Opinion
A145584
04-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN LORENZANA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR303540)
INTRODUCTION
A jury convicted defendant Adrian Lorenzana of forcible rape and oral copulation, and four other offenses, against S.V. The jury also convicted defendant of assault with a deadly weapon against D.S. The jury was unable to return verdicts on the sex and other offenses involving D.S. On appeal, defendant contends a juror committed misconduct, and the court erred in not removing him. He also contends the court sentenced him to consecutive terms for assault and making criminal threats in violation of Penal Code section 654. We reject defendant's claim of juror misconduct error but find his claim of sentencing error has merit. We therefore affirm the judgment of conviction but remand to the trial court for correction of the sentence.
Unless otherwise indicated, all further statutory references are to the Penal Code. --------
STATEMENT OF THE CASE
By amended information filed in Solano County, defendant was charged with the following six offenses against S.V. on or about July 27, 2013: Count 1, forcible rape; count 2, forcible oral copulation; count 3, assault with a deadly weapon (a knife); count 4, battery with serious bodily injury; count 5, criminal threats; and count 6, first degree burglary. (§§ 261, subd. (a)(2), 288a, subd. (c)(2), 245, subd. (a)(1), 243, subd. (d), 422, 459.)
The information also charged defendant with committing the following five offenses against D.S. on or about October 19, 2013: Count 7, forcible rape; count 8, forcible oral copulation; count 9, assault with a deadly weapon (a knife); count 10, criminal threats; and count 11, first degree burglary. (§§ 261, subd. (a)(2), 288a, subd. (c)(2), 245, subd. (a)(1), 422, 459.)
The information alleged that each of the offenses was a serious felony and that counts 3, 6, and 11 were also violent felonies (§§ 1192.7, subd. (c), 667.5, subd. (c)); that defendant personally used a deadly and dangerous weapon (a knife) during the commission of counts 1, 2, 4, 5, 6, 7, 8, 10 and 11 (§ 12022, subd. (b)(1)), and that defendant inflicted great bodily injury on S.V. during the commission of counts 1, 2, and 3 (§ 12022.7, subd. (a)).
As to the commission of the sex offenses (counts 1, 2, 7, 8), the information alleged that defendant personally used a dangerous or deadly weapon (a knife) (§§ 667.61, subds. (a), (d), (e), 12022, 12022.3), committed the offenses during the commission of a first degree burglary (§§ 667.61, subds. (a), (d)(4), (e), 460, subd. (a)), and had been convicted in the present case of committing an offense specified in subdivision (c) of section 667.61 against more than one victim (§ 667.61, subds. (a), (d), (e)(4).)
The jury retired to deliberate on February 10, 2015. On Wednesday, February 11, the jury indicated it had reached verdicts on counts 1, 2, 3, 4, and 6, was confused about the multiple victim allegation attached to counts 1 and 2 and, after several ballots, was divided 11 to 1 on counts 5, 7, 8, 9, 10, and 11. After clarifying the multiple victim allegation, the court recessed deliberations until Friday, February 13, 2015, at 9:30 a.m.
On February 13, 2015, the court was informed that Juror No. 9 may have engaged in misconduct by approaching a witness. The court and defense counsel questioned the juror. The court denied defense counsel's request to remove the juror. Later that morning, the jury returned guilty verdicts on counts 1, 2, 3, 4, 5, 6, and 9. The jury found true all the special allegations except the multiple victim allegations (§ 667.61, subd. (e)(4)) attached to counts 1 and 2. The court declared a mistrial on counts 7, 8, 10, and 11.
On June 19, 2015, the court sentenced defendant to an aggregate indeterminate term of 54 years to life in prison with a consecutive aggregate determinate term of five years eight months. This timely appeal follows.
STATEMENT OF FACTS
Counts 1 through 6: S.V.
On July 27, 2013, S.V. rented a room at the Solano Lodge in Fairfield. As she walked to her room a car driven by defendant pulled up beside her. Defendant had crossed eyes, long black hair, a goatee and was Mexican, and he asked her how much, if she was looking for a party, and for a date. He also said he had some coke. S.V. had been arrested for prostitution before and understood he wanted to pay for sex. S.V. was not working that night and said no.
