P. v. Cortez
Filed 1/24/14 P. v. Cortez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
RUDY
A. CORTEZ,
Defendant and Appellant.
B245332
(Los
Angeles County
Super. Ct. No.
BA375790)
APPEAL from
a judgment of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Affirmed as modified.
Daniel G.
Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie A. Miyoshi and Connie H. Kan, Deputy Attorneys
General, for Plaintiff and Respondent.
Following a jury trial, defendant Rudy A. Cortez was
convicted of 23 counts of forcible rape, forcible oral copulation, and forcible
sodomy, and five counts of kidnapping to commit another crime.
true the special allegations that subjected defendant to the “One Strike†law.
Defendant received a sentence of 600 years to life under that law.
In this
appeal from the judgment, defendant raises issues of
error, failure to instruct on lesser included offenses, improper admission of
evidence, and cruel and unusual punishment.
Although we reject those contentions, we modify the judgment to correct the
sentencing errors raised by the Attorney General.
BACKGROUND
The prosecution
alleged that between November 18, 2008, and September 8, 2010, defendant
sexually assaulted the following women at knifepoint: (1) Dominique S. on November 18, 2008 (counts
12, 13); (2) Leticia K. on June 20, 2010 (counts 15-16, 19, 17-18, 20); (3) A.J.
on July 30, 2010 (counts 27-29); (4) Jayme M. on August 1, 2010 (counts 21-24);
(5) D.S. on August 19, 2010 (counts 8-9); (6) L.H. (referred to in the clerk’s
transcript as Alyssa H.) in September 2010 (counts 38-39, 41); (7) Erica W.
(referred to in the clerk’s transcript as Erika W.) on September 1, 2010
(counts 4-6); and (8) Nancy M. on September 8, 2010 (counts 1-3).
The police
arrested defendant while the eighth victim, Nancy, was still in his car. Shortly after midnight on September 8, 2010,
Los Angeles Police Department Officer Samuel Huizar and his partner were
patrolling an area known for high prostitution and narcotics activity when they
noticed a gray Mustang that was double-parked with its engine running and windows
fogged. While Huizar was speaking with
the driver (defendant), the front passenger (Nancy) began screaming for help. Both were ordered out of the car.
When Nancy
exited the vehicle, she was crying and holding a bra in her hands. Defendant was sweating profusely and his belt was
undone, his shirt was untucked, and his pants were unzipped. Nancy
gave a statement that led to the recovery of a knife, handcuffs, and condoms
from a compartment in the driver’s side door. Defendant was arrested and his car was
impounded. Nancy
was taken to the hospital for a sexual assault examination.
A further
search of defendant’s car led to the recovery of personal items belonging to the
other seven victims: (1) Dominique’s
driver’s license; (2) Leticia’s cell phone, identification card, and Social
Security card; (3) A.’s friend’s driver’s license; (4) Jayme’s
identification card; (5) D.’s identification card, Social Security card, and
driver’s permit; (6) L.’s identification card, Social Security card, knife, and
hoop earrings; and (7) Erica’s identification card and cell phone.
After
defendant was given a Miranda
he was asked about the “different female identifications†found in his car. Initially, he said the identifications
belonged to “[g]irls that I have chilled with†and “[g]irls that I’ve kicked it
with.†Later in the interview, he admitted
that the “same thing happened†with each of the women. He stated:
“I picked them up, too.†“I just
picked them up. Same thing happened.†“All the girls are the same. All the girls are the exact same.†During the last “seven or eight years,†there
were “[e]ight to 10†“girls†and “I picked them up.†Eventually, defendant admitted that he had sex
with all of the women while he held a knife to their throats. He stated, “I picked them up and drove to a —
to a location where ever it was and — and they all performed sexual acts on me
while I had a knife on their throat.†When
asked whether the women had wanted him to use a knife, he admitted, “No, they
didn’t.†He explained that he used the
knife because he “didn’t want to pay for it.†He said that he told one of the women that he
was a sheriff, he handcuffed “the last two†women (Erica and Nancy), and he blindfolded
all of them with their bras “[e]very time they got out of the car.â€
At trial,
seven of the eight victims testified that defendant had sexually assaulted them
at knifepoint. They uniformly testified
that defendant had forced them to engage in sexual acts by holding a knife to
their throats and threatening to injure or kill them if they failed to comply. Only one victim, Erica, did not testify at
trial. Over defendant’s objection, the
trial court admitted Erica’s preliminary hearing testimony after finding that she
was unavailable as a witness. Other facts
relevant to the issues on appeal will be discussed later in this opinion.
