P. v. Oliver
Filed 3/5/13 P. v. Oliver CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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opinion has not been certified for publication or ordered published for
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARCUS EDWARD OLIVER,
Defendant and Appellant.
A129031
(
Super. Ct. No. 05-090477-1)
A
jury found defendant Marcus Edward Oliver (appellant) guilty on multiple counts
alleging sexual misconduct against
multiple minors, and the trial court sentenced him to 78 years to life in
prison. Appellant raises claims of
instructional and sentencing error, and we modify the judgment to strike
certain determinate terms improperly imposed by the trial court. Otherwise, we affirm.
Background
Appellant
was charged by information with 16 counts alleging sexual misconduct against 6
different minors. At trial, the four
female victims testified, among other things, that appellant touched their
genitals and/or bottoms with his hand, penis, and/or mouth.
inserted his penis into their vaginas; one of the two testified this happened
several times, once involving the use of force.
In
March 2010, a jury found appellant guilty as charged on 12 of the counts,
guilty of a lesser offense on one count, and not guilty on the remaining three
counts. The charges on which the jury
found appellant guilty included six counts of commission of a lewd act on a
minor (Pen. Code, § 288, subds. (a), (c)(1))
(counts 1, 2, 7, 11, 12 & 13); two counts of sexual penetration of a minor
(§ 289, subd. (i)) (counts 3 & 4); two counts of assault with intent
to commit a lewd act or sexual penetration of a minor (§ 220, subd. (a))
(counts 5 & 6); attempted oral copulation of a minor (§§ 288a, subd.
(b)(1), 664) (count 8); and assault with intent to commit rape (§ 220,
subd. (a)) (count 10). As to four of the
lewd act counts, counts 7, 11, 12 and 13, the jury found true the allegation
that appellant committed the offense against more than one victim
(§ 667.61, subds. (b), (c) & (e)).
On count 14, the jury found appellant guilty of the lesser included
offense of battery (§ 242).
In
June 2010, the trial court sentenced appellant to 78 years to life in
prison. This appeal followed.
Discussion
I. There
Is No Reasonable Likelihood the Jury Misunderstood the Elements of Assault with
Intent to Commit Rape
Appellant
contends the trial court’s instructions led the jury to believe it could find
him guilty of assault with intent to commit rape without proof he assaulted the
victim. His claim is without merit.
“It
is settled that, even in the absence of a request, a trial court must instruct
on general principles of law that are commonly or closely and openly connected
to the facts before the court and that are necessary for the jury’s
understanding of the case.
[Citations.]†(
1047.) “[I]nstructions are not
considered in isolation. Whether
instructions are correct and adequate is determined by consideration of the
entire charge to the jury.
[Citation.]†(
619, 677.) In considering a claim of
instructional error, the issue is “whether there is a reasonable likelihood
that the jury misconstrued or misapplied the†court’s instructions. (People
v. Clair (1992) 2 Cal.4th 629, 663.)
We presume the jurors are intelligent and capable of understanding and
correlating all the instructions given to them.
(People v. Riley (2010) 185
Cal.App.4th 754, 767.)
A.
Background
The
trial court instructed the jury on the charges in counts 9 and 10 that
appellant had committed assault with intent to commit rape on one of the
victims pursuant to CALCRIM No. 890 (defining assault with intent to commit a
sex offense) and CALCRIM No. 1000 (defining rape). The court’s CALCRIM No. 890 instruction also
encompassed the charges in counts 5 and 6 that appellant had committed assault
with intent to commit a lewd act or sexual penetration. Specifically, the court’s written instruction
provided,
in part, as follows: “[Appellant] is
charged in Counts Five, Six, Nine and Ten with assault with intent to commit
[a] lewd act upon a child or sexual penetration of a person under age 16 or
assault with intent to commit rape in violation of Penal Code section 220. [¶] To prove that [appellant] is guilty
of this crime, the People must prove that:
[¶] 1. [Appellant] did an act that by its nature would
directly and probably result in the application of force to a person; [¶] 2. [Appellant] did that act
willfully; [¶] 3. When [appellant] acted, he was aware of facts that
would lead a reasonable person to realize that his act by its nature would
directly and probably result in the application of force to someone; [¶] 4. When [appellant] acted, he
had the present ability to apply force to a person; [¶] AND [¶] 5. When [appellant] acted,
he intended to commit a lewd act upon a child or sexual penetration of [a]
person under age 16 or assault to commit rape.â€
The
court further instructed the jury with CALCRIM No. 890 that, “[t]o decide
whether [appellant] intended to commit [a] lewd act upon a child or sexual
penetration of [a] person under age 16 or assault with intent to commit rape,
please refer to the instructions which define those crimes.†Subsequently, the court orally instructed the
jury using a modified version of CALCRIM No. 1000, in part as follows: “To prove that [appellant] is guilty of
assault with the intent to commit rape, the People must prove that [appellant]
had attempted to have sexual intercourse with a woman; he and the woman were
not married to each other at the time of the intercourse; the woman did not
consent to the intercourse; and [appellant] accomplished the intercourse by
force, violence, duress, menace or fear of immediate and unlawful bodily injury
to the woman or to someone else.†The
court read other instructions to the jury and adjourned, leaving open the option
of giving further instructions the next day.