She went to her room. Soon, she heard a knock on her door. Thinking it was a friend she was expecting, she opened the door. Defendant barged in, pushing her. He had a knife out, pointing at her, and he said, "[L]et's do this." S.V. screamed because he scared her. He told her to take off her clothes and said he was going to kill her. She believed him. He said he wanted sex, and he repeated, "[I]f you don't do this, I will kill you." He said he wanted her to suck his penis. She complied; he still had the knife in his hand. Eventually he said, "[E]nough of this. Let's have sex." He was lying down, and she acted as if she was going to get on top of him, but instead she ran for the door. Defendant came behind her and grabbed her with his arms. They fell on the floor, wrestling, and she got stabbed in the thumb with the knife. She was bleeding a lot and just gave up. This time when he told her to take her clothes off she complied, after wrapping her hand in a towel. She pleaded with him to use a condom and he did. Defendant lay on top of her and inserted his penis inside her vagina. He also sucked her left breast. At this point, she was no longer resisting; he still had the knife in his hand. When defendant finished, he told S.V. to get dressed; he flushed the condom in the toilet. After she got dressed, defendant went through her purse. He found her I.D. and wrote all her identification information on a package of soap. He told her if she called the police it was going to be "all bad." Because he had her information, she was very scared he would be outside her house waiting for her. Defendant told her he was going to take her to the hospital and they left the room at the same time. S.V. acted as if she was going to walk with him but then walked fast towards the motel office. Defendant told her she better not call the police. She could not recall what he said would happen if she called the police, but she did remember "him saying he was going to kill me a couple of times through the whole thing."
S.V. took a taxi to the hospital, where she was treated for her thumb injury, a DNA sample was taken from her breast, and she gave a statement to police. Later, she spoke to Detective Pucci. After speaking to Detective Pucci, S.V. told her friend, D.S., about the attack and described her attacker as having a "lazy eye."
Months later, S.V. saw defendant in a different car stopped at a stop light. They locked eyes, and when the light turned green, he took off. S.V. told Detective Pucci about the sighting. The same day she saw defendant at the stoplight, S.V.'s friend, D.S., told her she, too, had been attacked. Her description of the attacker made S.V. think of defendant, and she told D.S. she should go to the police.
Eventually, S.V. had to have two surgeries to her thumb. As of the time of trial, she had no feeling in the tip of her thumb and she could not bend it. The DNA from her breast matched defendant's DNA.
Counts 7-11: D.S.
On October 19, 2013, D.S. rented a room at the Solano Lodge in Fairfield. As she was walking to the liquor store next door, she was approached by a man driving a silver SUV-like car, who propositioned her. The man was a short-haired Latino with a crossed eye. She identified defendant in court as that man. She got in the car with him. She agreed to have sex with him for $50. They drove to the Lodge and entered her room together. When he closed the door, defendant pulled out a little pocket knife and said, "[Y]ou're going to do this for free." At that moment she realized defendant was the same person who had attacked S.V., and she screamed. Defendant told her to shut up and be quiet; they tumbled into the closet. D.S. grabbed the knife and cut herself, but the cut "wasn't bad." "It was probably a little deeper than a paper cut." D.S. continued screaming and fighting him. At that point, defendant started saying he was going to kill her. She told him " 'no you're not because you would have done it already' because he had the knife. It was like he was purposely like not trying to hit me with the knife." D.S. tried to escape, but defendant threw her onto the bed and started to choke her. D.S. blacked out from the choking, and when she regained consciousness defendant was on top of her trying to get her pants off.
First, he wanted her to perform oral sex on him without a condom, but she persuaded him to get one; she put it on his penis. She then sucked his penis for a few seconds. She remembered stopping and lying back, whereupon defendant got on top of her and had vaginal sex with her. D.S. was scared of defendant; she "could have not woken up after he choked me out." She did not want to have oral or vaginal sex with him because "[h]e was . . . asking me to perform a service that I was charging for and he didn't pay me."
After the sex act, he left the room quickly. As he was leaving, D.S. said something to him about cutting his hair because she wanted him to know she knew who he was. The following week, she went to the police.