DISCUSSION
I. Insufficient Evidence
Defendant’s
claim of insufficient evidence is based on the testimony of five victims
(Nancy, D., Dominique, Jayme, and L.) that they were working as prostitutes when
they initially got into defendant’s car to perform sexual acts for a fee. Although defendant concedes that all of the
women objected to his use of a knife, he claims that as to the five who were
working as prostitutes, their objections to his use of the knife were
insufficient to negate their prior consent to the sexual acts. Accordingly, he contends, the evidence failed
to show that “the sexual acts were non-consensual.†We conclude the contention lacks merit.
of Review
“In
318-319, the United States Supreme Court held, with regard to the standard on
review of the sufficiency of the evidence supporting a criminal conviction,
that ‘[t]he critical inquiry . . . [is]
. . . whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt. . . . [T]his
inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt.†[Citation.] Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
found the essential elements of the crime beyond a reasonable doubt.’ An identical standard applies under the
California Constitution. (
576.) ‘In determining whether a
reasonable trier of fact could have found defendant guilty beyond a reasonable
doubt, the appellate court “must view the evidence in a light most favorable to
respondent and presume in support of the judgment the existence of every fact
the trier [of fact] could reasonably deduce from the evidence.â€â€™ (Ibid.)†(People
v. Staten (2000) 24 Cal.4th 434, 460.)
“Conflicts and even testimony which is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is
the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.]†(People
v. Maury (2003) 30 Cal.4th 342, 403.)
A reversal for insufficient evidence “is unwarranted unless it appears ‘that
upon no hypothesis whatever is there sufficient substantial evidence to supportâ€
the jury’s verdict. (
331.)
B. Forcible Rape, Oral Copulation, and
Sodomy
Forcible
rape is defined as an act of sexual intercourse that “is accomplished against a
person’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another. (§ 261, subd. (a)(2).)
Forcible
oral copulation is defined as an act of oral copulation that is “accomplished
against the victim’s will by means of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury.â€
(§ 288a, subd. (c)(2)(A).)
Forcible
sodomy is defined as “an act of sodomy when the act is accomplished against the
victim’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the victim or another person.†(§ 286, subd. (c)(2)(A).)
Lack of
consent is an element of the crimes of forcible rape, forcible oral copulation,
and forcible sodomy. “In prosecutions
under Section 261, 262, 286, 288a, or 289, in which consent is at issue, ‘consent’
shall be defined to mean positive cooperation in act or attitude pursuant to an
exercise of free will. The person must
act freely and voluntarily and have knowledge of the nature of the act or
transaction involved. [¶] A current or previous dating or marital
relationship shall not be sufficient to constitute consent where consent is at
issue in a prosecution under Section 261, 262, 286, 288a, or 289.†(§ 261.6.)
“Actual
consent must be distinguished from submission.
[A] victim’s decision to submit to an attacker’s sexual demands out of
fear of bodily injury is not consent [citations] because the decision is not
freely and voluntarily made (§ 261.6). A
selection by the victim of the lesser of two evils—rape versus the violence
threatened by the attacker if the victim resists—is hardly an exercise of free
will. [Citation.]†(People
v. Giardino (2000) 82 Cal.App.4th 454, 460, fn. 3.) However, “[i]t is a defense that the accused
reasonably and in good faith believed the woman engaged in the act
consensually. [Citation.]†(People
v. Ireland
188 Cal.App.4th 328, 336 (
Testimony of the Five Victims Regarding the Use of the Knife
At trial,
the five women provided similar testimony that they were forced at knifepoint
to comply with defendant’s demands in order to avoid being injured or killed.
got into defendant’s car and agreed to perform sexual acts for a fee, defendant
suddenly put a knife to her throat and “told [her] that [she] was going to do
whatever he told [her] to do or else he would cut [her] face.†Nancy
was scared and believed that defendant, who “seemed really angry,†would carry
out his threats if she failed to do what he wanted. When the police arrived, she was crying and
calling for help.
got into defendant’s car and agreed to perform sexual acts for a fee, defendant
put a knife to her neck, said he was a police officer, removed her clothing,
handcuffed her wrists behind her back, and told her to do everything he said or
he would kill her. D. felt “helplessâ€
and “scared.â€
and agreed to perform sexual acts for a fee, defendant put a knife to her neck
and said something that made her “really scared for [her] life. [She] didn’t know if [she] was going to live
to see another day.†“[She] said that [she
had] a son and [she] want[ed] to live to see [her] son.†“[She] just wanted to do whatever [she] had to
do to live to see [her] son.â€
agreed to perform sexual acts for a fee, they had consensual sex and defendant gave
her $100. However, defendant suddenly pulled
out a knife and held it to her neck and said, “you know what’s going on, don’t
act stupid.†He warned her to be quiet because
he did not care if she was hurt or killed. He promised that if she made “him come again,â€
he would let her go. After forcing her
to hand over her identification, cell phone, and the $100 he had given her, he told
her to “suck his dick†while he drove the car.
