and he forced defendant to do everything the latter did. Counsel also suggested that defendant had done nothing to aid and abet the rape of the victim by the ex-boyfriend and did not even know it was happening.
B. Motion for Mistrial
During his direct examination for the prosecution, the ex-boyfriend testified that he pled guilty to rape, based on the facts involved in this case, and was then serving a term in prison for that conviction. At the conclusion of the People’s case, in the presence of the jury, the prosecutor requested the trial court take judicial notice of the ex-boyfriend’s date of conviction. The trial court asked the prosecutor if she wanted “both conviction and sentencing dates or just conviction date?â€� The prosecutor responded, “Conviction so it is complete conviction and sentencing.â€� The trial court replied, “We will do both. Let the record reflect that . . . [the ex-boyfriend] was convicted on . . . August 12th of 2004. . . . And that was through a guilty plea of . . . forcible rape. [¶] And on . . . September 23rd of ’04, [he] received a midterm of six years in the state prison for that.â€� Although defense counsel did not object, at an immediately subsequent bench hearing, she moved for a mistrial on the basis that the jury had been informed of the length of the ex-boyfriend’s sentence. She asserted that even though the jury would be instructed not to consider punishment, it may feel that defendant would not get a particularly lengthy punishment for his commission of these crimes, because the ex-boyfriend did not, and this would encourage the jury to convict him. The trial court found counsel’s argument to be “incredibly speculativeâ€� and contrary to the instruction that the jury not consider punishment. The trial court also concluded that the information impeached the ex-boyfriend’s credibility as a prosecution witness and if the ex-boyfriend had not been convicted and punished for what happened to the victim, it would make defendant look completely responsible for everything.
Apparently, the trial court had not intended to reveal the length of the ex-boyfriend’s term, but did so inadvertently.
The trial court denied defendant’s motion for mistrial, but later, in the presence of the jurors, instructed them as follows, “The Court took judicial notice of its files regarding one of the witnesses in this case, [the ex-boyfriend]. And I indicated to you that he was convicted of rape and he was given a six year state prison sentence. Okay. There’s a couple things I want to mention to you with regard to that. [¶] Number one, you will be instructed later, but I’m going to mention it now[,] that you’re never to be concerned with the subject of penalty of punishment. [¶] Your job is to decide whether this defendant, Mr. Lopez, is guilty or not guilty. Okay. You are not to in any way consider what punishment Mr. Lopez may or may not receive. That is totally my job and you are not permitted to in any part of your discussions discuss what punishment Mr. Lopez may or may not receive if you find him guilty. [¶] And the corollary to that is any speculation as to what he may or may not receive if he’s found guilty should not play any part in your determination as to whether he is guilty or not. Whether he’s guilty or not is based upon the evidence you receive in this trial and not anything else. Okay. [¶] Secondly, the fact that [the ex-boyfriend] received a certain sentence has nothing to do with what happens to Mr. Lopez if you find him guilty. [¶] And just as you are not to consider in the general sense the subject of penalty or punishment regarding Mr. Lopez, I’m going to order you that you should not in any way consider [the ex-boyfriend’s] punishment which you’ve been told what he received, in connection with your duty, to base your decision on whether or not Mr. Lopez is guilty or not guilty on the evidence and only on the evidence. [¶] So when you’re back there in the jury room, I don’t want to discuss anything about [the ex-boyfriend’s] sentence. That is absolutely immaterial and has nothing to do with your decision as to whether or not Mr. Lopez is guilty in this case. And I don’t want you in any way to consider or think about or talk about what punishment Mr. Lopez may receive if he’s found guilty. [¶] Okay. Everybody clear about that?â€�
The jury responded affirmatively.