The
next day, the prosecutor told the court the version of CALCRIM No. 1000 read by
the court had incorrectly told the jury the prosecution had to prove appellant
“attempted†to have sexual intercourse, rather than “intended.†When the jury returned, the court stated,
“Ladies and gentlemen, I’m going to finish reading several of the instructions
this morning. One of them is a
correction of an instruction that I read yesterday, and it relates to the definition
of assault with intent to commit rape, so I’ll read that one first. [¶] The definition of assault with
intent to commit rape is as follows: The
defendant had intended to have sexual intercourse with a woman; he and the
woman were not married to each other at the time of the intercourse; the woman
did not consent to the intercourse; and the defendant intended to accomplish
the intercourse by force, violence, duress, menace or fear of immediate and
unlawful bodily injury to the woman or to someone else.â€
B.
Analysis
Appellant
contends the trial court’s instructions led the jury to believe it could find
him guilty of assault with intent to commit rape without proof he assaulted the
victim, because the court’s version of CALCRIM No. 1000 purported to define
“assault with intent to commit rape†and the instruction did not require proof
of an assault. We disagree. Although it was misleading that the
instruction purported to provide the “definition
of assault with intent to commit rape†(italics added), CALCRIM No. 890
expressly informed the jury that, in order to convict appellant on counts 9 and
10, there had to be proof of an assault—that appellant “did an act that by its
nature would directly and probably result in the application of force to a
person.†CALCRIM No. 890 made it clear
the purpose of CALCRIM No. 1000 was merely to define the intent required for
the charge of assault with intent to commit rape.
Moreover,
the closing arguments of both the prosecutor and defense counsel made clear
evidence of an assault was required to support the charge of assault with
intent to commit rape. (See
438 [prosecutor’s argument can clarify ambiguous jury instructions];
1202 [“The reviewing court also must consider the arguments of counsel in
assessing the probable impact of the instruction on the jury.â€].) During the prosecutor’s closing, he first
explained the term assault as it related to counts 5 and 6 (assault with intent
to commit a lewd act or sexual penetration), using a missed punch as an example
of an assault. The prosecutor again
referred to the punching example in discussing counts 9 and 10, and the
prosecutor argued the evidence showed an assault, stating “[he] did an act
that, by its nature, would directly and probably result in the application of
force to a person. Well, she described
him having sexual intercourse with her.
He touched her in a way that put force on her body. Force doesn’t have to be hurting or causing
injury. It’s any kind of touching counts
for force. . . .
[E]lement 1 has been proved.â€
Notably, the reference to element one was clearly a reference to the
first element in CALCRIM No. 890, because the prosecutor then proceeded to
discuss the additional elements in the instruction, including willfulness,
awareness, present ability, and intent to commit rape. Defense counsel’s closing argument, although
less explicit in detailing the elements of the offense, argued, with regard to
counts 7, 8, 9 and 10, “[t]here’s no evidence of assault.â€
Considering
the instructions as whole and in light of the
no reasonable likelihood the jury understood the charge of assault with intent
to commit rape as requiring only evidence of the intent to commit rape without
an actual assault.
title="">[5]
II. Appellant
Has Not Shown the Trial Court Misunderstood Its Sentencing Discretion
The
jury found appellant guilty of four counts of committing a lewd act on a child
in violation of section 288, subdivision (a)—counts 7, 11, 12, and 13. As to each count, the jury found that
appellant committed the offense against more than one victim
(§ 667.61). “ ‘Section 667.61
requires the trial court to impose a life sentence when the defendant is convicted
of an enumerated sexual offense and the People plead and prove one or more of
the specified aggravating circumstances.’
