P. v. Garcia

Filed 1/25/10 P. v. Garcia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Amy D. Hogue, Judge. Affirmed as modified.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, and Steven E. Mercer and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Following an hours-long attack on two high school-aged victims, a jury found Miguel S. Garcia guilty of four counts of forcible rape, one count of sodomy by force, two counts of forcible oral copulation, two counts of sexual penetration by foreign object, two counts of robbery, one count of false imprisonment by violence, and one count of criminal threats, with findings that he personally used a firearm on all 13 counts. The trial court sentenced Garcia to an indeterminate term of 25 years to life on one rape count, plus consecutive upper terms on the remaining sex crimes, plus consecutive one-third the middle base terms on the four nonsex crimes, resulting in an aggregate determinate term of 168 years 8 months. We affirm all of Garcias convictions, but find a violation of Penal Code section 654 in imposing consecutive sentences on counts 12 and 13, and that his indeterminate term must be 15 years to life, rather than 25 years to life. We remand the cause to the trial court with directions to modify Garcias sentence to reflect the noted sentencing adjustments, and, as modified, affirm the judgment.

FACTS

Cynthia R. and some girlfriends went to a party at Ian H.s apartment in Culver City at about 10:00 p.m. on September 15, 2006. Jason S. and some of his friends arrived at the party at about the same time. At some point after they arrived at the party, Cynthia met Jason, a schoolmate whom she thought was a good looking guy, and they spoke for a short while. When Jason walked away from Cynthia, Garcia approached her and tried to talk to her. Cynthia thought Garcia looked . . . intoxicated or something, so she kind of avoided him. Sometime around midnight or 1:00 a.m. (now September 16), Cynthias girlfriends left the party, but Cynthia decided to stay and talk to Jason, who had offered to drive her home.

While Cynthia and Jason were talking in a bedroom, Garcia opened the door two separate times and looked into the room. After Garcias second intrusion, Cynthia and Jason decided they should leave the bedroom. When Cynthia opened the bedroom door, Garcia confronted her in the doorway and demanded her cell phone. Garcia then pushed both Cynthia and Jason back into the room and grabbed Cynthias phone from her hand. Garcia then took out a gun and some shoelaces and commanded Cynthia to tie Jasons hands behind his back. After Cynthia finished, Garcia decided that Jasons hands were not bound tightly enough, and Garcia retied Jasons hands, then tied his hands to his feet, and pushed him into a closet. Garcia told Jason not to move or say anything, closed the closet door, and used a four-foot stone object to block the closet door.

Garcia then turned his attention back to Cynthia, pointed the gun at her, and told her to undress and lie on the bed. When Cynthia asked Garcia to let her go, he told her to shut up, removed his sweatshirt, pulled his pants down to his ankles, and then forced his penis inside her vagina. Garcia kept the gun pointed at Cynthias head the entire time.

After Garcia had been raping Cynthia for a long time, he heard a noise in the closet, and went to check on Jason. Garcia told Jason to shut up or he would get shot. Garcia then returned to Cynthia and asked her if she did crystal meth. When Cynthia said no, Garcia replied that he was going to make her do some crystal meth, and then forced his penis into her mouth, causing her to gag. When Cynthia started gagging, Garcia told her that she had better not vomit or he would make her eat it. Garcia then ordered Cynthia to get down on her knees on the floor, with her back facing him. While keeping the gun in Cynthias back, Garcia spat on his hand, put the saliva over Cynthias vagina and back, and then forced his penis into her anus. When Cynthia continued crying, Garcia told her to shut up or he would shoot her. While Garcias penis was in Cynthias anus, he began sticking his fingers, too into her vagina and anus. Garcia penetrated Cynthia with his fingers [a]bout five times.

Meanwhile, Jason began making noises and moving around in the closet again. After sodomizing and penetrating Cynthia, Garcia again checked on Jason. Garcia told Jason, Dont move or Ill blow your head off. Garcia then returned to the bed and forced his penis inside Cynthias vagina again. While he raped Cynthia this time, Garcia began asking her where she and her family lived. Cynthia tried to ask Garcia about his family, and what he would think if someone did what he was doing to her to his sister or mother, but Garcia just continued the rape.

At around 3:30 or 4:00 in the morning, Cynthia told Garcia that she needed to go to the bathroom. Garcia told her to pee on herself. When Cynthia started crying and saying no, Garcia took her to the bathroom. Cynthia sat on the toilet, and Garcia told her to give him oral sex and put his penis in her mouth. Garcia then took Cynthia back into the bedroom, and again put his penis into her vagina. When Cynthia continued to ask Garcia to let her go, Garcia told her that he wanted her to call him the next day. Cynthia asked Garcia why he was doing this to her, and Garcia replied that it was because she brushed him off at the party earlier. He told her that it was all her fault, that she should never have done that. Garcia had the gun in his hand the entire time.

Finally, Garcia said he was going to let Cynthia go. Garcia went to the closet a last time to check on Jason. Garcia took Jasons wallet and searched it, but there was no money in it. He then took Jasons iPod that had fallen out of his pocket when Garcia pulled his wallet from his pants. Garcia and Cynthia got dressed. Garcia put his gun away and walked Cynthia out of the apartment. As they were walking out, Garcia told Cynthia that his bike was in the alley and to follow him toward the back. Garcia threatened to kill Cynthia if he saw the police at his house the next day. As soon as they walked out, Cynthia walked in the opposite direction of Garcia. She saw a police car at the corner, walked over to the vehicle, and told the officer what had happened.

