P. v. Soto
Filed 1/7/13 P. v. Soto CA4/2
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANK
SOTO,
Defendant and Appellant.
E055773
(Super.Ct.No. FVA1101176)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Ingrid Adamson Uhler, Judge.
Affirmed.
John
F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Bradley Weinreb and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found defendant and appellant Frank Soto guilty of (1) attempted forcible
rape (Pen. Code, §§ 664, 261, subd. (a)(2));
(3) kidnapping (§ 207). The
trial court sentenced defendant to prison for a term of eight years. Defendant raises three issues on appeal: (1) his trial counsel was ineffective for
failing to request the jury be instructed on the law of
attempted rape; (2) his trial counsel was ineffective for not objecting to the
instruction that battery is a lesser included offense of attempted rape; and
(3) the trial court abused its discretion by imposing the upper prison term for
the kidnapping conviction. We affirm the
judgment.
A. PROSECUTION’S CASE
The
female victim is five feet, four inches tall and weighs 125 pounds. Defendant is male, six feet tall, and 180
pounds. The victim met defendant one
time prior to the incident at issue in this case. The victim met defendant through a friend;
the victim and defendant have not dated.
On July 29, 2011, at approximately 7:00 p.m., the victim went to her
friend Jacob’s house in Fontana. The victim then went to a pool hall for about
one hour, and then returned to Jacob’s house.
Defendant was also at Jacob’s house because there was a party taking
place. While at Jacob’s house, the
victim drank one beer and smoked marijuana.
At
approximately 2:00 a.m., the victim and
defendant decided to leave the party to get food. Defendant drove his vehicle, a Jeep, and the
victim went with him—they were the only two people in the Jeep. The victim asked defendant where they were
going, but defendant did not respond.
Defendant stopped the vehicle and tried to touch the victim’s hair with
his hand. The victim struck defendant’s
hand with her hand and said, “‘Don’t touch me.’†Defendant grabbed the victim’s arm and said,
“‘Shut the fuck up.’†The victim exited
the car and ran. Defendant chased after
the victim and pushed her to the ground so that she was on her back. Defendant placed his hands over the victim’s
nose and mouth, causing her to be unable to breathe or scream.
When
defendant removed his hands from the victim’s face, he held the victim by her
shoulder and instructed her to return to the Jeep. The victim walked back to the vehicle because
she was scared, and defendant was physically walking her toward the Jeep. Defendant placed the victim in the passenger
seat and closed the door. The victim
again exited the Jeep and ran. Defendant
again chased after the victim. Defendant
caught the victim and placed her in a chokehold. The victim told defendant she would return to
the Jeep, and defendant released the chokehold.
Defendant physically walked the victim back to the Jeep by holding her
arm and shoulder.
Defendant
placed the victim in the passenger seat, and then began driving. After approximately two minutes, defendant
and the victim arrived on a dead-end street where there are no buildings, just
dirt fields. The victim tried to jump
out of the Jeep while it was moving, but defendant grabbed her by her
hair. The victim’s foot was dragging
outside the Jeep, so she placed it back inside the vehicle and closed the door,
due to defendant holding her by her hair.
Defendant stopped the vehicle at the end of the cul-de-sac, where the
street dead-ends into railroad tracks.
The victim tried to exit the Jeep through the window. The victim was able to move half of her body
through the window, but defendant grabbed her leg and pulled her back inside
the vehicle.
After
more struggling, the victim was able to exit the Jeep. The victim ran, but defendant caught her and
pushed her down into a pile of dirt, so that she was lying on her back. Defendant removed the victim’s jeans, using
one hand; his other hand pinned the victim to the ground. The victim repeatedly tried to stand up, but
defendant continued to push her down.
After removing the victim’s jeans, defendant removed the victim’s
panties. The victim said to defendant,
“‘Get off of me. Leave me alone. Don’t touch me. Please stop.’â€
Defendant
pulled his pants down and tried to place his penis in the victim’s vagina
approximately seven times. Defendant’s
penis touched the victim’s vagina, but the victim squeezed her legs together to
prevent defendant from fully penetrating her vagina. At one point, defendant penetrated the
victim’s vagina approximately one-half inch.
Defendant repeatedly said, “[I’m] drunk and [I] can’t do this, [I’m]
drunk.†Defendant pulled himself off the
victim and told her, “‘We could do it better in the car.’†The victim put her jeans back on, but could
not find her panties.