[Citation.]†(
1515, 1521 (Valdez).) Under section 667.61, a person convicted of
the commission of a lewd act on a child under 14 (§ 288, subd. (a)) against
more than one victim must be sentenced to 15 years to life for each
conviction. (§ 667.61, subds. (b),
(c)(8), (e)(4);
title="">[6]
People v. Rodriguez (2005) 130
Cal.App.4th 1257, 1262 (Rodriguez).) Section 667.61 does not require that multiple
15-year-to-life sentences under the statute be served consecutively; rather, it
is within the trial court’s discretion to impose consecutive or concurrent
terms. (Valdez, at p. 1524; Rodriguez,
at p. 1262.) In the present case, the
trial court imposed consecutive terms.
Appellant
asserts the trial court was unaware it had discretion to choose concurrent
rather than consecutive sentencing on the four section 667.61 sentences. However, the court is presumed to have been
aware of and followed the applicable law in making its sentencing choices. (People
v. Mosley (1997) 53 Cal.App.4th 489, 496.)
Where the record shows the trial court was unaware of the scope of its
discretion, the case generally must be remanded to permit the court to exercise
its discretion. (Rodriguez, supra,
130 Cal.App.4th at p. 1263.)
However, “remand is unnecessary if the record is silent concerning
whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent
record. [Citation.]†(People
v. Brown (2007) 147 Cal.App.4th 1213, 1229; see also People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [“[W]e cannot
presume error where the record does not establish on its face that the trial
court misunderstood the scope of [its] discretion. [Citation.]â€].)
Appellant
points to nothing in the record demonstrating that the trial court
misunderstood the scope of its discretion.
Appellant does point out that the probation report and defense counsel’s
sentencing memorandum did not indicate that the court had discretion to impose
concurrent sentences. But the
prosecutor’s sentencing memorandum and argument did make it clear the court had such discretion, because the
prosecutor argued the circumstances justified imposition of consecutive
sentences. The prosecutor wrote, “It is
clearly required that a life sentence be imposed for counts 7, 11, 12, and 13
since the jury found true the 667.61 enhancements as to those counts. The only question is whether the court should
run those sentences concurrent to the determinate term and to each other. . .
. Given the gravity of [appellant’s]
crime, and the numerous factors in aggravation, the People believe it is not
only proper for the court to impose four life terms, but justice demands that
those [15-year-to-life] terms be run consecutive to one another
. . . .†At the
sentencing hearing, the prosecutor asked the trial court to run the section
667.61 sentences consecutive to each other and to make findings as to why.
We
will not presume from the court’s silence at the sentencing hearing that it
misunderstood the scope of its discretion.
Appellant’s contention fails.
III. The
Trial Court Erred in Imposing Both Determinate and Indeterminate Sentences
The
trial court sentenced appellant on each of counts 7, 11, 12, and 13 to both an
indeterminate term of 15 years to life pursuant to section 667.61 and a
determinate term of six years to be served concurrent to the determinate term
imposed on the other counts. The parties
agree the court erred, because section 667.61 is an alternative sentencing
scheme, not an enhancement that is added to a base term. (See People
v. Anderson (2009) 47 Cal.4th 92, 102; People
v. Acosta (2002) 29 Cal.4th 105, 118.)
We will modify the judgment to strike the determinate terms imposed on
counts 7, 11, 12, and 13. As these terms
were ordered to be served concurrent to the determinate terms imposed on other
counts, appellant’s total sentence of 78 years to life will remain unchanged.
Disposition
The
judgment is modified to strike the six-year determinate terms imposed on counts
7, 11, 12, and 13, and, as so modified, the judgment is affirmed. The matter is remanded to the trial court for
the limited purpose of correcting the abstract of judgment and forwarding the
corrected abstract to the California
Department of Corrections and Rehabilitation.
SIMONS,
J.
We concur.
JONES, P.J.
NEEDHAM, J.
a thorough description of the complex set of charges against appellant or the
extensive evidence adduced at trial.
involving two male victims.