In the meantime, Jason heard Cynthia and her assailant leave the room. Jason got loose from his bindings and jumped out of the window. He went to his car and drove home, where he told Ian what had happened. Jason was visibly distraught, had bruised wrists, and looked beaten up.[1]

Following the attack, police showed Cynthia two separate six-pack photograph lineups. Cynthia identified Garcia as her assailant from the second set of photographs.

Los Angeles Police Department Detective Rick Gonzales, accompanied by Detective Porter, interviewed Garcia on July 17, 2007, a few hours after he had been taken into custody. During his interview, Garcia stated that he had gone to the party, and that he had forced Cynthia to have sex with him and to orally copulate him. He admitted that he had tied up Jason and put him a closet. Garcia stated that he had a .22-caliber gun with him.

In October 2007, the People filed an information charging Garcia with the following crimes:

Count 1: Forcible rape (Pen. Code, 261, subd. (a)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 2: Sexual penetration by foreign object (Pen. Code, 289, subd. (a)(1)), with a personal firearm use allegation (Pen. Code,  12022.53, subd. (b));

Count 3: Sexual penetration by foreign object (Pen. Code, 289, subd. (a)(1)), with a personal firearm use allegation (Pen. Code,  12022.53, subd. (b));

Count 4: Sodomy by use of force (Pen. Code, 286, subd. (c)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 5: Forcible rape (Pen. Code, 261, subd. (a)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 6: Forcible oral copulation (Pen. Code, 288a, subd. (c)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 7: Forcible rape (Pen. Code, 261, subd. (a)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 8: Forcible oral copulation (Pen. Code, 288a, subd. (c)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 9: Forcible rape (Pen. Code, 261, subd. (a)(2)), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 10: First degree residential robbery (Pen. Code, 211), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 11: First degree residential robbery (Pen. Code,  211), with a personal firearm use allegation (Pen. Code, 12022.53, subd. (b));

Count 12: False imprisonment (Pen. Code, 236), with a personal firearm use allegation (Pen. Code,  12022.5, subd. (a)); and

Count 13: Criminal threats (Pen. Code, 422), with a personal firearm use allegation (Pen. Code,  12022.5, subd. (a)).

The charges were tried to a jury in October 2008. Cynthia identified Garcia as her assailant, testifying, No, I dont have any doubt. Jasons account of the attack largely mirrored Cynthias account, but he maintained that he could not identify the male assailant. Ian H. testified that Garcia had been at the party, and that Garcia had suggested they go train Ians girlfriend. Ian understood Garcia to be suggesting that they engage in serial sex acts with Ians girlfriend.

On October 3, 2008, the jury returned verdicts finding Garcia guilty on all counts, and found all of the firearm use allegations to be true.

On November 5, 2008, the trial court sentenced Garcia as follows:

Count 1: 25 years to life.

Count 2: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 3: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 4: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 5: 8 years (the upper term) plus 10 years for the gun enhancement; consecutive.

Count 6: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 7: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 8: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 9: 8 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 10: 6 years (the upper term), plus 10 years for the gun enhancement; consecutive.

Count 11: 1 year 4 months (one-third the midterm), plus 3 years 4 months (one-third the midterm) for the gun enhancement; consecutive.

Count 12: 8 months (one-third the midterm), plus 1 year 4 months (one-third the midterm) for the gun enhancement; consecutive.

Count 13: 8 months (one-third the midterm), plus 1 year 4 months (one-third the midterm) for the gun enhancement; consecutive.

DISCUSSION

I. The Trial Court Properly Admitted the Gang Evidence

Garcia contends that all of his convictions must be reversed because the trial court abused its discretion in allowing the prosecution to introduce gang affiliation evidence. We reject Garcias contention for several reasons.

A. The Setting

Before trial, the prosecutor and Garcias defense counsel agreed that the People would advise their witnesses not to mention anything about Garcias gang membership, but that Garcias own reference to his gang membership, during his interview by police, would be admissible. At trial, the prosecutor abided by this arrangement during her direct examination of Cynthia. The problem arose when Garcias defense counsel cross-examined Cynthia. He asked this question in an apparent attempt to impeach the credibility of her identification of Garcia as her attacker: [D]o you recall telling the police that at some point during this whole ordeal, that you saw the suspect in this case remove his shirt, and you saw a tattoo across his stomach in an arch form that said Culver City?[2] Cynthia answered that she had seen a tattoo on Garcias stomach, but she couldnt see what it said, because it was in weird writing, and that it had been Garcia who had told her it read Culver City. When defense counsel again asked Cynthia whether she had told the police that the suspect had a tattoo which said Culver City, Cynthia replied, Yes, I recall telling [the police] that I saw it.

During the prosecutors redirect examination, the following exchange occurred without any objection by defense counsel:

[THE PROSECUTOR]: You indicated on cross-examination that you had told the police that he had a tattoo?

[CYNTHIA]: Yes.

[THE PROSECUTOR]: Could you describe what you were able to see about the tattoo in the bedroom?

[CYNTHIA]: It was arched across his stomach.

[THE PROSECUTOR]: And what kind of lettering was on the tattoo?

[CYNTHIA]: It was like old English or weird writing, I dont know, I dont know what kind of writing. You couldnt really see it if you were to just glance at it. You would have to really look at it.

[THE PROSECUTOR]: Were you able to personally see -- what the words said?