The
victim returned to defendant’s Jeep, although she did not want to. Defendant instructed the victim to go into
the backseat portion of the vehicle and remove her jeans. The victim said, “‘No . . . [c]an you take me
home?’†Defendant replied, “‘No, no,
let’s just do this.’†Defendant again
instructed the victim to take off her jeans.
The victim did not remove her pants, and defendant continued to tell her
to take off her jeans. Defendant, who
was also in the backseat with the victim, became angry when she did not remove
her pants. Defendant said, “‘Take off
your pants. I don’t want to hurt
you.’â€
Defendant
pulled the victim’s arm and moved her so that she was on top of him while he
was seated. The victim told defendant,
“‘If you could just take me home [then] I won’t say nothing.’†Defendant responded, “‘Let’s just
finish.’†A car drove by, which scared
defendant. Defendant allowed the victim
to move to the passenger seat, and he moved to the driver’s seat.
Defendant
drove to the dirt pile where he initially pushed the victim down. Defendant retrieved his wallet and the
victim’s sandals from the sidewalk. When
defendant returned to the car he said, “‘Sorry.
I don’t know what I was thinking.’â€
Defendant began driving again.
The victim asked defendant to take her home. Defendant said, “‘No. Let’s just go get something to eat.’†The victim pointed out a Carl’s Jr. and a
Jack in the Box.
Defendant
drove to the Carl’s Jr.; defendant and the victim went through the restaurant’s
drive-thru. The victim did not try to
exit the car at the restaurant because she believed defendant would take her
home. The victim did not ask anyone at
the restaurant for help because she was scared for her safety. After waiting approximately five minutes for
their food, the victim again asked defendant to take to her home. Defendant said, “‘If we could just finish
this, then I’ll take you home, I promise,’†referring to sexual intercourse.
Defendant
asked the victim where she wanted to go.
The victim directed defendant toward Jacob’s house. The victim wanted to be near Jacob’s house so
she could run for help. Defendant parked
the car almost across the street from Jacob’s home. Defendant instructed the victim to get into
the backseat area of the Jeep and remove her jeans. The victim repeatedly told defendant
“‘No.’†Defendant looked angry, which
scared the victim.
Once
the two were in the backseat, defendant tried to remove the victim’s pants by
pulling on them with both of his hands.
Defendant’s pants were halfway off, and his penis was exposed. The victim saw defendant’s penis was
erect. Defendant began masturbating. When defendant stopped masturbating he leaned
on top of the victim and pulled her pants down to her knees. The victim was not wearing panties due to the
prior incident at the dirt pile.
Defendant
tried “[a] couple†times placing his penis in the victim’s vagina, but he was
mostly unsuccessful. The victim moved
and squeezed her legs together. At one point,
defendant’s penis penetrated the victim’s vagina approximately one-half of an
inch. Defendant said to the victim, “‘I
know you don’t want to, but I do.’†The
victim told defendant she did not feel well, and acted as though she were going
to vomit. The victim asked to go outside
of the car to breathe fresh air.
Defendant said, “‘Okay,’†and allowed the victim to exit the car. Defendant and the victim pulled up their
pants. The victim sat on the sidewalk,
and defendant sat next to her. Defendant
said, “‘Oh, I’m sorry about this. I
don’t know what I’m thinking.’â€
Defendant rubbed the victim’s back.
The
victim asked defendant if she could go to the store to buy a beverage. Defendant said, “‘No.’†The victim replied, “‘I’m just going to get a
drink and I’ll be fine.’†Defendant
said, “‘Okay.’†The victim began walking
toward a store. Defendant walked behind
her, but then told her to wait because he forgot his wallet. When the victim saw defendant open the Jeep
door, she ran across the street to a bakery.
When the victim entered the bakery it was approximately 5:45 a.m., and
the victim was not wearing shoes.
The
victim ran behind the bakery counter and threw herself on the floor to
hide. The victim told the cashier that a
person was trying to rape her. A bakery
employee drove the victim to Jacob’s house.
At Jacob’s house, the victim told Jacob and her cousin that defendant
tried to rape her. The victim’s cousin
called the victim’s aunt, who in turn called the police.
The
victim spoke to San Bernardino County Sheriff’s Deputy Norkunas. The victim appeared “distraught†and “worn
down.†The victim’s shirt was dirty,
torn, and wrinkled. The victim’s makeup
was smeared and she had injuries on her face.
The victim had bruises on her arms and hip. The victim’s foot was injured from being
dragged on the ground when she tried to jump from the moving the vehicle.
