P. v. A.P.









Filed 7/25/12
P. v. A.P. CA1/5











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE









THE PEOPLE,



Plaintiff
and Respondent, A129717



v. (>Alameda> >County>

Super.
Ct.> No.
CH43763)

A.P.,



Defendant
and Appellant.

_____________________________________/



Appellant A.P. appeals from a
judgment entered after a jury convicted him on one count of href="http://www.fearnotlaw.com/">forcible sodomy (Pen. Code, § 286,
subd. (c)(2)), href="#_ftn1" name="_ftnref1" title="">[1]
four counts of forcible rape (§ 261, subd. (a)(2)), one count of href="http://www.fearnotlaw.com/">assault with a deadly weapon (§ 245,
subd. (a)(1)), one count of criminal threats (§ 422), one count of href="http://www.mcmillanlaw.com/">kidnapping to commit rape (§ 209,
subd. (b)(1)), and one count of first
degree robbery (§§ 211, 212.5, subd. (a)). He contends his conviction must be reversed
because (1) the trial court erred when it conducted certain pretrial hearings,
and (2) the court erred when sentencing him.
We conclude the court committed a sentencing
error and will remand for further proceedings. In all other respects, we will affirm.

>

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was convicted of brutally assaulting
and raping his girlfriend, Maria Doe.

Appellant met Maria in September
2003. The relationship was good
initially and Maria believed appellant was “very caring.” But that did not last. Appellant became possessive and he started to
question everything Maria did.

An incident in May 2004 was the
tipping point. Appellant and Maria went
to a hotel where they engaged in consensual intercourse. Appellant left for a few minutes and returned
with a woman named Linda. At that point
appellant’s demeanor changed. He became
angry and accused Maria of flirting with another man. Appellant spat in Maria’s face, poured a
bottle of water over her, and put his hand over her mouth and nose until she
began to black out. Appellant then
engaged in intercourse with Maria. The next
morning, appellant took Maria home.

Maria was in a state of shock. She was terrified because appellant knew
where she lived and worked. She did not
want to tell her family what happened because she was afraid appellant might
hit her mother or sisters.

Later that same month another
incident occurred. Appellant again asked
Maria to get a hotel room. She did so
and this time she took her five-year-old twins with her. Appellant arrived at the hotel followed by
Linda a few minutes later. He was angry
and punched Linda in the face. Appellant
then turned his attention to Maria. He
held her by the arms and began to hit her in the face too. Maria’s son tried to intervene telling
appellant, “Don’t hit my mommy.”
Appellant told the child to, “Shut up and sit down.” Appellant had Linda take the children out of
the room. He accused Maria of
infidelity, pushed her to the bed, removed her pants, and sodomized her. Appellant then removed his penis, announced
to Maria that she was “going to get an infection” and engaged in vaginal
intercourse with her. During the
incident appellant remarked that Maria was his “property.”

In early June 2004, another incident
occurred. Appellant came to Maria’s
house and again accused her of infidelity.
Three times appellant told Maria to stand and then struck her so she
fell. After the last blow, appellant
changed his method of attack. When Maria
would stand, he would kick her in her legs and “vaginal region.” This occurred about a dozen times. Appellant changed tactics yet again and began
biting and punching Maria on her face.

Maria made her way to the
kitchen. Appellant seized a knife, put
it against Maria’s thumb and threatened to “cut [her] fucking thumb off to the
tendon.”

Maria stumbled toward the living
room. Appellant yanked her pants off,
put her on the couch and started having sex with her. Maria saw her son was watching. She ordered him to leave.

Appellant told Maria to get a taxi
so they could go to her apartment. Maria
said she did not want to go, but appellant insisted telling her, “you’re not
going to fuck up my life.”

Appellant and Maria went to her
apartment. Appellant left for a few
minutes and then returned with Linda.
Maria slept briefly and when she awoke, appellant ordered her to go to
the bedroom, drop her pants, and turn around.
Maria did as she was told and appellant engaged in intercourse with
her. Appellant again told Maria she was
his “property” and that she was “going to do what [she was] told.”