[CYNTHIA]: No.

[THE PROSECUTOR]: And did you indicate on cross-examination that he, in fact, told you it said Culver City?

[CYNTHIA]: Yes.

[THE PROSECUTOR]: But as far as you could see, you just saw old English lettering?

[CYNTHIA]: Right

[THE PROSECUTOR]: About how big were the letters?

[CYNTHIA]: About this big (indicating).

[THE PROSECUTOR]: Indicating, for the record, maybe five or six inches.

[CYNTHIA]: Yeah, five or six inches.

THE COURT: Okay.

[THE PROSECUTOR]: Your Honor, could we please have the defendant lift up his shirt and show it to the court and jury?

THE COURT: Yes. []  . . .  []

[THE PROSECUTOR]: When you look at the stomach of the defendant here, does this resemble any of the lettering that you saw that evening?

[CYNTHIA]: Yes.

On recross-examination, defense counsel again asked Cynthia whether she had told the police that she saw the words Culver City, and Cynthia again answered, Yes, I did.

After defense counsel finished his recross-examination, the following exchange occurred outside the presence of the jury:

THE COURT: Counsel [addressing the prosecutor], was there something you wanted to raise? [] Do you want to do that right now?

[THE PROSECUTOR]: Its a very interesting conundrum the People are in right now, Your Honor, because we had spoken earlier of not getting into any gang information, and so we purposefully kept all of that out, even though it was a huge factor of how [Garcia] intimidated [Cynthia] and how he frightened her into acquiescence. [] And then counsel brings up the thing on his stomach, which he told her was Culver City to further intimidate her. And also our theory is, is that if she ever told on him, [the police] would think it was a Culver City gang member. [] Now I think hes opened the door, and we have to further pursue this.

THE COURT: [Defense Counsel]?

[DEFENSE COUNSEL]: Your Honor, the intimidation factor that, I will kill you, I have friends to kill you, or, you know, to hurt you, was already said. It was already said by her that was ‑‑ the intimidation was already extended. [] I merely wanted to show that her identification that she related to the police, was that something different than what was on my clients tattoo.

THE COURT: I couldnt see the tattoo, because ‑‑

[THE PROSECUTOR]: Its another gang. So hes introduced this whole thing now, which we were specifically keeping out, or we would have gone into the whole tattoo thing, and we would have gone into what was the significance of when he told you it was Culver City.

THE COURT: What does it actually say?

[THE PROSECUTOR]: Its Mexican Pride 13.

THE COURT: Okay.

[DEFENSE COUNSEL]: Well, thats fine.

[THE PROSECUTOR]:  . . .  I mean counsel has opened this huge door that we were trying to keep out for his benefit. []  . . .  But we have to further explore this now, because now it just seems like [Cynthia] didnt know what was going on.

[DEFENSE COUNSEL]: I didnt ask my client to lift up his shirt.

[THE PROSECUTOR]: But you brought up his stomach.

THE COURT: Right. And there was no objection when he did.

[DEFENSE COUNSEL]: No, theres no objection, Your Honor. Its not ‑‑ thats not the point. [] The point was she had already mentioned that she had been intimidated by his, quote, friends, which would take care of her if she told the police.

[THE PROSECUTOR]: She didnt talk about that.

[DEFENSE COUNSEL]: Something to that effect.

THE COURT: She didnt go quite that far. She said he threatened her family, and something would happen. But the way she put it, as I took it, didnt really implicate gang issues. [] It seems to me to the extent that [defense counsel] has sought to impeach the witness based on the tattoo and the significance of it, the People can rehabilitate her. . . . [] . . . []

THE COURT: Well, I suppose for the issue of force or fear, which is an element of many of the charges, its fair for the People to bring out her fear. And if the fear rests, in part, on her perception that this was a potentially gang-related matter, I think it is fair for the People to bring that out at this point. [] Now I dont think we want to spend a lot of time on it. Because frankly, under Evidence Code [section] 352, we have received a great deal of evidence about the force and fear factor. We have heard about a gun and loads of other pieces of evidence that would certainly support her fear. [] So under Evidence Code [section] 352, I think the potential probative value of adding more elements to fear is not great. So I dont want to get into a long tangent on this.

[THE PROSECUTOR]: And neither do I. And I didnt want to even go there at all. [] But there is one other avenue where it really is relevant, which is the guy looked like a gang member. I mean one of the first things she told me is that when these kids crashed the party, the defendants crowd, she knew they didnt belong, they were gang members. [] And so when he tells her, this says Culver City, she believed it, because they all looked like Culver City gang members. [] So its not a case of her confused mistaken I.D. when you already have a preconceived idea of who somebody is, and then they tell you, oh, it says Culver City, its much easier to understand why she believed that then as counsel would have it be, that she read the words of a Culver City person, and it wasnt him. [] So that goes to her credibility in terms of I.D.

THE COURT: So what youre asking, what you want to go into, if you can summarize for me, so that I can rule.

[THE PROSECUTOR]: Okay, I simply want to introduce the photograph of his tattoo and his stomach, so that we actually have it, so we can use it in argument later. [] And then I just want to ask her, when he said Culver City, what did that mean to you? I dont want to belabor this anymore than I did before.

THE COURT: That seems fair.

[THE PROSECUTOR]: But I just want to clear it up, too.