When she refused and started to cry, he “hit [her] in the back of the
head with the knife,†which made her realize that she had better “do everythingâ€
that he told her to do. After defendant
stopped the car, he raped and sodomized
her, which made her cry in pain. However,
she tried to be quiet because she “didn’t want him to hurt [her] with the
knife.†He then drove her to another location
where he handcuffed her wrists behind her back and raped her while they stood next
to the car.
got into defendant’s car and agreed to perform sexual acts for a fee, he put
a knife to her throat and told her not to scream. He handcuffed her wrists behind her back and said
that he was an undercover sheriff. He
also claimed that he was a pimp and that she had better stop working on his
girl’s corner. He took her
identification card and asked a lot of questions. He turned the car light on and showed her some
blood on his knife and said, “So don’t try anything stupid.â€
Evidence Supports the Verdict
Defendant
argues that because his use of the knife was a collateral matter—which he
compares to playing loud or objectionable music during sex—the victims’ objections
to the “knife did not communicate a withdrawal of consent to the charged sexual
acts.†According to defendant, “[i]f the
woman’s objection to the music is strong enough to make her withdraw consent to
performing a sexual act, the law requires that she must communicate an
objection to the sexual act, rather than merely object to the music. If she only objects to the music, she cannot
claim that the sexual act she performed was without consent.†The contention is meritless.
The evidence
fails to support defendant’s claim that the knife was a collateral matter. On the contrary, the evidence shows that the
knife was integral to the commission of forcible rape, forcible oral
copulation, and forcible sodomy.
This case is
factually similar to Ireland
which the victims had also agreed to perform sexual acts for a fee. As in this case, the defendant in
produced a knife and the victims were frightened into submission by actual or
implied threats of violence. The
defendant in Ireland
the express or implied threat that, if they did not continue to cooperate even
after he produced the knife and held it to their throats, he would do them
harm. As to the victim V.B., the
testimony was that appellant told her ‘just to cooperate’ and she ‘won’t get
hurt.’ When the victim J.W. asked
appellant what he was doing with the knife, he told her to ‘“shut up.â€â€™ She did, because she was afraid he would
otherwise ‘slice [her] neck off.’ He
told her not to scream or make any sudden movements and he would not use the
knife. When the victim A.H. reacted to
appellant putting the knife to her throat by saying ‘no,’ appellant responded
by instructing her to put a condom on his penis, remove her pants, and get on
her knees. She complied because she
thought he would otherwise kill her. To
the victim C.S., appellant said ‘do what I say and you won’t get hurt.’ She cooperated out of fear.†(Ireland,
supra, 188 Cal.App.4th at p.
337.)
As the appellate
court explained in Ireland,
where a woman’s cooperation is induced by force or fear, she is not required to
communicate her lack of consent, even though she initially had agreed, before
being threatened with a knife, to perform sexual acts for a fee: “The essence of consent is that it is given
out of free will. That is why it can be
withdrawn. While there exists a defense
to rape based on the defendant’s actual and reasonable belief that the victim
does consent (People v. Dominguez
(2006) 39 Cal.4th 1141, 1148; People v.
Mayberry [(1975)] 15 Cal.3d [143,] 153-158), we do not require that victims
communicate their lack of consent. (See
direct testimony but may be inferred from use of force or duress].) We certainly do not require that victims
resist. (People v. Griffin (2004)
33 Cal.4th 1015, 1024-1025.) Yet this is
what appellant proposes here. At the
time of the offenses, appellant told his victims to cooperate or be hurt. Now he contends they were required to express
to him their lack of cooperation. That
cannot be the law. When appellant used
the knife and expressly or impliedly threatened his victims, and in the absence
of any conduct by the victims indicating that they continued to consent, the
previously given consent no longer existed, either in fact or in law. (Cf. People
v. Washington (1962) 203 Cal.App.2d 609, 610 [‘[c]onsent induced by fear is
no consent at all’].)†(
Similarly, in
this case each victim’s cooperation was induced by express or implied threats
of bodily harm through the use of a knife and, in some cases, handcuffs and
even a blow to the head. Nancy
was threatened at knifepoint that she would suffer a cut on her face if she did
not do what she was told. D. was
handcuffed and warned at knifepoint that she would be killed unless she
complied. Dominique was threatened at
knifepoint in a way that made her fear for her life. Jayme was handcuffed, hit on the back of the
head with a knife, and threatened with death.