The next morning, appellant again
accused Maria of cheating. He punched
Maria in the forehead, chest, and arms, each time striking harder and harder
blows. Appellant had Maria lie on the
floor and pulled off her pants. Maria
protested but appellant told her, “Do what you are told.” Appellant then had intercourse with Maria.

Appellant and Linda discussed how
much money they could get using Maria’s bank card. Appellant ordered Maria to give him her
PIN. Maria complied. Appellant then gave Maria’s card to Linda who
withdrew $300 from Maria’s account.

Maria’s ordeal finally came to an
end when she called her family and told them what was happening. An uncle called the police.

Based on these facts, an information
was filed charging appellant with the offenses we have set forth above. As is relevant here, the information also
alleged appellant had used a knife when committing criminal threats within the
meaning of former section 12022, subdivision (b)(1).

After extensive pretrial hearings,
the case proceeded to a jury trial where the prosecution presented the evidence
we have set forth above. The prosecutor
also presented evidence from two women whose testimony suggested appellant’s
abuse of Maria was part of a familiar pattern.

Linda Doe testified that she met
appellant in 2000 and, in the beginning, he was nice. But as with Maria, that quickly changed. Appellant started becoming abusive and he
accused Linda of cheating. The verbal
abuse then turned physical. On one
occasion, appellant hit Linda in the face with his boots and caused such
extensive bruising that Linda could not recognize herself. On another occasion, appellant injected water
under Linda’s skin causing a “bubble.”
Appellant thought it was funny.
On yet another occasion, appellant sodomized Linda while another man was
present. Appellant then “shoved his
fist” up Linda’s vagina and anus several times using what the other man
described as a “piston type method.”
Appellant was a weightlifter who weighed almost 300 pounds. He used so much force that Linda started to
bleed.

Another woman, A.Doe, testified
appellant acted similarly with her. A.
met appellant when she was 18 and, in the beginning, appellant was nice. But appellant changed. He accused A. of cheating and he began to
abuse her physically. Appellant would
“smack [A.] around” and “kicked [her] in [her] stomach.” The beatings caused black eyes and bruises on
her body. At one point, A.’s face was so
swollen, it “looked like a pumpkin.”
Appellant also assaulted A. sexually forcing her to engage in vaginal
and anal intercourse. When A. would
object, appellant would tell her to “shut up” and that if she resisted, he
would “break [her] jaw.”

The jurors considering this evidence
convicted appellant on all counts and found the knife use allegation to be
true. Subsequently, the court sentenced
appellant to a determinate sentence of 36 years plus a consecutive term of 7
years to life for a total term of 43 years to life.

>

DISCUSSION

[REDACTED]href="#_ftn2" name="_ftnref2" title="">[2]>

B.
Sentencing Issues

1.
Sentence on Kidnapping to Commit Rape

Appellant was convicted on count 7
of violating section 209, subdivision (b)(1), kidnapping for rape. A violation of that statue is punishable by a
sentence of “life with the possibility of parole.” (§ 209, subd. (b)(1).) But the trial court did not impose a sentence
of life with the possibility of parole.
Instead, it sentenced appellant to a term of seven years to life in
prison.

Appellant now contends the trial
court erred because the sentence it imposed was unauthorized. We agree.
An appellate court may correct a sentence that is not authorized by law
(In re Hoddinott (1996) 12 Cal.4th
992, 995-996, fn. 2), and the sentence the court imposed is simply not the
sentence that is required by the statute appellant violated. We will order the appropriate modification.

The People argue the sentence
imposed was correct citing People v. >Jefferson> (1999) 21 Cal.4th 86 (>Jefferson). In >Jefferson>, the defendant was convicted of attempted
premeditated murder (§§ 664, subd. (a), 187, 189), an offense that carries
a sentence of imprisonment in the state prison for life. (Jefferson,
at pp. 90, 93.) The defendant also
admitted one prior strike within the meaning of the three strikes law (>id. at p. 91), and the question on
appeal was how to double a sentence that has no fixed term. Our Supreme Court resolved that conundrum by
ruling that for purposes of doubling an indeterminate

>

sentence under the
Three Strikes law, the seven-year minimum term for purposes of parole
applied. (§ 3046, subd. (a)(1).) (Id. at
p. 96.) In selecting that minimum term,
the court relied on express language in the three strikes law which states,
“‘the determinate term or minimum term
for an indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.’”
(Jefferson>, at p. 93, citing § 667, subd. (e)(1).)