Defendant was interviewed by Detective Pucci. When confronted with the DNA evidence, defendant maintained a former girlfriend from high school, K.G., planted the DNA on S.V. He stated he cut his hair on October 18, 2013.
Defendant's jail cell roommate testified that defendant offered to pay him to have his girlfriend pose as defendant's girlfriend, K.G., and deliver a letter to S.V.'s apartment in order to convince her to accept payment for not testifying against him. The script for what the proposed letter should say was confiscated by jail staff, identified at trial by the informant, and admitted as evidence. The letter is addressed to S.V., at her apartment number. In the script, "K." offers to pay S.V. to not testify against defendant. A postscript adds, "[I]f she says yes tell her you need a #number and you need a few days to get the money together and no funny shit!"
DISCUSSION
The Trial Court Did Not Err in Denying the Defense Request to Remove Juror No. 9 for Misconduct.
Defendant argues that Juror No. 9 committed misconduct by approaching a witness in the case, Detective Pucci, to ask a question after jury deliberations had ended for the day on February 11, 2015; that the misconduct gave rise to a presumption of prejudice; and that the presumption has not been rebutted in this case. We disagree.
A. Factual Background
The jury began deliberations on February 10, 2015. At the end of the day on Wednesday, February 11, the jury advised the court it had reached unanimous verdicts on counts 1, 2, 3, 4, and 6, but were unsure about counts 5, 7, 8, 9, 10, and 11. The jury also indicated confusion about the multiple victim allegation attached to counts 1 and 2, which the court clarified. The foreperson informed the court that after several ballots, the vote on the undecided counts stood at 11 to 1. Each juror was polled and indicated further deliberations on those counts would be fruitless. The court decided to recess deliberations until Friday, February 13, 2015, at 9:30 a.m. for the jury to complete its work on the special allegations attached to its verdicts. The verdicts were locked in an office until the jury's return.
On February 13, 2015, before the jury began deliberating, the court was informed that after retiring on Wednesday evening, Juror No. 9 approached Detective Pucci and asked if he could ask the detective something. When Detective Pucci indicated that would not be appropriate, the juror replied, "This is just not right" and walked away.
The court questioned Juror No. 9 about the encounter in the courtroom. The juror explained he had "never been through anything like this before" and "it's actually pretty emotional." Juror No. 9 just "wanted . . . to relay a message to [the court]" and "didn't . . . think I had a way to." He wanted to ask the Court "[t]o review the one juror that is having problems with that." In response to a question by defense counsel, Juror No. 9 said, "The one juror had explained to us she was on a previous trial and that she was the only person that held out and that she didn't follow the case. After it was a hung jury [she] followed the case to its completion and [was] satisfied with that end result. . . . And she also explained how her son is cross-eyed like your defendant and explained how it was more common that you would think. And I felt . . . the outcome would be different if she wasn't a juror." Defense counsel requested Juror No. 9's removal for misconduct, pointing out that the court had clearly admonished the jurors not to communicate with anyone, especially witnesses, about the case, and that Juror No. 9 must have known he could send a message to the court through the bailiff. The court denied the request, noting that "attempting to get the Court's attention through the detective was not appropriate," but the court did not "think there is any prejudice."
Shortly thereafter, the court recalled the jury to the courtroom. The foreperson indicated the jury had actually completed its verdicts on the counts and findings on which it had previously come to a decision. The court asked that the completed verdict forms to be brought to the courtroom. Upon review, the court determined the multiple victim allegation form had yet to be signed and it returned all the verdict forms to the foreperson. The court then reinstructed the jury on its duty to deliberate. Among other things, the court asked the jury "to carefully consider, weigh, and evaluate all of the evidence presented at the trial and to discuss your views regarding the evidence and to listen and consider the views of your fellow jurors. [¶] In the course of further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. . . . [¶] . . . It is your duty . . . to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your own individual judgment. [¶] Both the People and the defendant are entitled to the individual judgment of each juror." In conclusion, the court asked the jury to "complete the . . . special findings on the verdicts that you have completed and to at least discuss the possibility of deliberating further, if you can do so."