Inside
defendant’s Jeep, San Bernardino County Sheriff’s Deputy McDaniel found cold
food from Carl’s Jr. A security tape
from the bakery showed the victim running inside, looking around, and hiding
behind the counter. Deputy Norkunas
found the victim to be coherent, and not intoxicated. The victim told the deputy that defendant’s
penis entered her vagina approximately one-half inch when they were stopped at
the cul-de-sac, and when they were stopped near Jacob’s house.
The
victim was taken to a hospital where she was examined by a forensic nurse. The nurse saw: holes where the victim’s eyebrow piercing had
been pulled out; a bruise on the victim’s right forearm; a bruise on the back
of her right arm; multiple bruises and an abrasion on her left arm; a scratch
in the right upper chest/breast area; two scratches on her back, near her bra
line; an abrasion at her waist, near her jeans line; a scratch several inches
long on her right buttock; bruises on her cheek, chin, and mouth; an abrasion
on her upper lip, where it likely struck her teeth; bruises on her legs, near
the knee; scrapes and bruises on her right foot; and bruises on her right
ankle.
Vaginal
and anal examinations revealed an abrasive injury at the base of the victim’s
vaginal opening. The abrasion was
consistent with defendant being on top of the victim, defendant’s penis
partially penetrating the victim’s vagina, while the victim squeezed her legs
together to prevent further penetration.
Defendant’s
interview with Deputy McDaniel was recorded.
The recording was played during trial.
During the interview, defendant told the deputy people at the party were
drinking, and people were drinking at the pool hall. Defendant said he recalled driving a friend
home, but then he “blanked†out and did not remember anything until the
following morning at 6:00 a.m. Defendant
stated he did not recall going to Carl’s Jr., although there was food from
Carl’s Jr. in his car. Deputy McDaniel
informed defendant that defendant and the victim went to Carl’s Jr.
together.
Deputy
McDaniel told defendant about the victim’s accusations that defendant tried to
rape her. The deputy said defendant did
not appear to be a rapist. The deputy
then said, “It’s the alcohol, it’s the alcohol that made you do that, I’m
sure. I’m not positive, I don’t know
you, I wasn’t there. . . .†Defendant
responded, “Even with alcohol, I never done nothing like that. Not even close.†Defendant explained that he is 19 years old,
but his friend was buying him beer, so he drank “[b]eer after beer.†Defendant agreed to let the deputy search his
car. In the car, Deputy McDaniel found a
woman’s shirt.
Defendant
slowly began recalling some of the events of the night. Defendant recalled driving to his house and
driving to work. Defendant recalled
seeing a person walking in the middle of a street.
B. DEFENDANT’S CASE
We
now present defendant’s version of the events.
On the night of July 29 and 30, 2011, defendant went to Jacob’s home and
then to a pool hall. Defendant went to
the pool hall at approximately midnight and left at 2:00 a.m. to return to
Jacob’s house. Defendant had four or
five beers while at Jacob’s house.
Defendant did not smoke marijuana at the party. At approximately 4:00 a.m. defendant and the
victim left the party to purchase more beer.
Defendant drove his vehicle; he and the victim were alone in the
Jeep.
On
the way to purchase beer, defendant decided to stop at Carl’s Jr. He paid for the Carl’s Jr. food using money
from his wallet. Defendant and the
victim waited approximately 10 minutes for their food. Defendant placed his wallet in the vehicle’s
cup holder. After receiving their order,
defendant drove back toward Jacob’s house.
On
the way back to the house, defendant realized his wallet was missing. Defendant accused the victim of stealing his
wallet. As defendant searched for his
wallet, the victim handed him the wallet.
Defendant called the victim a bitch.
The victim became angry and slapped defendant. Defendant pushed the victim into the passenger
door. The victim repeatedly slapped
defendant as he continued driving.
Defendant grabbed the victim’s neck and pushed her toward the passenger
door.
The
victim opened the passenger door and tried to exit the car while the car was
moving at approximately 25 miles per hour.
Defendant grabbed the victim’s left upper arm or shoulder, stopping her
from leaving the car. Defendant then
stopped the car and instructed the victim to “get out.†The victim exited the car, and defendant
drove away. Defendant left the victim
approximately one mile from Jacob’s house.
Defendant began driving home, but then turned around and went back to
find the victim.