L. was shown a bloody knife and told “don’t try anything stupid.†We conclude that because “consent induced by
fear is no consent at all†(People v.
Washington, supra, 203 Cal.App.2d
at p. 610), the sexual acts that the women were forced to commit at knifepoint
were not consensual and, therefore, the verdicts are supported by substantial
evidence.
the Record
Defendant
contends that the trial court committed instructional error. He argues that “[t]he instructions on
withdrawal of consent, to wit, CALCRIM Nos. 1000, 1015 and 1030, were
erroneously limited to withdrawal of consent occurring ‘during the act,’ which
was misleading because it implied that the same rules do not apply where
consent is withdrawn before the sexual act.
Because withdrawal of consent was the key issue in the case, the
instructional error cannot be deemed harmless.†(Internal record references omitted.)
As we
understand the contention, defendant is objecting to the portion of CALCRIM No.
1000 that applies when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act, but the defendant forcibly
continues despite the objection.
points out, the trial court omitted that portion of the instruction and
replaced it with a modification based on
prosecution’s evidence that, notwithstanding the victims’ prior consent to
perform sexual acts for a fee, they were suddenly threatened with a knife and
told that they would be injured or killed if they did not do what they were
told. The modified instruction correctly
reflected the evidence that defendant employed the knife and threats of
physical violence before committing the
sexual acts alleged in counts 1-3, 5-9, 12-13, 16-20, 22-25, 28-29, and 38-39. Accordingly, the modified instruction did not
erroneously suggest, as defendant contends, that consent was withdrawn
defendant challenges on appeal was not given below, we reject his contention as
unsupported by the record.
Battery as Lesser Included Offenses of the Forcible Sex Crimes
Defendant contends the trial court
erroneously failed to instruct on simple assault and battery
as lesser included offenses of forcible rape, forcible oral copulation, and
forcible sodomy. He argues that even
though the objections to the use of the knife were insufficient to withdraw the
victims’ consent to perform sexual acts, the victims are “still protected by
laws against assault and battery.†He reasons
that “[b]ecause appellant assaulted each victim with a knife, it was clear that
he was guilty of something†and “it was unfair to give the jury an
all-or-nothing choice. Instructions on
assault and battery would have given the jury the opportunity to hold appellant
responsible for his use of the knife, which was the true nature of appellant’s
crimes.†We are not persuaded.
Once again, defendant bases his contention on
the erroneous premise that the knife was a “collateral†matter that had no
effect on the victims’ prior consent. As
we previously discussed, the law is to the contrary. The law provides that “[w]hen appellant used
the knife and expressly or impliedly threatened his victims, and in the absence
of any conduct by the victims indicating that they continued to consent, the
previously given consent no longer existed, either in fact or in law. [Citation.]â€
(Ireland, supra, 188 Cal.App.4th at p. 338, fn. omitted.)
“The court is required to instruct on
lesser included offenses only when the evidence raises a question whether all
the elements of the charged crime have been proved and where a jury could
reasonably find that the defendant committed the lesser but not the greater
crime. (See People v. Wickersham (1982) 32 Cal.3d 307, 324-325 [disapproved on
another ground in People v. Barton
(1995) 12 Cal.4th 186, 201].) However, instructions
on lesser included offenses are not required when the evidence shows that, if
guilty at all, defendant committed the greater crime. (People
v. Leach (1985) 41 Cal.3d 92, 106.)â€
(People v. Lema (1987) 188
Cal.App.3d 1541, 1544-1545.) We conclude
the trial court had no sua sponte duty to instruct on simple assault and
battery as lesser included offenses of the forcible sex crimes.
IV. Erica’s Preliminary Hearing Testimony Was
Properly Admitted at Trial
Defendant
contends the trial court erred in admitting Erica’s preliminary hearing
testimony at trial. We disagree.
A. The
Applicable Law
Former testimony from a prior proceeding is not made inadmissible
by the hearsay rule if the declarant is unavailable as a witness. (Evid. Code, § 1291.) A witness is unavailable if he or she is “[a]bsent
from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by
the court’s process.†(Evid. Code, § 240,
subd. (a)(5).)
“‘[D]ue diligence’ is ‘incapable of a mechanical definition,’ but
it ‘connotes
persevering application, untiring efforts in good earnest, efforts of a
substantial character.’
[citation], the importance of the witness’s testimony
[citation], and whether leads were competently explored [citation].†(People
v. Cromer (2001) 24 Cal.4th 889, 904 (Cromer).)