The jury retired to deliberate at 9:30 a.m. At 11:45 a.m. it returned guilty verdicts on counts 1, 2, 3, 4, 5, 6, and 9. The jury found true all the special allegations except the multiple victim allegations (§ 667.61, subd. (e)(4)) attached to counts 1 and 2. The court declared a mistrial on counts 7, 8, 10, and 11.
B. General Principles and Standard of Review
"The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution." (Lombardi v. California St. Ry. Co. (1899) 124 Cal. 311, 317; accord, People v. Nesler (1997) 16 Cal.4th 561, 578; Cal. Const., art. 1, § 16; U.S. Const., 6th & 14th Amends.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it." ' " (In re Hamilton (1999) 20 Cal.4th 273, 293-294; see People v. Harris (2008) 43 Cal.4th 1269, 1303 (Harris).) "When even one juror lacks impartiality, the defendant has not received a fair trial." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1111.)
The trial court may discharge a juror who commits misconduct. (§ 1089.) We review the trial court's decision to retain or discharge a juror for abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 506 (Cowan).)
"We first determine whether there was any juror misconduct. Only if we answer that question affirmatively do we consider whether the conduct was prejudicial." (People v. Collins (2010) 49 Cal.4th 175, 242.) "To succeed on a claim of juror misconduct, 'defendant must show misconduct on the part of a juror; if he does, prejudice is presumed; the state must then rebut the presumption or lose the verdict.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1178.) "[I]n determining whether misconduct occurred, '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' " (People v. Majors (1998) 18 Cal.4th 385, 424-425.)
Here, the incident which brought Juror No. 9 to the court's attention was his attempt to speak with Detective Pucci. There is no doubt it would have been misconduct for Juror No. 9 to discuss the case with a nonjuror (in this case, a witness) during the course of trial. (People v. Linton (2013) 56 Cal.4th 1146, 1194 (Linton).) "A juror's unauthorized contact with a witness is improper." (Cowan, supra, 50 Cal.4th at p. 507; see § 1122, subd. (a)(1) [jurors should not converse with anyone on any subject connected to the trial].)
It is also misconduct to disregard the court's instructions. (Linton, supra, 56 Cal.4th at p. 1194.) In this case the jury had been specifically instructed more than once not to talk "about the case or about any of the people or any subject involved in the case with anyone," including witnesses. (Ibid.; People v. Loker (2008) 44 Cal.4th 691, 754; People v. Pierce (1979) 24 Cal.3d 199, 207; People v. Stewart (2004) 33 Cal.4th 425, 509-510.) The court's admonition was broad enough to cover a discussion of Juror No. 9's frustrations with jury deliberations.
However, Juror No. 9 did not actually speak with Detective Pucci about the case or about his frustrations with the deliberative process in general and the holdout juror in particular. Detective Pucci correctly rebuffed Juror No. 9, who did not pursue the conversation but walked away muttering, "This is just not right." If, instead of approaching Detective Pucci, Juror No. 9 had approached the bailiff about getting a message to the judge, there would be no issue of juror misconduct.
This raises the question whether Juror No. 9's contact with Detective Pucci was "de minimus under the circumstances of this case," such that the presumption of prejudice was rebutted (People v. Hardy (1992) 2 Cal.4th 86, 174 (Hardy); see Cowan, supra, 50 Cal.4th at p. 507), or the presumption of prejudice was not raised at all. (People v. Woods (1950) 35 Cal.2d 504, 512 (Woods).) Defendant argues the presumption of prejudice was not rebutted because Juror No. 9's reasons for seeking out Detective Pucci—to relay a message to the court about dysfunction in the jury room—shows he was actually biased against the defense. We disagree. Juror No. 9's attempt to contact the detective came after two days of deliberations. It cannot be misconduct for a juror to form opinions about a defendant's guilt or innocence, based on the evidence, during deliberations. (People v. Bradford (1997) 15 Cal.4th 1229, 1352.) That is the point of jury deliberations. Here, there was no intimation that Juror No. 9 was influenced in any way by Detective Pucci's fleeting comment that it would be inappropriate for him to speak with Juror No. 9.