Upon
finding the victim, defendant offered her a ride home. The victim rejected defendant’s offer and
“ran off.†Defendant drove home. Defendant never attempted to engage in sexual
intercourse with the victim. Defendant
arrived home around 5:25 a.m. Defendant
stayed at home for approximately 20 minutes, and then left to go to work.
While
at work, defendant received a telephone call from Jacob informing defendant the
police were looking for him. Defendant
left work and went to the police station.
Defendant spoke to Deputy McDaniel.
Defendant was nervous during the interview because he had struck the
victim. Because defendant was scared of
being incarcerated, he lied to the deputy and said he had blacked out and did
not recall much of the evening. The
prosecutor asked defendant, “Did you think lying to the officers was going to
clear up what had happened?†Defendant
responded, “I wanted to justify my actions by what I—by blaming it on the
alcohol.†The prosecutor asked
defendant, “Is it fair to say you’ll lie to protect yourself?†Defendant replied, “Yes.†The prosecutor asked, “[Y]ou decided to lie
to [the deputy]?†Defendant responded,
“Yes.â€
During
closing argument, defendant’s trial counsel asserted certain facts were known,
such as defendant and the victim both attended a party, and the victim
willingly left the party in defendant’s vehicle. Defense counsel noted the victim was at
Carl’s Jr. for five to 10 minutes, but never asked anyone for help, fought with
defendant, or tried to run away. Defense
counsel asserted the victim’s testimony that she repeatedly tried to run away
from defendant was not credible because “the one place where there are tons of
people, where there’s lots of help, where there are actual witnesses,†she
chose not to run away.
Defendant’s
trial counsel faulted the victim for inconsistencies in her story and for
requesting the bakery employee take her home instead of contacting police. Defense counsel suggested the victim fabricated
the rape story because she did not want to admit to her aunt that she stole
defendant’s wallet. Defense counsel also
faulted the prosecutor for failing to provide DNA evidence linking defendant to
the victim.
A. VOLUNTARY INTOXICATION
1. PROCEDURAL
HISTORY
During
a discussion of jury instructions, the following exchange occurred:
“The
Court: . . . Obviously, we’ve heard
[defendant’s] prior inconsistent statement to law enforcement. There’s a lot of mention about his level of
intoxication.
“[Defense
counsel]: Right.
“The
Court: Intoxication voluntary,
obviously, can be a defense to specific intent crimes. You’re probably most likely going to get
attempted rape as a lesser included offense[] to all the charges . . . based on
[the victim’s] testimony, okay? [¶] . . .
[¶] Now, in regards to the
intoxication, now that he’s testified, he makes it very clear that he does
remember what happened, that intoxication really is not a defense because he’s
just saying he didn’t do it.
“[Defense
counsel]: Correct.
“The
Court: So I don’t know if you’re
requesting voluntary intoxication or—because it would be inconsistent with your
defense. You’re not requesting it?
“[Defense
counsel]: At this point I am not.
“The
Court: Okay. So I just want to make that very clear.â€
2. ANALYSIS
Defendant
contends his trial counsel was ineffective for failing to request a jury
instruction on the topic of voluntary intoxication as it relates to
“[A]
defendant claiming the ineffective assistance of counsel is required to show
both that counsel’s performance was deficient and that counsel’s errors
prejudiced the defense. [Citation.] . .
. ‘[T]his requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial . . . .’â€
(People v. Hernandez (2012) 53
Cal.4th 1095, 1105.) “[C]ounsel does not
render ineffective assistance by choosing one or several theories of defense
over another. [Citation.]†(People
v. Cunningham (2001) 25 Cal.4th 926, 1007.)
A
trial court is obligated to act on its own in instructing “on a particular
defense only if it appears the defendant is relying on such a defense, or
substantial evidence supports the defense and it is consistent with defendant’s
theory of the case. [Citation.]†(People
v. Booker (2011) 51 Cal.4th 141, 179.)
A trial court does not have a sua sponte duty to give a pinpoint
instruction on the law of voluntary intoxication (People v. Pearson (2012) 53 Cal.4th 306, 325), thus, defense
counsel must request such an instruction.
Defendant
testified that he lied to Deputy McDaniel about drinking so much alcohol that
he blacked out. Defendant explained that
he was scared of being incarcerated so he lied.
In particular, defendant testified that he lied by “blaming it on the
alcohol.†At trial, it was established
that defendant was 19 years old, six feet tall, and 180 pounds. Defendant testified that he drank four or
five beers at Jacob’s house on the night of the incident. Defendant denied that he attempted to engage
in sexual intercourse with the victim.