At the conclusion of trial, the jury was again instructed not to consider “the subject of penalty or punishment.�
Defendant here contends that the trial court abused its discretion in denying his motion for a mistrial. Using the same theory of prejudice he advanced below, defendant asserts that the ex-boyfriend “was clearly the more culpable offender.� However, the facts adduced at trial do not support this assertion. It was not the ex-boyfriend, but defendant, who, according to the victim, initially grabbed her, put his hand over her mouth, pulled a knife and put it to her back, held on to her with the knife to her back as she was moved towards the car and put her into the car. It was defendant, and not the ex-boyfriend, who held the knife to the victim’s stomach, shoved the tip of the knife into her stomach when she cried and held it to her throat while she reclined in the front seat during the drive to San Bernardino. It was defendant who held the knife in his left hand as they went through the drive through at the fast food restaurant and on his thigh during the trip to Wrightwood. He was the one who declined the victim’s offer to get out of the car and pump gas at the gas station and directed the ex-boyfriend where to drive on Interstate 15. It was defendant who, after the victim and the ex-boyfriend had had intercourse, duct taped the ex-boyfriend’s hands behind his back, shoved him to the ground and kicked him in the ribs. It was defendant who duct taped the victim’s hands, pushed her to the ground and ran the knife over her back, while grunting and moaning, then cut off a chunk of her hair, asking her if she liked it. Even discounting all the threats and commands the ex-boyfriend said defendant gave the victim, it was defendant who received the money at the bank and drove off in the ex-boyfriend’s truck, leaving the latter and the victim stranded in the mountains. The fact that the victim did not even realize that the ex-boyfriend was involved until the police were questioning her after the crimes suggests which of the two men engaged in more culpable acts. Contrary to defendant’s assertion, this was not a “close case� in terms of defendant’s guilt.
Defendant’s reliance on Rogers v. United States (1975) 422 U.S. 35 is misplaced. In Rogers, the deliberating jury sent the trial court a note asking if it would accept a verdict of “[g]uilty as charged with extreme mercy of the [c]ourt.� (Id. at p. 36.) The trial court said it would and, five minutes later, the jury returned this verdict. (Ibid.) The trial court then told the jury that it would consider the recommendation of mercy, but it would also have to consider the probation report and whether defendant had a criminal record. (Id. at p. 37.) The United States Supreme Court held that the trial court’s response to the jury’s inquiry was improper and the trial court should have informed the jury that the latter had no sentencing function and it should reach a verdict without regard to any possible sentence. (Id. at p. 40.) The Court concluded that the timing and manner of the error effectively reduced the prosecution’s burden of proof because it may have persuaded jurors who were holding out to vote for guilt in light of the possibility of mercy being shown to the defendant. (Ibid.) No such timing occurred here and, unlike in Rogers, the trial court took steps to prevent the jury from relying on the information about the sentence.
Equally inapplicable is United States v. Greer (10th Cir. 1980) 620 F.2d 1383, which defendant also cites. In Greer, a federal marshal discussed with jurors the sentencing of youthful offenders, which the jurors could have interpreted applied to the defendant. The Greer court held, “if the jury is convinced that a defendant will receive a light sentence, it may be tempted to convict on weaker evidence.� (Id. at p. 1385.) Here, there was no basis for the jury to even guess that defendant would receive a light sentence based on the sentence the ex-boyfriend received. The latter had been sentenced only for rape, with no attendant allegations. Defendant, on the other hand, faced sentencing for kidnapping, as well as a number of enhancement allegations for both offenses.
C. Cumulative Error
Having concluded that no prejudicial error occurred due to: 1) the absence of CALJIC No. 2.02, 2) the admission of evidence that the ex-boyfriend received a six year prison sentence for rape, and 3) the misstatement of the natural and probable consequences theory, we necessarily reject defendant’s contention that the cumulative effect of these requires reversal of his conviction for rape.
See footnote 7, ante, at pages 13-14; infra.
D. Sentencing
Defendant here contends that his sentence for kidnapping and its attendant knife use enhancement should have been stayed pursuant to Penal Code section 654 because both offenses were committed as part of an indivisible course of conduct and were incidental to a single criminal objective. He acknowledges that the trial court’s implied finding otherwise must be upheld if it is supported by substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) In People v. Latimer (1993) 5 Cal.4th 1203, 1216, which defendant cites, the California Supreme Court held that where the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes, Penal Code section 654 bars punishment for both. There, the defendant physically and sexually assaulted the victim soon after kidnapping her and without doing anything else with her. Here, in contrast, hours elapsed and a number of things occurred between the time the victim was forced into the car parked outside her house and her rape in the mountains. Thus, there was sufficient evidence for an inference by the trial court that the victim had not been kidnapped merely to facilitate the rape and/or that the rape was an afterthought to the kidnapping and the events that occurred subsequent to it.
Defendant, again, ignores what occurred at trial by asserting that “the only real issue for the jury was the determination of [defendant’s] culpability for the rape.� In fact, counsel for defendant argued to the jury that her client was not guilty of either charged offense. (See the last two sentences of fn. 9, ante at p. 17-18.)