[DEFENSE COUNSEL]: Your Honor, I think at the time that she discovers Culver City or whatever, his tattoo, shes already in bed, shes got a penis insider of her vagina, shes already been intimidated with a gun, with the fact that her boyfriend has been allegedly tied up and thrown in a closet. [] You know, what are we doing? Are we just beating a dead horse?

THE COURT: No, I dont think so. I think limiting it to just those areas that [the prosecutor] mentioned, its fair enough as rehabilitation, because you have been working to impeach the witness on what the tattoo said. [] So I think its fair for [the prosecutor] to show a photograph, and fair for her to just make the questions she referred to. Beyond that, I do agree with [defense counsel], you know, its overkill.

[THE PROSECUTOR]: And I just want to ask again, did she actually read the words?

THE COURT: Yes.

After the break, the prosecutor asked Cynthia did [she] ever get a chance to actually read the words off [Garcia]s stomach, and Cynthia stated that she did not, and that Garcia himself had told her the tattoo said Culver City. The prosecutor further asked Cynthia whether that information had any significance to her, and Cynthia answered, That he was a gang member, and that his threats made her scared because he said he was from the Culver City gang. The prosecutors entire re-redirect examination covers about three and one-half pages of the reporters transcript.

B. Garcia Forfeited His Claims of Error Regarding the Gang Affiliation

Evidence

Garcia forfeited his claims of gang evidence error for two reasons. First, Garcia broadly waived his claim of error by opening the issue of his gang affiliation when he asked Cynthia, in an attempt to impeach her credibility, whether she had told police that Garcia had a Culver City gang tattoo on his stomach. A party who offers an inadmissible subject into evidence may not claim any error on appeal related to the admission of the evidence on that very subject. (People v. Ramos (1997) 15 Cal.4th 1133, 1168.)

Second, Garcia specifically waived his claims that the gang evidence elicited from Cynthia after the recess there was no objection to the evidence which had been elicited before the recess violated the character evidence rules embodied in Evidence Code section 1101. When the issue of gang evidence was addressed at the short trial recess immediately before the prosecutors re-redirect examination (see ante), Garcias counsel objected that permitting the prosecution to delve any further into the matter of his gang affiliation would be like beating a dead horse. We read this objection to constitute an assertion that the evidence was not admissible under section 352 because it would consume too much time in return for little more than a cumulative effect on an issue already addressed before the recess. The trial court considered the matter with the same section 352 understanding in mind. Because Garcia failed to object that Cynthias post-recess, gang-related testimony was inadmissible under section 1101, he has forfeited that specific claim of error on appeal. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 626.)

C. There Was No Error in any Event

Although Evidence Code section 1101, subdivision (a), provides that evidence of a persons character generally is not admissible, its evidentiary proscription is not absolute. On the contrary, section 1101, subdivision (c), provides that [n]othing in section 1101 affects the admissibility of evidence which is offered to support or attack the credibility of a witness. Because Garcias trial counsel attempted to attack Cynthias credibility by questioning her about her mistaken identification of Garcia vis--vis her mistaken identification of the gang tattoo on her attackers stomach, and, because, the prosecutions ensuing gang affiliation evidence supported Cynthias credibility, there simply was no violation of any proscription against character evidence embodied within section 1101. We review the trial courts ruling on issues implicating section 1101 for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.) We simply are unable to assign any unreasonableness in the trial courts decision in this case.

We also find no error under Evidence Code section 352. A trial courts exercise of discretion under section 352s provisions prescribing a balancing between the probative of evidence against its potential problems is also reviewed under the abuse of discretion standard. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) In exercising its discretion in Garcias case, the trial court expressly and correctly found that the gang evidence was probative value on the issue of Cynthias force and fear. Against this backdrop, we decline to find that the trial courts decision to allow a limited exploration of the issue cannot be said to violate section 352 as a matter of law. Garcias attempt to challenge Cynthias credibility added weight to the scales in favor of allowing the gang evidences admission.

D. Assuming Error, There Was No Prejudice

Finally, we are amply satisfied that, had the jurors not heard the gang evidence, the result of Garcias trial would have been the same. Cynthia identified Garcia at trial with no doubt in her mind. And although he did not specifically identify Garcia, Jasons description of the nature of the attack mirrored Cynthias account. Further, Ian placed Garcia at the party contemporaneously with the attack on Cynthia and Jason. To cinch the case, Garcias confession was admitted. Garcia presented no defense evidence. Apart from and in the absence of any reliance upon the gang affiliation evidence, the case against Garcia was overwhelming. (People v. Watson (1956) 46 Cal.2d 818, 836.) To the extent Garcia challenges the trial courts failure to give a limiting instruction cautioning the jurors to consider the gang evidence solely on the issue of force and fear, and not to infer his criminal propensities, our prejudice analysis would be the same.

II. The Prosecutor Did Not Commit Misconduct

Garcia contends that all of his convictions must be reversed because the prosecutor engaged in misconduct during argument by referring to Garcia as an animal. We reject Garcias contention for several reasons.

A. The Legal Framework

A prosecutor runs afoul of the rules against misconduct when he or she employs deceptive or reprehensible trial tactics to persuade a jury. (People v. Valdez (2004) 32 Cal.4th 73, 122.) Where a claim of prosecutorial misconduct implicates a defendants due process right to a fair trial, the misconduct is reviewed as an error of constitutional magnitude. (People v. Morales (2001) 25 Cal.4th 34, 44.) Where a prosecutors conduct merely exposes jurors to some improper evidentiary matter, the misconduct may be reviewed under a harmless error standard. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 976.) Garcias arguments in his current appeal case raise the specter of the former, unfair trial situation.