Given
defendant’s testimony, it was reasonable for defense counsel to decline the
voluntary intoxication instruction because defendant was not claiming to be
drunk when attacking the victim, instead he testified the attempted rape did
not occur. (See People v. Saille (1991) 54 Cal.3d 1103, 1117-1120 [voluntary
intoxication negates specific intent, it does not set forth a defense].) Further, defendant’s testimony concerning the
amount of beer he consumed could contradict a conclusion that he was
intoxicated, given his height, weight, and the length of the party. In other words, defense counsel chose to
follow the innocence defense rather than the voluntary intoxication
defense. Trial counsel’s selection was
reasonable given the evidence produced at trial. The choice to present the innocence defense
over the intoxication defense is not a decision that creates ineffective
assistance of counsel. (
not render ineffective assistance.
Defendant
contends “regardless of the innocence theory of defense, the jury needed
guidance regarding how to consider the intoxication evidence should it reject
this defense, which it did in this case.
No reasonably effective defense counsel would ever forego a viable
fallback defense should the jury disbelieve the defense presented to it.†Defendant points to the evidence that defendant
was intoxicated, such as the statement that he consumed four or five
beers.
Defendant’s
argument is not persuasive because it appears trial counsel made a tactical
decision to forego the intoxication instruction given defendant’s testimony
that he never attempted to rape the victim.
The decision to not present conflicting theories of the case could be
considered a wiser choice than presenting a “fallback†theory. (People
v. Jones (1991) 53 Cal.3d 1115, 1138 [“The presentation of conflicting
defenses is often tactically unwise because it tends to weaken counsel’s
credibility with the jury.â€].) In sum,
it appears defendant’s trial counsel made a reasonable tactical decision, and
therefore rendered effective assistance of counsel.
B. LESSER INCLUDED OFFENSE
1. PROCEDURAL
HISTORY
Defendant
was charged with the following offenses:
(a) attempted forcible rape (§§ 664, 261, subd. (a)(2)—count 1); (b)
forcible rape (§ 261, subd. (a)(2)—count 2); (c) forcible rape (§ 261, subd.
(a)(2)—count 3); and (d) kidnapping (§ 207, subd. (a)—count 4). During a discussion about jury instructions,
the trial court said, “Intoxication voluntary, obviously, can be a defense to
specific intent crimes. You’re probably
most likely going to get attempted rape as lesser included offenses to all the
charges . . . based on [the victim’s] testimony, okay? [¶]
And also I would assume that maybe you even want a battery based on his
testimony in terms of maybe the last count of the lesser included offense of
simple battery.†The trial court stated
that it would work on the jury instructions and then meet with the parties the
following day. When trial reconvened,
the discussion concerning jury instructions was held off-the-record.
The
jury was given the following the instruction:
“If all of you find the defendant is not guilty of a greater charged
crime, you may find him guilty of a lesser crime if you are convinced beyond a
reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a
greater and lesser crime for that same conduct.
[¶] Now I will explain to you
which charges are affected by this instruction:
[¶] Attempted forcible rape is a
lesser crime of forcible rape charged in Counts 2 and 3. [¶]
False imprisonment by violence or menace is a lesser crime of kidnapping
charged in Count 4. [¶] It is up to you to decide the order in which
you consider each crime and the relevant evidence, but I can accept a verdict
of guilty of a lesser crime only if you have found the defendant not guilty of
the corresponding greater crime.â€
The
trial court then instructed the jury on how to complete the verdict forms. After that, the trial court said, “Follow
these directions when you decide whether a defendant is guilty or not guilty of
battery, which is a lesser crime of the lesser crime of attempted forcible rape
as to Count 3. [¶] To prove that the defendant is guilty of
battery the People must prove that . . . .â€
In count 3, the jury found defendant guilty of misdemeanor battery. (§ 242.)
2. ANALYSIS
Defendant
contends his trial counsel was ineffective because he did not object to the
trial court instructing the jury that battery is a lesser included offense of
attempted forcible rape in count 3. We
disagree.
As
set forth ante, “‘In order to
establish a claim of ineffective assistance of counsel, defendant bears the
burden of demonstrating, first, that counsel’s performance was deficient
because it “fell below an objective standard of reasonableness [¶] . . . under
prevailing professional norms.â€
[Citations.] Unless a defendant
establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.†[Citation.]
If the record “sheds no light on why counsel acted or failed to act in
the manner challenged,†an appellate claim of ineffective assistance of counsel
must be rejected “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation.†[Citations.]