We review the trial
court’s determination of the historical facts, including the prosecution’s account
of their failed efforts to locate the absent witness, under a deferential
standard of review. (
determination whether the prosecution’s efforts to locate an absent witness are
sufficient to justify an exception to the defendant’s constitutionally
guaranteed right of confrontation at trial. (Id.
at p. 901.) But an appellate court will
not reverse a trial court’s determination simply because the defendant can
conceive in hindsight of a proposed further step or avenue left unexplored. (People
v. Diaz (2002) 95 Cal.App.4th 695, 706.) Nor can the court impose upon the prosecution the
task of keeping continuous tabs on a witness, for the administrative burden
would be prohibitive. (Ibid.)
B. Additional Facts
About a week before trial, Deputy District Attorney
Martha Carrillo attempted to locate Erica by contacting Erica’s mother. Although this had always worked in the past, Erica’s
mother gave Erica’s new cell phone number to Carrillo and told her that she had
tried but could not locate Erica. Carrillo
left several messages at that number and sent several email messages to an
email address that she believed was Erica’s. When those efforts failed to produce a
response from Erica, Carrillo requested the assistance of an investigator.
Investigator Yvette Hartwell left messages
on Erica’s cell phone and spoke with Erica’s mother, who told Hartwell that
Erica had said, “[I]t’s my f’ing life. I
don’t want to relive this stuff.†Hartwell
visited several of Erica’s previous addresses and checked with the jails, hospitals,
and the coroner’s office. Hartwell kept
calling Erica’s cell phone until the cell phone was disconnected the day before
trial.
Detective Teresa Curtis tried to locate
Erica by checking a previous address, examining arrest records, and contacting Erica’s
probation officer, whose last contact with Erica had occurred in October 2011. Curtis also sent several email messages to an email
address associated with Erica.
After the above efforts to locate Erica
failed, Carrillo sought to introduce Erica’s preliminary hearing testimony at
trial. Carrillo, Hartwell, and Curtis
testified as to their efforts to locate Erica.
Carrillo stated that she had spoken with Erica about her trial testimony
on at least five occasions. Until Erica
suddenly disappeared just before trial, Carrillo had no reason to believe that
Erica would “be a difficult witness†to secure for trial. Although Erica “was very emotional about not
wanting to relive this†and asked if she would have to testify again, Erica had
assured Carrillo that she would stay in touch with her mother, who was “battling
cancer,†and could be reached through her. In Carrillo’s opinion, because Erica was now actively
refusing to come forward, extending the search for another month would be
futile because all reasonable leads had been exhausted.
Defense
counsel objected that the prosecution did not exercise due diligence by failing
to look for Erica until two court days before trial. Defense counsel argued that in light of Erica’s
reluctance to testify at trial, the prosecution should have started the search
much earlier. Defense counsel pointed
out that no efforts were made to look for Erica during the “three-day weekendâ€
before trial.
Witness Is Supported by Substantial Evidence
The trial
court concluded that under the circumstances, the prosecution’s efforts were
diligent and timely. The trial court
found that the prosecution had exhausted all available leads and exercised due
diligence in trying to locate Erica, who was unavailable as a witness.
The trial
court based its determination on the following evidence. “There were contacts with the mother and she
called back and so it was only late in the game that the People learned that
she was actively avoiding being a witness in the case.†Erica’s phone was still in service when messages
were left by Carrillo and Hartwell. Even
though Erica was a “reluctant†witness at the preliminary hearing, she did not
display “active avoidance†until “much later in the game.†Erica’s active avoidance was the “real problem,â€
which did not become “crystal clear†until Erica’s phone was disconnected the
day before trial.
We distinguish this case from
disappeared seven months before trial. The
prosecution issued subpoenas three months later, but did not serve them. The prosecution’s investigators visited the
witness’s home a month before trial, but waited two days before going to her
mother’s residence where she reportedly was living. When the investigators were informed that the
mother was out but would return the next day, the investigators did not return
to talk to her. Based on this record,
the Supreme Court concluded that “serious efforts to locate [the witness] were
unreasonably delayed, and investigation of promising information was
unreasonably curtailed.†(
in this case were serious and diligent.