B. The Trial Setting

The prosecutors argument consists of 21 pages of the reporters transcript, accounting for both the opening and closing. Our review of it reveals Garcias trial counsel interposed no objection at any point during either the prosecutors opening argument or closing argument. On appeal, however, Garcia assigns prosecutorial misconduct to the following passage:

[THE PROSECUTOR]: Then we get [to the point] after the bathroom: Detective Porter [questioned Garcia], You left at some point after that, but not ‑‑ not before you put her back on the bed, forced your penis inside of her vagina again, do you remember? And thats when the whole conversation [by Cynthia] went on about, Dont you have a dad? Dont you have a Mom? [And the detectives ask Garcia again,] You left after that, remember? Detective Gonzalez, Well, do you remember? Defendant, Yes, sir. [] And we all remember that ‑‑ those statements, because it was almost too hard to hear, the first part where [Cynthia]s asking just to go home to her dad, and then shes relying on something, trying to find humanity in this animal, like what if this happened to your mom? What if this happened to your sister? Shes trying to find something within him to connect to. And all he did was [to] continue to rape her. . . . (Italics added.)

C. Garcia Forfeited his Prosecutorial Misconduct Claim

A defendant may not complain on appeal of prosecutorial misconduct unless he or she made a timely objection at trial, asserting misconduct, and requested that the jury be admonished to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820.) Garcia did neither at his trial.

D. There Was No Misconduct in any Event

Assuming Garcias misconduct claim is not waived, there was no misconduct. The prosecutors use of negative epithets are within the range of permissible comment on a defendants conduct. (People v. Thomas (1992) 2 Cal.4th 489, 537 [prosecutors use of epithets such as perverted murderous cancer and walking depraved cancer during closing argument not misconduct].)

Garcias reliance on People v. Fosselman (1983) 33 Cal.3d 572 (Fosselman), for a different result is misplaced. Although it is true that the prosecutor in Fosselman referred to the defendant as an animal . . . out to get somebody that morning (id. at p. 580), the prosecutor also made insinuations that the defendant had failed a sobriety test which had not been introduced into evidence, and that the defendant had prior arrests, and had been on trial in the past. In concluding the prosecutor had engaged in misconduct, the Supreme Court explained: Viewing each of the various instances of the prosecutors conduct in isolation, and without expressing approval of any of them, we might not be compelled to label his performance as grossly improper. Considering them as a whole, however, we must conclude that he did indeed commit misconduct. (Id. at pp. 580-581.) And People v. Herring (1993) 20 Cal.App.4th 1066, also cited by Garcia, is similar in that a prosecutor repeatedly referred to a defendant in such terms as a dog in heat. (Id. at pp. 1073-1074.) Garcia simply has not convinced us that a single use of the word animal, particularly in the context in which it was used at his trial, where the prosecutor was discussing a high school age victim who was being sexually assaulted while begging her assailant to let her go home to her parents, amounts to prosecutorial misconduct. In the final analysis, a claim of prosecutorial misconduct in the context of closing argument is largely a matter of the degree of prejudice imparted by the prosecutors comments. Upon reading the reporters transcript, we do not find a possibility that the jury convicted Garcia due to passion and prejudice caused by the word animal, rather than the evidence.

III. The Reasonable Doubt Instructions Were Proper

Garcia contends all of his convictions must be reversed because the trial courts instructions on the presumption of innocence and the burden of proof via the standardized CALCRIM Nos. 103 and 220 implicitly instructed the jurors that they were precluded from considering the lack of [forensic] evidence against him. Garcia further contends the instructions reduced the prosecutions burden of proving the charges against him beyond a reasonable doubt. We reject Garcias claim of reasonable doubt instructional error.

A. Garcia Did Not Forfeit his Claim of Error

Before addressing Garcias claims of instructional error, we dispatch with the Peoples contention that Garcia has forfeited his claims. Although a defendants failure to interpose an instructional error objection at trial generally forfeits his or her right to raise the issue on appeal, a claim of instructional error is not forfeited where a defendant contends that the error affected his or her substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Because Garcia contends that the trial courts instructions with CALCRIM Nos. 103 and 220 resulted in a violation of his due process right to require the People to prove the charges against him beyond a reasonable doubt, we accept that his claim of error is not forfeited.

B. CALCRIM Nos. 103 and 220 Are Not Defective

For the reasons explained in People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269 (Guerrero), People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093, and People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 (Westbrooks), we reject Garcias contention that CALCRIM No. 220 violated his due process rights by suggesting impermissible elements within the definition of reasonable doubt. The instruction expressly directs jurors that, [u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. The only reasonable understanding and application of CALCRIM No. 220s language is that a lack of evidence is ground for a reasonable doubt, and nothing in the instruction dissuades jurors from considering any perceived lack of evidence. Stated in other words, any reasonable juror who applies CALCRIM No. 220 would, in the face of a lack of evidence from the government, find that proof beyond a reasonable doubt also is lacking, and would acquit the defendant.[3]