If a defendant meets the burden of establishing that counsel’s
performance was deficient, he or she also must show that counsel’s deficiencies
resulted in prejudice, that is, a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.†[Citation.]’ [Citation.]â€
(People v. Lopez (2008) 42
Cal.4th 960, 966.)
Battery
is not a lesser included offense of attempted rape, because a touching does not
need to occur in an attempted rape. (
39.) There is nothing in the record
indicating why trial counsel failed to object to the trial court incorrectly
instructing the jury that battery is a lesser included offense of attempted
forcible rape. For the sake of judicial
efficiency, we will assume there is no possible satisfactory explanation for
trial counsel’s failure to raise an objection, and therefore assume counsel’s
performance was deficient.
We
now turn to the issue of prejudice.
Battery is a lesser included offense of forcible rape. (People
v. Lema (1987) 188 Cal.App.3d 1541, 1545.)
The offense charged in count 3 was forcible rape. (§ 261, subd. (a)(2).) Accordingly, the trial court was incorrect
when it instructed the jury that battery was a lesser included offense of the
other lesser included offense in count 3—attempted forcible rape; however, the
trial court was correct in instructing the jury that battery is a lesser
included offense of the charged crime—forcible rape. In other words, the trial court’s error was
stating that battery is a lesser included offense of attempted forcible rape,
as opposed to forcible rape. Thus, it
was proper to instruct the jury on battery as a lesser included offense in
count 3, but the wording of the jury instruction should have been edited to
reflect battery is a lesser included offense of forcible rape, as opposed to
attempted forcible rape.
Since
battery is a lesser included offense of the charged crime, trial counsel’s
failure to object to the wording of the jury instruction did not cause
defendant to suffer prejudice. While the
wording of the jury instruction might have changed if counsel had objected, the
jury would have still been instructed on battery being a lesser included
offense in count 3. Therefore, the
result of the trial would not have been different. In sum, defendant did not suffer prejudice
due to his trial counsel’s failure to object to the battery instruction.
Defendant
acknowledges battery is a lesser included offense of forcible rape, but asserts
“the jury found [defendant] guilty of battery on count 3 as a lesser included
offense of attempted rape, not a
lesser included offense of rape.â€
Defendant asserts the jury may have believed the following: if battery is a lesser included offense of
attempted forcible rape, and touching is not required for attempted rape, then
touching is not required for battery.
Defendant’s
argument is flawed for two reasons.
First, the trial court instructed the jury that battery requires
touching. Specifically, the trial court
said, “To prove that the defendant is guilty of battery, the People must prove
that: [¶] 1. The
defendant willfully touched [the victim] in a harmful or offense manner. [¶] .
. . [¶]
. . . The slightest touching can be enough to commit a battery if it is
done in a rude or angry way. Making
contact with another person, including through her clothing, is enough. The touching does not have to cause pain or
injury of any kind.†Thus, the jury was
informed that touching is an important element of battery, which causes it to
be unlikely that the jury believed battery could take place without touching.
Further,
if the jury believed a battery could occur without touching, then the jurors
necessarily would have believed a battery takes place when nothing happens,
since the whole action involved in a misdemeanor battery is a harmful or
offensive touching. (
1481, 1492 [“misdemeanor battery requires only a ‘simple touching’ and ‘does
not necessarily entail violence’â€].)
Assuming the jurors are reasonably intelligent people, when reading the
instructions as a whole we conclude it is unlikely the jury believed a battery
could occur without a touching. (
130 [“‘“Jurors are presumed to be intelligent, capable of understanding
instructions and applying them to the facts of the case.â€â€™â€].)
Second,
under either theory of the case—prosecution or defense—an unwanted touching
occurred. For example, the prosecutor
presented a case reflecting (1) multiple unwanted sexual touchings by
defendant; (2) defendant pushing the victim to the ground; (3) defendant
pulling the victim’s hair; and (4) defendant placing the victim in a
chokehold. Meanwhile, defendant
testified that he pushed the victim into the passenger door and choked the
victim. Given that both parties
presented evidence of harmful or offensive touchings, we are not persuaded the
result of the proceeding would have been different if trial counsel had
objected to the form of the battery instruction.
C. UPPER TERM SENTENCE
1. PROCEDURAL
HISTORY
At
the beginning of the sentencing hearing, the trial court gave an indicated
sentence. The trial court believed the
sentence for the kidnapping conviction should be the principal term and the
upper term of eight years should be imposed.