Here, we are not called upon to
determine what sentence is appropriate when a statute requires that an
undescribed minimum term be doubled.
Rather, appellant was convicted of committing a crime that has a fixed
and definite sentence: life with the
possibility of parole. We conclude the
court erred when it imposed a different sentence.

2.
Whether the Sentence Violates Section 654

Appellant contends a portion of the
sentence the court imposed violates section 654. To put this argument in context, further
background is necessary.

The evidence in this case shows
appellant kidnapped Maria when he forced her to leave her house around 6:00 a.m. on June 4, 2004.
Traveling by taxi, they stopped off at a bank and then went to an
apartment Maria had rented. Appellant
left for a few minutes and returned with Linda.
He ordered Maria to lie down with her daughter and while she did so,
appellant and Linda discussed how badly appellant had beaten Maria. Maria fell asleep eventually. When Maria awoke later that day, appellant
told her to go into the bedroom. There,
appellant ordered Maria to drop her pants and raped her from behind.

Appellant spent the remainder of the
day with Maria and Linda and all of them went to sleep that night. The next morning on June 5,
2004, appellant
ordered Linda to take Maria’s children to the park. Maria was afraid because she knew what
appellant was planning. After Linda left
with the children, appellant began to abuse Maria verbally and physically. He punched Maria many times and then “yanked
off [her] pants and started having sex with [her] . . . .”

Based on this evidence, the jurors
convicted appellant on count 7 of kidnapping for rape, on count 8 for forcible
rape committed on June 4, 2004, and on count 9 for forcible rape committed on
June 5, 2004. Subsequently, the court sentenced appellant
to life in prison on count 7 and to consecutive six-year terms on counts 8 and
9.

Appellant now contends the trial
court violated section 654 when it imposed consecutive sentences on counts 8
and 9 because both offenses arose out of the kidnapping offense. This is so, appellant argues, because the
“evidence showed that he forced Maria to go to the Hayward apartment and that, while she was held against
her will, he raped her twice.”

Section 654 prohibits punishment for
two offenses that arise from the same act.
(Neal v. State of California (1960)
55 Cal.2d 11, 18, disapproved on other grounds in People v. Correa (June 21, 2012, S163273) ___ Cal.4th ___.) “Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.” (>Id. at p. 19.) On the other hand, if the defendant
entertained multiple criminal objectives that were independent and not
incidental to each other, he or she “may be punished for each statutory violation
committed in pursuit of each objective” even though the violations were
otherwise part of an indivisible course of conduct. (People
v. Harrison (1989) 48 Cal.3d 321, 335.)
Whether section 654 applies in a given case is a question of fact for
the trial court, whose ruling will be affirmed on appeal so long as it is
supported by substantial evidence. (>People v. Hutchins (2001) 90 Cal.App.4th
1308, 1312.)

We conclude the trial court did not
err when it imposed separate sentences for the two rapes appellant has
identified. A course of conduct that is
directed toward a single objective may give rise to multiple punishment if it
is divisible by time (People v. Beamon (1973)
8 Cal.3d 625, 639, fn. 11; People v.
Andra (2007) 156 Cal.App.4th 638, 640; People
v. Gaio (2000) 81 Cal.App.4th 919, 935; People
v. Kwok (1998) 63 Cal.App.4th 1236, 1253), and the offenses appellant
committed were divisible by time The
evidence shows appellant kidnapped Maria intending to rape her during the early
morning hours on June 4, 2004.href="#_ftn3"
name="_ftnref3" title="">[3] But appellant did not rape Maria immediately
or even soon thereafter. Rather, he
stopped off at a bank, had discussions with Linda, ordered Maria to sleep with
her daughter, and allowed Maria to sleep.
Only later, after all those events had occurred, did appellant rape
Maria. The second rape was even more
remote in time. It occurred the next day
after appellant and Maria had a full night’s sleep. The trial court noted this time sequence and
imposed separate sentences for each of appellant’s offenses because “each was
broken up by a substantial passage of time, there is just no question that they
were all separate.” The trial court’s
ruling on this point is reasonable and is supported by substantial evidence. We conclude the court did not err when it
imposed separate sentences on counts 8 and 9.