Defendant also faults the court for the procedural error of not requiring the prosecution to rebut the presumption of prejudice. (See People v. Weatherton (2014) 59 Cal.4th 589, 600 (Weatherton).) In Weatherton, the trial court found the juror had committed serious misconduct by lobbying the other jurors to vote guilty before deliberations had even started. (Ibid.) The court nevertheless concluded, without input from the prosecutor, there was no substantial likelihood of bias. (Ibid.) The Supreme Court observed: "This formulation has it backward. Once a court determines a juror has engaged in misconduct, a defendant is presumed to have suffered prejudice. [Citation.] It is for the prosecutor to rebut the presumption by establishing there is 'no substantial likelihood that one or more jurors were actually biased against the defendant.' " (Ibid.) Applying independent review, the Supreme Court concluded that given the nature, scope, and frequency of the misconduct, the People had not discharged its burden of showing the juror was unbiased. The court set aside the verdict " 'because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard.' " (Ibid.)
In our view, the court below did not commit Weatherton error. We view the court's comments as indicating it found Juror No. 9's inappropriate conduct a de minimus transgression under the circumstances, within the meaning of Cowan, supra, 50 Cal.4th at page 507, Woods, supra, 35 Cal.2d at page 512, and Hardy, supra, 2 Cal.4th at page 174. We cannot say the court abused its discretion in coming to that conclusion on this record. Juror No. 9's act of approaching Detective Pucci to ask a question is nothing like the juror's sustained lobbying efforts in favor of a guilty verdict in Weatherton. Nothing in this record suggests Juror No. 9 formed or expressed any opinion about defendant's guilt or innocence before deliberations began, or lobbied other jurors, or in any way was "transform[ed] from impartial fact finder to combative advocate before deliberations began." (Weatherton, supra, 59 Cal.4th at p. 600.) At most, Juror No. 9's comments indicated his surprise at the emotional nature of the deliberative process and his frustration with the holdout juror's arguments based on factors other than the evidence adduced at trial. This did not make Juror No. 9 a biased adjudicator.
We believe the remark by Juror No. 9 to Detective Pucci in this case suggests only a degree of frustration by that juror over a position possibly held by another juror. Nothing in this record indicates Juror No. 9 reached his view on defendant's guilt other than by a proper assessment of the evidence and that evidence alone. His view on the analysis of the same evidence articulated by another juror in the deliberations is an understandable view after two days of deliberation. We realize at the time of the challenged conversation, the jury had unanimously decided five counts, including serious crimes like rape and forcible oral copulation, and were possibly hung 11 to 1 on the remaining charges.
As the Supreme Court has observed in assessing prejudice and juror misconduct, "the presumption of prejudice is rebutted, and the verdict will not be disturbed, if a reviewing court concludes after considering the entire record, including the nature of the misconduct and its surrounding circumstances, that there is no substantial likelihood that the juror in question was actually biased against the defendant. [Citations.] Our inquiry in this regard is a 'mixed question of law and fact' subject to an independent appellate review. [Citation.] But ' "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by the evidence." ' " (People v. Merriman (2014) 60 Cal.4th 1, 95-96.)
In a case such as this, "[t]he presumption of prejudice may be rebutted, inter alia, by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm." (Hardy, supra, 2 Cal.4th at p. 174; accord, People v. Loot (1998) 63 Cal.App.4th 694, 697.) " '[W]hether an individual verdict must be overturned for jury misconduct or irregularity " ' "is resolved by reference to the substantial likelihood test, an objective standard." ' " [Citation.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]' [Citation.] We independently determine whether there was such a reasonable probability of prejudice." (Harris, supra, 43 Cal.4th at pp. 1303-1304.)
Upon our independent review of the record, we are persuaded that the presumption of prejudice was rebutted in the present case. First, the misconduct was not serious in nature. So far as this record shows, after Juror No. 9 made unsuccessful contact with Detective Pucci, he left and did not return until Friday, when he was questioned before deliberations began again. There was no opportunity for the misconduct in contacting Detective Pucci to somehow infect the deliberations with prejudicial matter that was not part of the trial record on which the case was submitted to the jury. There is no basis to infer that Detective Pucci's few words rebuffing Juror No. 9's approach created anything in Juror No. 9's mind other than awareness he had crossed a line.