The trial court explained the upper term was appropriate because (1) the
crimes against the victim “occurred over hoursâ€; (2) the crimes involved
violence and a threat of great bodily harm; (3) defendant took advantage of a
position of trust or confidence; and (4) the victim was particularly
vulnerable due to the locations where defendant took her.
As
factors in mitigation, the trial court cited defendant’s “very minor criminal
history.†The trial court was unsure
about the facts of defendant’s prior juvenile offense, but it commented that
the offense appeared to have occurred in 2008 or 2009 and involve a controlled
substance charge that was reduced to public intoxication.
Defendant’s
trial counsel argued the trial court should impose the lower term. Counsel cited (1) defendant’s “insignificant
criminal recordâ€; (2) defendant’s youth (age 19); (3) the fact that the
convictions in this case would constitute two strikes, thus making defendant
eligible for a life term if he were to commit another felony;
(4) defendant not being a danger to the community, given his
“insignificant†and non-violent criminal history; and (5) defendant would
qualify for probation if the convictions in this case were not strikes and were
not felonies. Further, defense counsel
asserted defendant did not take advantage of a position of trust in this case
because he had only met the victim one time prior to July 29 and the victim
voluntarily left the party with defendant.
The
trial court explained the victim volunteered to go with defendant to purchase
food, “but she certainly didn’t volunteer to be placed in the position that she
was placed in.†Further, the trial court
expressed concern about defendant’s alcohol and/or drug use. The trial court noted that this case involved
defendant drinking alcohol, and defendant’s juvenile offense also involved
intoxication. The trial court concluded,
“[H]e has an issue with the consumption of alcoholic beverages. It is not a good mix for the defendant. Once he does, obviously, ingest significant
amounts of alcoholic beverages, it either makes him commit violent acts, as he
did in this situation, or causes some issues for him in the community, and
obviously he has no desire in that sense to prevent that from happening in the
future because there is no indication that the defendant even admits that he
has any issues in terms of the consumption of alcoholic beverages. So I think in that context that obviously he
does pose a serious threat of danger to the community.â€
The
trial court selected the sentence for the kidnapping conviction as the
principal term. The trial court
explained its reasons for choosing the aggravated term: The victim “was placed in a position of
extreme vulnerability; that . . . the defendant, through use of driving a motor
vehicle, took her to areas in which she could not seek help; and the fact that
. . . the threat of great bodily injury or actual injury was imposed on [the
victim] at the time. And even though
they had just met, I think that, obviously, he did take advantage of a position
of trust or confidence because when she did volunteer to go with the defendant,
it was not to put her in the situation that she was placed into, and so I think
that he took advantage of her confidence or trust in him when he engaged in
these very serious and violent acts.â€
The trial court imposed the upper prison term of eight years for the
kidnapping conviction.
2. ANALYSIS
Defendant
contends the trial court erred by imposing the upper prison term for the
kidnapping conviction because the sentencing factors only support imposition of
the midterm. Defendant contends his
kidnapping offense was no worse than other kidnapping offenses because (1) the
victim did not suffer great bodily harm; (2) defendant did not take
advantage of a position of trust to commit the offense; (3) the victim was no
more vulnerable than any other kidnapped woman; and (4) the only applicable
aggravating factor—the crime occurring over a period of hours—is balanced by
the mitigating factors of (a) defendant’s minimal criminal history, (b)
defendant was mentally or physically impaired at the time of the kidnapping,
due to voluntary intoxication, and (c) defendant was gainfully employed at the
time of the offense. We disagree.
The
People assert defendant forfeited the arguments related to (1) great bodily
harm, and (2) the victim’s vulnerability, by failing to raise those specific
arguments in the trial court. (
1, 8 [specific objections must be raised at the time of sentencing or the claim
of error is forfeited].) While we agree
that all four of the specific arguments raised on appeal were not presented at
the trial court, we will address the entirety of defendant’s argument because
it is easily resolved.
Sentencing choices are reviewed for
an abuse of discretion. (
825, 847.) “A court abuses its
discretion ‘whenever the court exceeds the bounds of reason, all of the
circumstances being considered.’
[Citation.] We will not interfere
with the trial court’s exercise of discretion ‘when it has considered all facts
bearing on the offense and the defendant to be sentenced.’ [Citation.]â€
(People v. Downey (2000) 82
Cal.App.4th 899, 909-910.)