We are not persuaded to reach a different result based upon Garcias reliance on Coffin v. United States (1895) 156 U.S. 432. According to Garcia, the Supreme Court in Coffin considered a set of reasonable doubt instructions which were essentially the same as CALCRIM No. 220 and found they were constitutionally deficient. This means, says Garcia, that CALCRIM No. 220 must be equally unconstitutional. We disagree because the instructions which were at issue in Coffin do not strike us as essentially the same as CALCRIM No. 220. In Coffin, a trial court refused a defense request to include an instruction that  [t]he law presumes that persons charged with crime are innocent . . . . ,  and its reasonable doubt instruction included this language: [I]f, after weighing all the proofs and looking only to the proofs, you impartially and honestly entertain the belief that the defendants may be innocent of the offences charged against them, they are entitled to the benefit of that doubt and you should acquit them. (Coffin, at p. 453, italics added.) The Supreme Court ruled that the combination of the refusal to instruct the jury of the presumption of innocence and the instruction limiting consideration to the proofs had resulted in error for the following reason:  The proofs and the proofs only confined [the jurors] to those matters which were admitted to their consideration by the court, and among those elements of proof the court expressly refused to include the presumption of innocence, to which the accused was entitled, and the benefit whereof both the court and the jury were bound to extend him. (Id. at p. 461.) In other words, a court cannot tell a jury that they are limited to certain matters and then not include the presumption of innocence within those matters. The instructional error described in Coffin is simply not the same as Garcia claims in his current case because the trial court at Garcias trial did, in fact, instruct the jury on the presumption of innocence and related principles. Coffin does not support Garcias claim of instructional error.

Garcias coupling of CALCRIM No. 103 to CALCRIM No. 220 adds nothing to the discussion. The language of CALCRIM No. 103 overlaps CALCRIM No. 220, and we see nothing in the former which suggests to us that, when coupled with the latter, an instructional error occurred precluding the jurors from considering any perceived lack of evidence, or lowering the Peoples burden of proof.

IV. The Use of CALCRIM No. 226 Did Not Create Reversible Error

Garcia next contends that all of his convictions must be reversed because the trial court, in accord with CALCRIM No. 226, instructed the jurors to use their common sense and experience in deciding whether the witnesses testimony was true. According to Garcia, the standard CALCRIM instruction regarding common sense is troubling because its language likely encourages jurors to consider matters not in evidence, namely, their common sense and experience. This creates, says Garcia, a genuine danger that jurors may employ a standard less than proof beyond a reasonable doubt since common sense can be used as a substitute for objective . . . evidence of guilt. We find no error.

A. Garcia Did Not Forfeit his Claim of Error

Before addressing the merits of Garcias claim of instructional error on appeal, we reject the Peoples contention that he forfeited his claim because he did not object at trial. Garcias contention that CALCRIM No. 226 lowered the prosecutions burden of proof is sufficient in our eyes to overcome the general rule that his failure to object to the instruction at trial waived his claim of instructional error on appeal. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.)

B. CALCRIM No. 226 Did Not Lower the Prosecutions Burden of Proof

For the reasons articulated by Division Two of our court in People v. Campos (2007) 156 Cal.App.4th 1228, we reject Garcias contention that the use of CALCRIM No. 226 at his trial commands reversal of his convictions. An instruction to jurors to use common sense and experience does not grant jurors a license to consider matters outside of the evidence in violation of the defendants right to due process, but merely tells them that the prism through which the witnesses credibility should be evaluated is the jurors common sense and experience. (Id. at p. 1240.) Garcias arguments do not persuade us that an instruction telling jurors to use their common sense creates a real possibility that they may convict a defendant based on their common sense assessment of guilt, rather than by finding him or her guilty beyond a reasonable doubt.

V. Penal Code Section 422 Is Not Unconstitutionally Vague on its Face

Garcia contends his conviction for criminal threats against Jason (count 13) must be reversed because the criminal threats statute (Pen. Code,  422) is unconstitutionally vague on its face. According to Garcia, the statute is constitutionally deficient because it grants unfettered discretion to law enforcement officers to decide for themselves what type of statement amounts to a threat in the words of the statute to commit a crime which will result in death or great bodily injury. For the reasons articulated by Division Five of our court in People v. Maciel (2003) 113 Cal.App.4th 679, 685 (Maciel), review denied February 24, 2004, we disagree with Garcias constitutional challenge to section 422.

As explained by Division Five:

Defendant challenges as vague the language in Penal Code section 422, willfully threatens to commit a crime which will result in death or great bodily injury. We construe the challenged language in context, taking into account the other elements that must be established in order for the statute to be triggered. Penal Code section 422 does not criminalize all threats of crimes that will result in death or great bodily injury, leaving to law enforcement to determine those threats that will result in arrest. Instead, the statute criminalizes only those threats that are so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety. This language means that not all threats of crimes that will result in great bodily injury are criminalized, but only serious threats, intentionally made, of crimes likely to result in immediate great bodily injury. Moreover, the statute also includes a specific intent element: with the specific intent that the statement . . . is to be taken as a threat. A statute that criminalizes threats of crimes that will result in great bodily injury with the intent to place the victim in sustained fear for personal safety or the safety of immediate family members adequately advises an individual and law enforcement of the conduct prohibited by the statute. One who willfully threatens violence against another, intending that the victim take the threat seriously and be fearful, cannot reasonably claim to be unaware that the conduct was prohibited. (Maciel, supra, 113 Cal.App.4th at p. 685.)

Garcias discussion regarding State v. Hamilton (Neb. 1983) 340 N.W.2d 397, in which the Nebraska Supreme Court ruled that a Nebraska terroristic threats statute was unconstitutionally vague, does not persuade us to reach a different result. First, we agree with Maciels reading of Penal Code section 422 in the constitutional vagueness context. Second, insofar as we are able to ascertain from the Nebraska case, the Nebraska statute was not, as Garcia suggests, quite similar to section 422. On the contrary, a major problem noted in the Nebraska case was that the Nebraska terroristic threats statute did not include a specific intent element, which, as Maciel correctly notes, is not the situation with the statutory language in section 422.