Appellant’s reliance on >People v. Latimer (1993) 5 Cal.4th 1203
(Latimer) does not convince us a
different conclusion is warranted. In >Latimer, the defendant and the victim
were running errands together. At one
point, the defendant drove to a remote area where he assaulted and raped the
victim. Afterwards, he drove to a second
location and raped her again. (>Id. at p. 1206.) The trial court imposed separate punishments
for the kidnapping and the two rapes.
However, the appellate court held that section 654 barred separate
punishments for the kidnapping and rapes because the kidnapping was carried out
solely for the purpose of committing the two rapes. (Id.
at pp. 1206-1207.) Our Supreme Court agreed
finding no evidence that the defendant had “any intent or objective behind the
kidnapping other than to facilitate the rapes.”
(Id. at p. 1216.)

The situation here is different from
that presented in Latimer because
there is no indication that in Latimer
a significant amount of time elapsed between the kidnapping and the two
rapes. Here, by contrast there was a
lengthy period of time between the kidnapping and the first rape, and an even
more lengthy period of time between the kidnapping and the second rape. We conclude Latimer is not controlling under the different facts presented
here.

3.
Whether the Court Erred by Failing to Sentence on Counts 4 and 5

The final issue we must address has
been raised by the People and is based on the following facts.

At one point during the sentencing
hearing, the trial court said section 654 applied to appellant’s conviction on
count 4 for assault with a deadly weapon, and count 5 for criminal
threats. As the court explained, “Under
[section] 654, you can only be sentenced as to one. The 245 with a knife, the threats to cut off
the thumb at the same time, additionally, with the one-year knife enhancement,
appear to be describing in different ways the same conduct. If they are not the primary counts, then I could
only charge one-third the midterm as to each.
[¶] In light of the willingness to make each sexual assault count
separate, I will be – I would intend to run those concurrently.” Later after specifying the terms for the
other charges, the court returned to counts 4 and 5 stating as follows: “if I had discretion to treat them
separately, I believe under 654 I do not, I would threat them separately . . .
the threats simply merge into the actual horror of the beatings and ongoing
threats, under 422, the threat with a knife – I was going to pick a primary
term, I simply picked the one that gave more time, and that’s why it wasn’t the
245, which is just as horrendous as he’s waving a knife and threatening great
bodily injury, but in the reality of everything else, because I have done
consecutive sentences, and with everything else and the reality of the ongoing,
repeated, savage beatings that accompanied each rape and the sodomy, the
reality is this really does merge, just part of all that. [¶] So I will not give him a third of
the midterm there.”

The abstract of judgment interpreted
these comments to mean the court did not impose any sentence on counts 4 or 5
and that a stay under section 654 was in effect.

The People now argue the trial court
erred when it failed to impose sentence on counts 4 and 5. We agree.
“[W]hen a trial court determines that section 654 applies to a
particular count, the trial court must impose sentence on that count and then
stay execution of that sentence. There
is no authority for a court to refrain from imposing sentence on all counts,
except where probation is granted.” (>People v. Alford (2010) 180 Cal.App.4th
1463, 1466.) We will remand the case to
the trial court so that it can impose sentence on both counts.

Appellant argues no remand is
necessary because “[t]he trial court made its intent clear.” It “sentenced appellant to concurrent terms
for the assault and criminal threat counts.”
It is not at all clear that is what happened. One way to read the record is that the court
intended to impose concurrent terms for the assault and criminal threat
counts. Another is that the court
intended to impose sentence on the criminal threat count and then impose but
stay a sentence on the assault with a deadly weapon count. In any event, appellant’s argument is
unpersuasive because there is nothing in the record that indicates the court
imposed any sentence on counts 4 and
5 as it was required to do. We will
remand so the court can do so.

DISPOSITION

The case is remanded to the trial
court with directions to impose sentence on counts 4 and 5, and to modify the
sentence imposed on count 7 to life in prison with the possibility of parole.

In all other respects, the judgment
is affirmed.

>









_________________________

Jones,
P.J.





We concur:



_________________________

Needham, J.



_________________________

Bruiniers, J.



























A129717