Circumstances in aggravation that
support the imposition of an upper term sentence include: (1) the crime involved a threat of great
bodily harm or other acts disclosing a high degree of cruelty, viciousness, or
callousness; (2) the victim was particularly vulnerable; (3) the defendant
took advantage of a position of trust or confidence to commit the offense; (4)
the defendant engaged in violent conduct that indicates a danger to society;
and (5) defendant’s prior sustained petitions in juvenile delinquency
proceedings are numerous or of increasing seriousness. (Cal. Rules of Court, rule 4.421(a)(1),
(a)(3), (a)(11), (b)(1) & (b)(2).)
“A single factor in aggravation will support imposition of an upper
term. [Citation.]†(People
v. Cruz (1995) 38 Cal.App.4th 427, 433.)
The
trial court found the kidnapping presented a great threat of bodily harm. (Cal. Rules of Court, rule 4.421(a)(1).) The trial court’s finding is supported by
(1) defendant placing the victim in a chokehold when she ran away from
him; and (2) defendant placing his hands over the victim’s mouth and nose
so that she could not breathe after she tried to run away from him. Given that defendant limited the victim’s air
supply on two occasions, the kidnapping presented a great threat of bodily
harm. Accordingly, the trial court’s finding
was within reason.
Second,
a victim of a sexual assault is considered particularly vulnerable when she is
isolated in a defendant’s residence. (
Cal.App.3d 593, 601.) In this case, the
victim was isolated in defendant’s vehicle, and he drove her to secluded area
surrounded by fields and railroad tracks.
Given the isolated place where defendant transported the victim, the
trial court could reasonably conclude the victim was particularly
vulnerable. (Cal. Rules of Court, rule
4.421(a)(3).)
Third,
the trial court could reasonably conclude the victim took advantage of a
position of trust because he used his position as a supposed friend to lure the
victim into his vehicle. (Cal. Rules of
Court, rule 4.421(a)(11).) Once the
victim voluntarily entered the vehicle, defendant kidnapped her. By using his position to lure the victim,
defendant made the offense decidedly worse because the victim was unsuspecting
of the trouble awaiting her, which permitted defendant to move the victim to an
unpopulated area. Accordingly, the trial
court could reasonably conclude defendant took advantage of a position of
trust.
Fourth,
the record reflects defendant had consumed some alcohol on the night of the
kidnapping, and he inflicted various injuries on the victim while kidnapping
her. Defendant’s probation report
reflects charges of (1) being under the influence of a controlled substance,
and (2) disorderly conduct, on June 14, 2008.
The disorderly conduct allegation was found true and defendant was
placed on probation for 36 months. On
January 26, 2009, a juvenile court found true the allegation that defendant
failed to obey a juvenile court order.
Given defendant’s apparent substance abuse issues and the violence
displayed in this case—the choking and smothering—the trial court could
reasonably conclude defendant engaged in violent behavior that indicates he is
a danger to society. (Cal. Rules of
Court, rule 4.421(b)(1).)
As
set forth ante, defendant was 19
years old at the time the kidnapping occurred in 2011. Defendant had two sustained petitions in
juvenile court. One allegation in the
juvenile court pertained to being under the influence of a controlled
substance; however, only the disorderly conduct allegation was found true. In 2009, when defendant disobeyed a juvenile
court order, he was required to spend 20 days in juvenile hall. In 2011, defendant kidnapped a woman from a
party and attempted to rape her.
Defendant’s offenses are growing increasingly violent and serious. (Cal. Rules of Court, rule 4.421(b)(2).) Even throughout the incident at issue in this
instant case, defendant became increasingly violent.
Initially,
defendant grabbed the victim’s arm and yelled at her. Then defendant pushed the victim down and
placed his hands on her face, preventing her from breathing. After the victim escaped a second time,
defendant placed her in a chokehold.
When the victim tried to escape from defendant’s moving car, he grabbed
her by her hair. Eventually, defendant drove
the victim to an isolated cul-de-sac where he attempted to rape her. Given the escalating nature of defendant’s
offenses, the trial court could reasonably conclude defendant’s offenses from
2008 to 2011 have increased in seriousness.
In
sum, there are a variety of factors in aggravation that are supported by the
record. The trial court’s determination
that these factors outweigh the mitigating factors is reasonable, given the
many aggravating issues. Accordingly, we
conclude the trial court did not abuse its discretion by sentencing defendant
to the upper term.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We
concur:
RAMIREZ
P.
J.
McKINSTER
J.
All subsequent statutory references will be to the Penal Code unless
indicated.