VI. With One Exception, Mandatory Consecutive Terms Were Proper Under

Penal Code Section 667.6, Subdivision (d), But the Error Was Harmless

Garcia contends the trial court erred by imposing mandatory consecutive terms on one of the rapes, one of the oral copulations and one act of sexual penetration pursuant to Penal Code section 667.6, subdivision (d). More specifically, Garcia contends the trial court erred in applying the mandatory consecutive sentencing scheme prescribed in section 667.6, subdivision (d), to the sexual offenses which occurred after Garcia checked on Jason in the closet and asked Cynthia if she used methamphetamine. The series of crimes within that specified time frame, says Garcia, were a continuous course of sexual activity that involved nothing more than simultaneous sexual acts and changes of position. We agree with Garcias contention only as to one count of sexual penetration by force. However, because the trial court indicated full consecutive sentences were appropriate either under the mandatory provision of section 667.6, subdivision (d) or the discretionary provision in subdivision (c), we find the error harmless.

A. The Legal Framework

Penal Code section 667.6, subdivision (d), provides that a sentencing court shall impose consecutive terms for multiple, enumerated sexual offenses committed against a single victim on separate occasions. In determining whether multiple sex crimes were committed on separate occasions, the trial court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions. (Ibid.) The trial courts finding that multiple sex crimes occurred on separate occasions is a finding based in fact, and, as such, will not be disturbed on appeal where a reviewing courts review of the record discloses substantial evidence in support of the trial courts finding. (People v. Plaza (1995) 41 Cal.App.4th 377, 384, 385 [a trial courts finding that defendant had the required opportunity to reflect upon his actions will be upheld unless no reasonable trier of fact could have so concluded]; People v. Pena (1992) 7 Cal.App.4th 1294, 1314.)

Penal Code section 667.6, subdivision (d) prescribes when the court must impose a consecutive sentence in sex offenses cases. However, if subdivision (d) is not applicable, a court always has discretion to impose full-term consecutive sentences for multiple sex convictions under section 667.6, subdivision (c). That section provides, [i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. . . . When a sentencing court employs subdivision (c), it must state a reason for imposing a consecutive sentence and a separate reason for imposing a full consecutive sentence in lieu of the ordinary one-third the middle term as provided in section 1170.1. (People v. Osband (1996) 13 Cal.4th 622, 729, citing People v. Pock (1993) 19 Cal.App.4th 1263, 1277.) It may, however, use the same reason for both choices. (Ibid.) What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c). (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. omitted.)

B. The Sentencing Setting

On November 4, 2008, the People filed a six-page sentencing memorandum which identified various factors in aggravation and mitigation, and included a computation of sentence based upon applications of Penal Code sections 667.61, 667.6, subdivisions (c) and (d). With regard to consecutive sentencing on counts 2 through 9, the Peoples sentencing memorandum explained that consecutive sentences were justified under the mandatory provisions of section 667.6, subdivision (d), because Garcias multiple sex crimes occurred on separate occasions within the meaning of that subdivision. The Peoples memorandum further explained, [i]n the event that the court [was] uncomfortable using the mandatory sentencing scheme [prescribed by section] 667.6(d), it [could] nevertheless impose consecutive sentences under [section] 667.6(c). Under either subdivision, the memorandum calculated that the imposition of consecutive sentences would provide for an aggregate determinate sentence of 168 years (it actually added up to 168 years 8 months), and included a short-hand sentencing matrix showing the calculation of such a sentence.

At the sentencing hearing on November 5, 2008, the trial court made the following oral statements explaining its reasons for imposing the aggregate determinate term of 168 years 8 months:

THE COURT:  . . .  I have received, and very much appreciate, the Peoples detailed sentencing memorandum. And I am inclined to follow the recommendations of the People. [] [Defense counsel], did you want to be heard about that?

[DEFENSE COUNSEL]: Yes, Your Honor. [] I would like the court to please consider the fact that my client has no prior record. And as another mitigating circumstance, that he voluntarily acknowledged wrongdoing at an early stage of the whole criminal process. I believe the evidence showed that he made statements to the police officer indicating his implication in this matter. [] And finally, Your Honor, I would ask the court to consider concurrent time on all the sex crimes as, again, the evidence shows that they were basically one continuous act. . . .  []  . . .  []