We further
conclude that any error in the admission of Erica’s prior testimony was
harmless under either the Watson or
of prejudice. The evidence of defendant’s
guilt was overwhelming. Erica’s
testimony was corroborated at trial by Officer Alejandro Higareda, who had
taken her crime report on the night of the rape, and Cathy Adams, the nurse who
had examined her at the hospital and found cuts, bruises, and abrasions that
were consistent with being handcuffed and held at knifepoint. In addition, Erica’s testimony was corroborated
by defendant’s admissions that he had handcuffed the “last two†women, which
included Erica, that “[a]ll the girls are the same,†that he “picked them up,â€
he drove them to a location, “they all performed sexual acts on [him] while
[he] had a knife on their throat[s],†and they all were blindfolded with their
bras.
V. Sentencing Issues
Defendant
was convicted of 23 counts of forcible rape, forcible oral copulation, and
forcible sodomy, plus five counts of kidnapping to commit another crime. As to each forcible sex crime, the jury found
true the special allegations that subjected defendant to consecutive terms of
25 years to life under the One Strike law.
(§ 667.61.)
name="_ftnref9" title="">[9]
The One Strike law “was enacted to ensure
that serious sexual offenders receive long prison sentences regardless whether
they have any prior criminal convictions. (People
v. Wutzke (2002) 28 Cal.4th 923, 926, 929.)†(People
v. Luna (2012) 209 Cal.App.4th 460, 465.)
The trial court does not have discretion “to strike any of the
circumstances specified in subdivision (d) or (e).†(§ 667.61, subd. (f).) “‘Having been pled and proven, the
circumstance of [the specified offense] which gives rise to the 25 years to
life punishment under section 667.61, subdivision (d) “shall not†be stricken.
[Citations.]’†(People v. Jackson (1998) 66 Cal.App.4th 182, 193-194.)
A. The Court Mistakenly Imposed an
Unauthorized Sentence on Count 41
The Attorney General contends, and
defendant agrees, that the trial court mistakenly treated count 41, kidnapping
to commit another crime, as a forcible sex crime and erroneously sentenced
defendant on count 41 to a consecutive term of 25 years to life under the One
Strike law. As a result of that error,
the trial court imposed 24 rather than 23 consecutive sentences of 25 years to
life under the One Strike law on counts 1-3, 5-9, 12-13, 16-20, 22-25, 28-29,
38-39, and, erroneously, 41, resulting in an erroneous sentence of 600 years to
life, rather than the correct sentence of 575 years to life. It is undisputed that if the trial court had been
alerted to its error, it would have imposed the same sentence on count 41 as it
did on counts 4, 15, 21, and 27 (which were also kidnapping counts) of life
with possibility of parole, and would have stayed punishment on count 41 (including
all fines and assessments) under section 654.
Because the sentence imposed on count 41
was erroneous, it is subject to correction on appeal as an unauthorized sentence. (In re
Renfrow (2008) 164 Cal.App.4th 1251, 1256.)
We therefore remand with directions to correct the abstract to reflect a
corrected sentence of 23 consecutive terms of 25 years to life on counts 1-3,
5-9, 12-13, 16-20, 22-25, 28-29, and 38-39, and a life sentence on counts 4,
15, 21, 27, and 41. The sentences
(including fines and penalty assessments) on counts 4, 15, 21, 27, and 41 are
stayed under section 654.
Under the California
Defendant
contends that his sentence under the One Strike law constitutes cruel or
unusual punishment under the California Constitution. We disagree.
“A punishment is cruel or unusual within
the meaning of the California Constitution if ‘it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity.’ (
the Supreme Court extracted from prior decisions a four-pronged analysis for
claims of disproportionate sentencing. (
the nature of the offense and the offender ‘with particular regard to the
degree of danger both present to society.’ (Id.
at p. 425.) In contemplating the nature
of the offense we consider not only the crime as defined by the Legislature but
also ‘“the facts of the crime in question†. . . including such
factors as its motive, the way it was committed, the extent of the defendant’s
involvement, and the consequences of his acts.’ (People
v. Dillon [(1983)] 34 Cal.3d [441,] 479.) In considering the nature of the offender we
look at such factors as the defendant’s ‘age, prior criminality, personal
characteristics, and state of mind.’ (
the challenged punishment with punishments in California
and other jurisdictions for offenses which are as serious or more serious. (People
v. Dillon, supra, 34 Cal.3d at p.
487 & fn. 38; In re Lynch,
v. Estrada (1997) 57 Cal.App.4th 1270, 1278.)
Offender
Under any objectively reasonable standard,
defendant is a violent serial rapist who preyed on vulnerable women who,
because they were engaged in the illegal occupation of prostitution, were often
reluctant to report the crimes he committed against them. The fact that defendant does not have a
serious criminal history is undoubtedly a reflection of the extreme
vulnerability of his victims.