Furthermore, Juror No. 9's attempt to contact the detective could not have affected the verdicts. The jury had already decided the verdicts on counts 1, 2, 3, 4, and 6 before the attempted contact; these verdicts were signed on February 10 or 11. The jury had the day off on February 12. When the jurors returned to deliberate on February 13, after the attempted contact, they were unable to agree on all but two of the remaining substantive counts. The guilty verdicts on count 9 (assault with a deadly weapon on D.S.) and count 5 (criminal threats against S.V.) were signed on February 13, as were the true finding on the knife use allegations made in connection with counts 5 and 6 and the not true findings on the two multiple victim allegations made in connection with counts 1 and 2. Before resuming deliberations on February 13, the jury was reinstructed on how it should approach deliberations with an open mind. We presume the jurors followed the instructions as given, and have every reason based on the record to determine that they did so. (People v. Cain (1995) 10 Cal.4th 1, 34.) We find no substantial likelihood that one or more jurors were actually biased against defendant. The trial court therefore did not abuse its discretion by keeping Juror No. 9 on the jury. The Trial Court Committed Section 654 Sentencing Error.
Defendant contends the trial court violated section 654 by imposing consecutive sentences of four years and eight months, respectively, for the assault with a deadly weapon and criminal threats against S.V. He argues the assault and criminal threats were part of a course of conduct committed with the single criminal intent of facilitating the commission of the sex offenses, and that S.V.'s testimony supplied not only the gravamen of defendant's convictions for assault and criminal threats, but also the force and fear element of forcible rape and forcible oral copulation. " ' "[I]ntent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for which he was sentenced." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 886; accord, People v. Jackson (2016) 1 Cal.5th 269, 354.) We review the court's implicit or explicit factual finding whether there was a single criminal act or a course of conduct with a single criminal objective under the substantial evidence standard. (People v. Coleman (1989) 48 Cal.3d 112, 162.) We review the trial court's conclusions of law de novo. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.)
Section 654 provides in pertinent part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." However, because "[f]ew if any crimes . . . are the result of a single physical act," our Supreme Court in Neal v. State of California (1960) 55 Cal.2d 11 (Neal) interpreted section 654 as applying " 'not only where there was but one "act" in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.' " (Neal, at p. 19; accord, People v. Capistrano, supra, 59 Cal.4th at p. 885.) "[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citations.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The California Supreme Court has criticized this test but has never overruled it. (See generally People v. Latimer (1993) 5 Cal.4th 1203, 1207-1212.) More recently, the court has limited application of the intent and objective test, focusing its analysis instead on whether a cluster of offenses arises out of a single act, and disapproving some earlier cases which, instead of finding a single act, relied on the intent and objective test created by Neal for application to a course of conduct scenario. (People v. Jones (2012) 54 Cal.4th 350, 358-359 [disapproving People v. Harrison (1969) 1 Cal.App.3d 115 and overruling In re Hayes (1969) 70 Cal.2d 604]; see People v. Correa (2012) 54 Cal.4th 331, 338, 344 [disapproving dictum in Neal, supra, 55 Cal.2d at p. 18, fn. 1]; People v. Sanders (2012) 55 Cal.4th 731, 742 [same]; People v. Corpening (2016) 2 Cal.5th 307, 313 [test for whether defendant committed "a single physical act" under § 654 "depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses."].)
The parties' briefs ignore these recent developments and do not address whether the sex offenses, criminal threats, and assault comprised a single completed actus reus for the purposes of the section 654 analysis. We therefore limit our discussion to whether substantial evidence in the record supports the conclusion that defendant "harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other," such that "he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison, supra, 48 Cal.3d at p. 335.)