THE COURT:  []  . . .  [] . . .  The court denies probation. I am sentencing the defendant in accordance with the matrix presented to me by the People. [] The court selects the high term, having heard the evidence as the jury did from the alleged victim in the case, in particular that the crime[s] involved violence, bodily harm, threats of harm, cruelty, callousness. [] There was the use of a weapon. It was a very vulnerable victim, a high school student. There was also testimony of efforts to dissuade witnesses from testifying. [] And there was certainly an indication of planning, sophistication and professionalism, because the defendant came to the door, left, and returned with shoestrings and a weapon in his possession . . . , suggesting, again, significant planning and sophistication. [] So the sentence will be computed as recommended by the People. . . . []  On count 1, the sentence is 25 years to life. []  On counts 2 through [9], imposed consecutively, the term is eight years. Under 12022.53(b), the court imposes an additional ten years because of the use of a weapon, all to run consecutively. []  On count 10, the sentence is six years, again plus the gun enhancement of ten years. []  On count 11, the sentence is one year, four months, plus three years, four months, which is one-third the enhancement under 12022.53(b). [] Under count 12, its eight months plus one year and four months, again one-third of the midterm of 12022.5. [] And exactly the same sentence on count 13, eight months plus one year, four months, one-third of the midterm under 12022.5. [] That makes the total determinate term 168 years, plus an indeterminate term of 25 years to life. . . .  []  . . .  [] I just want to also make clear for the record that on counts 10 through 13, I am sentencing the defendant in accordance with Penal Code section 1170. [] And that under counts 2 through 9, I am sentencing the defendant pursuant to Penal Code section 667.6(c) or (d). []  Count 1 is a sentencing under Penal Code section 667.61.  []  . . .  [] I have also taken into account the circumstances in mitigation suggested by [defense counsel], however, I feel they are outweighed by the circumstances in aggravation.

C. Analysis

Substantial evidence supports the trial courts finding that Garcia had a reasonable opportunity to reflect upon his actions between forcing Cynthia to orally copulate him on the edge of the bed, and then sodomizing her on the bedroom floor. The two events were not, as Garcia asserts, a mere changing of bodily positions to facilitate the next sex act. While we are willing to accept that evidence of a mere changing of bodily positions is not sufficient, by itself, to establish the required reasonable opportunity to reflect, especially where the change is accomplished within a matter of seconds (People v. Pena, supra, 7 Cal.App.4th at p. 1316) this principle has no application in Garcias current case. Far more than a mere changing of positions occurred between the crimes which Garcia cites in his argument. During the act of oral copulation which occurred on the edge of the bed, after Garcia checked on Jason in the closet, Cynthia began gagging, and Garcia possessed the wherewithal, grotesque as it was, to think through the possible outcomes of what was happening, and to tell Cynthia that she better not vomit or he would make her eat it. Garcia then stopped his act of forcible oral copulation and ordered Cynthia to get off the bed, and to get down on the floor on her knees with her hands on the bed. Garcia then relocated himself behind Cynthia, put the gun to her back, spit saliva into his other hand, and rubbed it on her anus and vagina. He then sodomized her. The evidence establishing this sequence of events amply supports the trial courts factual finding that Garcia had a reasonable opportunity to reflect upon his actions between his crime of forcible oral copulation and his decision to commit his ensuing crime of sodomy.

The same reasonable opportunity for reflection is not, however, disclosed by the record with regard to Garcias crime of sodomy and his sexual penetration crime. On the contrary, the record discloses that those two sex crimes occurred simultaneously. We have no doubt that Garcia could have reflected on whether he should have committed a second, simultaneous sex crime after he had already begun his crime of sodomy, but there was no intervening period in which he chose to resume sexually assaultive behavior against his victim because the sexually assaultive behavior which he initiated when he began sodomizing Cynthia never ended before he initiated his sexual penetration crime. Cynthia testified that Garcia was sticking his fingers, too while his penis was in her anus.

While we find the mandatory provisions of Penal Code section 667.6, subdivision (d) were not appropriately applied to this one count, we need not remand this case for resentencing on it. The prosecutors sentencing memorandum set forth a concise yet specific explanation of the discretionary choice a court has when choosing between sections 667.6, subdivision (c) and 1170.1. The trial court read the memorandum and after having done so, stated clearly that its intention was to impose full-term consecutive sentences on counts 2 through 10, whether it utilized the mandatory section 667.6, subdivision (d) or the discretionary provision found in section 667.6, subdivision (c). Under such circumstances, remand is unnecessary. (People v. Belmontes, supra, 34 Cal.3d at p. 348, fn. 8.)

VII. The Trial Courts Stated Reasons in Support of its Sentencing Decisions

Were Sufficient

Apart from his challenge to the sufficiency of the evidence in support of the trial courts findings that he committed three of his sex crimes on separate occasions, i.e., the trial courts findings underpinning the three specific mandatory consecutive terms discussed in the previous part of this opinion, Garcia contends his sentence should be vacated in its entirety and his case remanded for resentencing, because the trial court did not adequately explain its reasons for its findings that his sex crimes were committed on separate occasions within the mandatory consecutive sentencing scheme prescribed in Penal Code section 667.6, subdivision (d), and/or did not adequately explain its reasons justifying the application of the alternative, discretionary consecutive sentencing scheme authorized under section 667.6, subdivision (c). We disagree.

A. Garcia Waived his Insufficient Statement of Reasons Sentencing

Contention

Where a trial court has discretion to tailor a defendants sentence based upon the particular circumstances of his or her case, a defendant cannot complain for the first time on appeal about the trial courts failure to state reasons for a sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 348-353.) The reasons for this rule are both practical and straightforward. (Id. at p. 353.) Deficiencies in a trial courts statement of reasons are easily prevented and corrected when called to the courts attention, and a forfeiture rule in this context operates to reduce the number of errors committed in the first instance, and to preserve the judicial resources otherwise used to correct them. (Ibid.) Forfeiture is not the rule where a sentence is unauthorized under the law; a sentence is unauthorized where it could not lawfully be imposed under any circumstance. (Id. at p. 354.)

Garcias current case falls squarely within these forfeiture rules insofar as Penal Code section 667.6, subdivision (c), is concerned.[4] There is no legal dispute that, in the event trial court found Garcia had not committed his