In terms of the degree of danger that
defendant presents to society, we have no difficulty finding him to be a highly
dangerous individual who is likely to reoffend if he is not incarcerated for
the rest of his life. The crimes in this
case are even more serious than in People
v. Sullivan (2007) 151 Cal.App.4th 524, which involved a sentence of 210
years to life for six counts of robbery, with two prior serious felony
convictions and two prior prison terms. In
rejecting the defendant’s claim of cruel and unusual punishment, the court in
case, which involved “a series of robberies which included threatened acts of
violence with a deadly weapon,†as “acts of a most heinous nature.†(Id. at
p. 570.) The defendant in
incorrigible recidivist offender who presents a most grave and extreme level of
danger to society.†(
We conclude that in comparison to Sullivan,
the crimes in this case—a long string of forcible rapes, forcible oral
copulations, and forcible sodomy against women who were confined in an
automobile and threatened at knifepoint with death or bodily injury while
blindfolded and in some cases handcuffed—are far more heinous.
2. Other Punishments in This State
Defendant contends that his punishment is
disproportionate to the punishments imposed for first or second degree
murder. He argues that because he must
serve 600 years (now 575 years) prior to being eligible for parole, his
sentence is identical to the sentence he would have received for committing 24
(now 23) first degree murders.
We believe that the punishment in this case
is not disproportionate to the lengthy indeterminate sentences that have been
upheld in other One Strike and Three Strike cases. (See e.g.,
178 [One Strike sentence of 15 years to life for rape during commission of
burglary was not cruel or unusual punishment]; People v. Estrada, supra,
57 Cal.App.4th 1270 [One Strike sentence
of 25 years to life for forcible rape in course of burglary was not cruel or
unusual punishment]; Lockyer v. Andrade (2003)
538 U.S. 63 [two consecutive terms of 25 years to life for third strike
conviction of petty theft was not unconstitutional]; People v. Cartwright (1995) 39 Cal.App.4th 1123 [third strike
sentence consisting of an indeterminate term of 375 years to life and
determinate term of 53 years for violent sexual assaults on three women was not
cruel and unusual punishment].)
“‘“Whether a particular punishment is
disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is
not an exact science, but a legislative skill involving an appraisal of the
evils to be corrected, the weighing of practical alternatives, consideration of
relevant policy factors, and responsiveness to the public will; in appropriate
cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not
interfere in this process unless a statute prescribes a penalty ‘out of all proportion
to the offense’ [citations], i.e., so severe in relation to the crime as to
violate the prohibition against cruel or unusual punishment.†[Citation.] “Defining crime and determining punishment are
matters uniquely legislative in nature, resting within the Legislature’s sole
discretion.†[Citation.]’ (People
v. Lewis (1993) 21 Cal.App.4th 243, 251.) ‘“Only when the punishment is out of all
proportion to the offense and is clearly an extraordinary penalty for a crime
of ordinary gravity committed under ordinary circumstances, do the courts
denounce it as unusual.†[Citation.]’ (Ibid.)
“‘Our Supreme Court has emphasized “the
considerable burden a defendant must overcome in challenging a penalty as cruel
or unusual. The doctrine of separation of
powers is firmly entrenched in the law of California,
and a court should not lightly encroach on matters which are uniquely in the
domain of the Legislature. Perhaps
foremost among these are the definition of crime and the determination of
punishment. While these intrinsically
legislative functions are circumscribed by the constitutional limits of article
I, section 17 [of the California Constitution], the validity of enactments will
not be questioned ‘unless their unconstitutionality clearly, positively, and
unmistakably appears.’†[Citation.]’ (People
v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.)†(People
v. Sullivan, supra, 151 Cal.App.4th
at p. 569.)
Without citing any specific examples,
defendant argues that because comparable “‘one-strike’ laws are drafted much
more narrowly than in California,
and generally target serious violent offenders, appellant’s sentence
constituted cruel and unusual punishment.â€
A similar contention was rejected by the
court in People v. Martinez (1999) 71
Cal.App.4th 1502, 1516, with which we agree:
“That California’s
punishment scheme is among the most extreme does not compel the conclusion that
it is unconstitutionally cruel or unusual. This state constitutional consideration does
not require California
to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code
to the “majority rule†or the least common denominator of penalties nationwide.’