Defendant points out that he had told a police officer that he and the ex-boyfriend had planned the incident over a three-day period (a matter defendant denied on the stand) and the ex-boyfriend had told defendant that the victim would be afraid defendant would rape her and they discussed that the ex-boyfriend was going to be allowed to have sex with the victim before defendant cut her hair and knees. However, the officer testified that defendant did not say whether the plan that the ex-boyfriend have sex with the victim before defendant cut her hair and knees occurred in the days before the incident, hours before the incident or when they were already in the mountains. Even if the court believed that this conversation occurred before the incident began, it did not necessarily mean that the victim was kidnapped solely to facilitate the rape. Likewise, even if the jury found defendant guilty of rape based on the unnecessary finding that it was a natural and probable consequence of the kidnapping, that did not mean that it was done merely to facilitate the rape.
In his argument to the jury, the prosecutor said, “It doesn’t matter, it’s unclear whether or not the defendant and [the ex-boyfriend] had that final conversation, the one about the cutting of the hair[,] before they went up the mountain or once they were on the mountain. But for your purposes it doesn’t matter. Because once he was in, he was in for good . . . .� Defendant’s assertion that it was the prosecution’s theory that defendant may have been motivated by a promise of money by the ex-boyfriend, and planned to drive to the mountains in order to cut her hair and knees, but these were incidental to the plan to kidnap the victim to facilitate the ex-boyfriend’s plan to dupe the victim into submitting to sex with him is belied by the record. (See fn. 9, ante at pp. 17-18.)
See footnote 7, ante, at pages 12-13.
Defendant also contends that the Sixth Amendment requires that the jury, rather than the trial court, make factual determinations supporting the conclusion that Penal Code section 654 does not bar punishment for both of his crimes. Although he cites Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) for this right as it pertains to the imposition of the upper term, he acknowledges that neither decision, nor People v. Black (2007) 41 Cal.4th 799 (Black), addressed the right as it pertains to Penal Code section 654. Yet, he asserts, “Permitting a judge to make that finding is clearly inconsistent with the holdings of Apprendi-Blakely-Cunningham because it allows the trial court to make findings necessary to impose a sentence higher that in could on the jury’s findings alone.� Defendant is incorrect. Penal Code section 654 does not permit a trial court to impose a higher sentence for a single conviction as does the law which was declared invalid in Apprendi, Blakely and Cunningham. Defendant acknowledges that case law is against him on this issue (See People v. Solis (2001) 90 Cal.App.4th 1002, 1020; People v. Cleveland (2001) 87 Cal.App.4th 263, 269-71) but he criticizes those decisions. We, on the other hand, agree with them and embrace their analyses as our own.
2. Consecutive Sentences
The trial court ran the sentences for the kidnapping and its attendant knife-use enhancement consecutive to the sentence for rape, finding that the crimes involved separate acts of violence or threats of violence in that at different times throughout her “several hour ordeal� with defendant, the victim was threatened by defendant with a knife and he put it at her back and other parts of her body. Defendant here contends that under Apprendi, supra, 530 U.S. 446 at page 490, and Cunningham, he had a right to have a jury determine the facts used to impose consecutive sentences. However, this argument was rejected by the California Supreme Court in Black, supra, 41 Cal.4th at pages 821, 823.
DISPOSITION
The trial court is directed to amend the determinate abstract of judgment to show that he was sentenced to a determinate term of six years, not to a determinate term of 31 years, as that abstract currently states. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.
Actually, the first instruction should have read that in order to find defendant guilty of the crime the jury was considering at that point, it must be satisfied that the target offense was committed, that defendant aided and abetted the target offense, that the coprincipal of the target offense also committed the crime then being considered and that crime was a natural and probable consequence of the commission of the target offense. As defendant correctly points out, the prosecutor repeated this error in his argument to the jury, saying that, to find defendant guilty of rape, the jury had to be satisfied beyond a reasonable doubt that the victim was raped, that defendant aided and abetted the rape, that the ex-boyfriend kidnapped the victim and the rape was a natural and probable consequence of the kidnapping. However, what is the practical effect of the erroneous instruction and argument? It is that the jury was required to find that the victim was raped and that defendant aided and abetted that crime. These findings render defendant criminally liable for the rape of the victim. The fact that the jury had to make additional findings, i.e., that the ex-boyfriend kidnapped the victim and the rape was a natural and probable consequence of the kidnapping, did not undermine the first two findings and did not make his any less guilty of rape.
Defendant unpersuasively attempts to weave this error into his argument about CALJIC No. 3.01. Finding no error prejudicial to him in regard to either instruction, we necessarily reject any suggestion that the one “fed into� the other or exacerbated the other.