The physical assault charged in count 3 occurred when S.V. attempted to escape defendant between the act of forcible copulation and the act of forcible rape. Defendant, who held the knife in his hand from the time he forced his way into S.V.'s room, stabbed S.V. in the thumb as they struggled on the floor, as S.V. tried to get away, and defendant prevented her from doing so. Defendant argues the assault was merely incidental to the sexual assault and was the means of facilitating his objective of accomplishing the rape. The Attorney General argues defendant committed the assault with the separate intent and objective of preventing S.V. from fleeing the room. While we can agree the immediate object of the assault was to prevent S.V. from fleeing, that was not an end in itself: the sole object of preventing S.V. from fleeing was to accomplish the rape. In closing argument, the prosecutor argued: "With regards to the sexual assault counts to [S.V.], and [S.V.] only, you have the great bodily injury, and that's the cut on the hand. Okay. This is one continuous course of action. He goes in, tries to get her to comply with the sex demand, he struggles with her and she gets cut." Under these circumstances, substantial evidence does not support the court's implied finding that defendant "harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other" when he assaulted S.V. (People v. Harrison, supra, 48 Cal.3d at p. 335.)
Similarly, after forcing his way into S.V.'s motel room, wielding a knife, defendant threatened to kill S.V. if she did not have sex with him. She recalled defendant threatened to kill her "a couple of times through the whole thing." After the rape, defendant rifled through S.V.'s purse, took down her information, and threatened "it's going to be all bad" if she called the police. After leaving the motel room together, S.V. walked quickly away from defendant, towards the motel's office. Defendant called after her, "[Y]ou better not tell the police."
Defendant argues the criminal threats charged in count 3 are the threats to kill S.V., which defendant made while wielding a knife as he forced himself into S.V.'s room and during the sexual and physical assaults themselves. He argues the implied threat of something "bad" if she called the police, and the reminder not to call the police while she walked to the motel office, are not the threats which formed the corpus of the criminal threats charge. The Attorney General acknowledges the threats to kill S.V. evince an intent to overcome S.V.'s resistance to the sexual assault, but argues defendant's implied threats, "[I]t's going to be all bad" and "[Y]ou better not tell the police," show an independent intent to prevent S.V. from reporting the attacks to the police.
The problem with this argument is twofold. First, the latter amorphous threats were not charged as the corpus of the section 422 offense; second, they were not argued to the jury as the corpus of the offense. Count 5 charged defendant with a violation of section 422 "in that said defendant did willfully and unlawfully threaten to commit a crime which would result in death or great bodily injury to S.V., with the specific intent that the statement be taken as a threat." (Italics added.) From this charging language, we can only infer the explicit threats to kill S.V. were the basis for the charge, and not the implied threats to do something bad if S.V. went to the police. In fact, the prosecutor never argued the implied threat, "it's going to be all bad," was a basis for the section 422 charge at all. Instead, the prosecutor referred only to the explicit threats to kill S.V., but she did so by repeatedly misstating the evidence. Thus, the prosecutor argued to the jury that when defendant "wrote down her address" he said, "[I]f you tell the police, I'm going to kill you." She also argued: "The criminal threats, those are the threats to kill to both victims, I'm going to kill you. If you call the police, I'm going to kill you." Finally, she argued: "He threatens her taking down the info saying call the cops and I'm going to kill you." Despite the prosecutor's argument, the record is clear that S.V. did not testify defendant explicitly threatened to kill her when he took down her information, although she did testify he explicitly threatened to kill her before and during the physical and sexual assaults. In our view, the charging document and the evidence adduced at trial establish that the charged section 422 offense related to the explicit threats to kill S.V. defendant made before and during the assaults with the intent and objective of frightening S.V. into compliance so that he could accomplish the sexual offenses. Viewing the evidence in the light most favorable to the trial court's ruling, we cannot say substantial evidence supports a separate sentence for the section 422 conviction.
"When section 654 applies, the proper procedure is to impose sentence on both counts and stay execution of sentence on one of the counts. [Citations.] The stayed sentence becomes permanent upon completion of the sentence on the other count . . . . [Citation.] However, should the conviction on the count for which sentence was imposed be overturned, the sentencing court then merely lifts the stay on the section 654 count." (People v. Sanchez (2016) 245 Cal.App.4th 1409, 1415.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for correction of section 654 error in the sentences on count 3 (assault with a deadly weapon) and count 5 (criminal threats).
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.