(People
v. Wingo (1975) 14 Cal.3d 169, 179.) Otherwise, California
could never take the toughest stance against repeat offenders or any other type
of criminal conduct. [¶] ‘[T]he needs and concerns of a particular
state may induce it to treat certain crimes or particular repeat offenders more
severely than any other state. . . . [¶] Whether
a particular punishment is disproportionate to the offense is a question of
degree. The choice of fitting and proper
penalty is not an exact science but a legislative skill involving an appraisal
of the evils to be corrected, the weighing of practical alternatives,
consideration of relevant policy factors, and responsiveness to the public
will. In some cases, leeway for
experimentation may be permissible. Thus,
the judiciary should not interfere in the process unless a statute prescribes a
penalty “‘out of all proportion to the offense.’â€â€™ (People
v. Cooper [(1996)] 43 Cal.App.4th [815,] 827, quoting In re Lynch, supra, 8
Cal.3d at pp. 423-424.)â€
Under the Federal Constitution
Defendant
contends that his sentence constitutes cruel and unusual punishment under the
federal Constitution. The contention
lacks merit.
“The Eighth Amendment prohibits imposition
of a sentence that is ‘grossly disproportionate’ to the severity of the crime. (Ewing v. California
(2003) 538 U.S.
11, 20-21; People v. Carmony (2005)
127 Cal.App.4th 1066, 1076 . . . .) In a noncapital case, however, successful
proportionality challenges are ‘“exceedingly rare.â€â€™ (Ewing,
supra, 538 U.S. at pp. 20-21
[sentence of 25 years to life in prison for felony theft of golf clubs under
California’s “Three Strikes†law, with prior felonies of robbery and burglary,
did not violate federal prohibition on cruel and unusual punishment].) In the rare case where gross
disproportionality can be inferred from (1) the gravity of the offense and
harshness of the penalty, the court will consider (2) sentences imposed for
other offenses in the same jurisdiction and (3) sentences imposed for
commission of the same crimes in other jurisdictions. (Harmelin
v. Michigan (1991) 501 U.S. 957, 1005 [sentence of life in prison without
possibility of parole, for possessing 672 grams of cocaine, was not cruel and
unusual punishment].) ‘[I]t is only in
the rare case where a comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality that the second and
third criteria come into play.’ (
695, 707, citing Harmelin v. Michigan,
supra, 501 U.S. at p. 1005 (conc.
opn. of Kennedy, J.).)†(
1080, 1087-1088.)
For the reasons discussed in the preceding
sections, we conclude that defendant has failed to show that his sentence was
grossly disproportionate to the severity of the crimes in violation of the
Eighth Amendment.
D. Custody
Credits
The Attorney General contends, and
defendant agrees, that the abstract of judgment fails to reflect the correct
number of presentence custody credits.
The trial court stated at sentencing that defendant was entitled to 911
presentence custody credits (consisting of 793 actual days in custody and 118
days good time/work time), which was erroneously recorded in the abstract as
900 credits. We order that the abstract
be corrected to reflect that defendant was given 911 presentence custody
credits. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [errors in abstract
may be corrected on appeal].)
DISPOSITION
The matter is remanded with directions to
correct the abstract of judgment to reflect sentences of: (1) 23 consecutive terms of 25 years to life
on counts 1-3, 5-9, 12-13, 16-20, 22-25, 28-29, and 38-39; and (2) life with
possibility of parole on counts 4, 15, 21, 27, and 41, which, along with the fines
and penalty assessments on those counts, are stayed under section 654. The abstract is also to be corrected to
reflect 911 presentence custody credits.
The clerk is directed to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN,
P. J.
WILLHITE,
J.
name="_ftn1" title="">1
Although the
information was numbered counts 1 through 42, only 28 counts were presented to
the jury. As to the remaining 14 counts,
five counts contained no allegations (10, 14, 26, 36 & 37), and nine counts
were dismissed upon the prosecution’s motion (11, 30, 31, 32, 33, 34, 35, 40
& 42).
The jury
returned guilty verdicts on all 28 counts, consisting of 10 counts
of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2) (counts 1, 3, 5,
8, 12, 16, 19, 22, 28, 38)), 11 counts of forcible rape (§ 261, subd. (a)(2)
(counts 2, 6, 7, 9, 13, 17, 20, 23, 25, 29, 39)), two counts of forcible sodomy
(§ 286, subd. (c)(2) (counts 18, 24)), and five counts of kidnapping to commit
another crime (§ 209, subd. (b)(1) (counts 4, 15, 21, 27, 41)).
Unless
otherwise indicated, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2] The jury found true the
special allegations of personal use of a knife (§§ 12022.3, subd. (a), 667.61,
subd. (e)(3)), sex crimes committed against multiple victims (§ 667.61,
subd. (e)(4)), kidnapping during the commission of a crime (§ 661.61, subd.
(e)(1)), and kidnapping during the commission of a crime where the movement
substantially increased the risk of harm (§ 667.61, subds. (a), (d)).
