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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Kevin Michael WARNER, Defendant and Appellant.

Cr. 13102.

Decided: July 12, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Barbara A. Smith, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven V. Adler and Louis R. Hanoian, Deputy Attys. Gen., for plaintiff and respondent.

Kevin Michael Warner appeals a judgment from a jury trial in which he was found guilty of rape (Pen.Code, § 261), forcible oral copulation (Pen.Code, § 228a, subd. (c)), kidnapping (Pen.Code, § 207), and assault with a deadly weapon (Pen.Code, § 245, subd. (a)).  The jury also found he was armed with a deadly weapon, a knife, in committing the sex crimes and used the deadly weapon in committing the kidnapping.   Warner admitted an alleged prior felony conviction.

On June 20, 1980, around 8:30 p. m., Kimberly V. was driving alone in a friend's car.   She stopped at a red light at the corner of Torrey Pines Road and La Jolla Village Drive to make a right turn.   Warner opened the unlocked passenger door and got in the car.   He firmly placed his left hand on the back of her neck, held a knife to her throat with his right hand and instructed her where to drive.

Warner told Kimberly to drive north on Interstate 5 where he said he was to conduct a cocaine deal.   He told her to take the Carmel Valley Road exit and park on a dark, secluded, dirt road which was 50 yards from the Torrey Pines State Beach entrance.   They talked for several minutes and smoked a few Camel cigarettes.   Then Warner tied Kimberly's hands behind her back with rope, placed a cloth gag in her mouth and walked her out to a dark area under a bridge.   He removed a blanket from a brown shoulder bag and placed it on the ground.   With the knife in easy reach, and against her will, Warner raped Kimberly and forced her to orally copulate him.

Afterward they got dressed and returned to the car.   While walking, Warner said his name was “Kevin,” he worked in a liquor store and was enrolled or about to enroll as a college student.   Apologizing for his conduct, he threw away a knife and his socks.

They got in the car and drove to a nearby shopping center where Warner got out.   Shortly afterward, Kimberly called the police and Officer Vanbara responded.

Vanbara testified Kimberly was very upset and had red marks on her wrists similar to burns.   He took her to the hospital and then to the scene of the crimes.   Other than a footprint which he sketched, Vanbara found no physical evidence.

The next day the case was assigned to Officer Yoshonis.   On June 23, he interviewed Kimberly and they went to the scene.   They found one sock but no knife.   On June 24, Yoshonis arrested Warner at the liquor store where he worked.   That night, the officer executed a search warrant on Warner's home and found the brown tote bag and a pair of Thermal underwear matching the assailant's clothes.   At the police station, the police impounded Warner's shoes because of the identical size and tread pattern of Officer Vanbara's sketch.   Police discovered that Warner smoked Camel cigarettes.   Warner told the police he was at home by about 8 p. m. on June 20.

At trial, Warner's testimony was similar to Kimberly's in many respects.   He stated he had been in Kimberly's car, they drove to the beach area off Carmel Valley Road and they had sexual and oral intercourse.   The main difference between his and Kimberly's testimony included he neither had nor used a knife and she consented to intercourse.

At trial after a motion and argument, the court admitted testimony of two prior similar incidents to show Warner's intent, plan, scheme and knowledge, and to corroborate Kimberly's testimony.   Warner contends the court erred in admitting this testimony.

 Evidence of prior similar acts is not admissible to show a defendant's disposition to commit the charged offenses (Evid.Code, § 1101, subd. (a)).  However, such evidence is admissible to prove facts at issue such as intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident (Evid.Code, § 1101, subd. (b)).

 The foundational requirements for testimony of prior similar offenses in a sex case are (1) the other offenses are not remote in time;  (2) they are similar to the charged offenses;  and (3) they were committed on a person similar to the prosecuting witness (People v. Haslouer (1978) 79 Cal.App.3d 818, 825, 145 Cal.Rptr. 234).   Because of the incredible similarity between the prior offenses and the charged offenses, Warner does not challenge the foundational requirements.   For this same reason, we do not recount the numerous factual similarities but will merely note this evidence is extremely probative for the prosecution's case.

Warner initially contends this testimony was not admitted for any proper purpose.   He admits he intended to have sexual relations with Kimberly;  therefore, he contends, these prior similar crimes were not relevant to the issue of intent.   We reject this argument.

 Although rape is a general intent crime, “the requisite mental state to commit rape requires more than just the intent to commit sexual intercourse, ․ it must be accomplished through the use of force or violence ․” (People v. Franklin (1976) 56 Cal.App.3d 18, 27, 128 Cal.Rptr. 94.) 1  The prosecution is entitled to, and in fact must, prove not only that defendant committed the intended sexual acts but also that he used force or threat of harm.   Force or fear are totally incompatible with consent.

A case on point is People v. Jackson (1980) 110 Cal.App.3d 560, 565 to 567, 167 Cal.Rptr. 915.   In Jackson at page 566, 167 Cal.Rptr. 915, the court stated:

“Defendant's trial theory, that the victim had consented to the sexual acts, was tantamount to a denial that he had intended to achieve oral copulation and sexual intercourse by force or intimidation.   Evidence of prior offenses was thus admissible to establish defendant's intent in the present offense by corroborating the victim's testimony that she had not consented to the sex acts, so long as those prior offenses were not too remote and were similar to the offense charged.  [Citation.]”

 We agree with the Jackson decision and hold the testimony of Warner's previous victims (Stephanie A. and Marlene M.) was admissible to prove intent and to corroborate Kimberly's testimony.  (See also People v. Thomas (1978) 20 Cal.3d 457, 464–468, 143 Cal.Rptr. 215, 573 P.2d 433;  People v. Kelley (1967) 66 Cal.2d 232, 239, 57 Cal.Rptr. 363, 424 P.2d 947;  People v. Pendleton (1979) 25 Cal.3d 371, 378, 158 Cal.Rptr. 343, 599 P.2d 649.)

 The prior similar crime testimony is also admissible to prove a characteristic plan, design, scheme or method.   These “intermediate” facts logically and reasonably tend to prove the “ultimate” fact at issue, i.e., criminal intent (see People v. Thompson (1980) 27 Cal.3d 303, 315, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Thomas, supra, 20 Cal.3d 457, 464–467, 143 Cal.Rptr. 215, 573 P.2d 433).   Summarizing, we conclude admission of this testimony does not offend Evidence Code section 1101.

Warner also contends the prior similar crime testimony should have been excluded under Evidence Code section 352 which requires the exclusion of relevant evidence if its prejudice outweighs its probative value.

Initially, we find the record amply shows the trial judge considered and balanced the prejudicial effect of this testimony with its probative value.   Prior to ruling, the court heard the offered evidence outside the jury's presence, listened to the lengthy argument of the experienced attorneys, and considered the relevant case law.   Preserving its considerations on the record, the court ruled evidence of two of the three prior similar crimes was admissible.   The court specifically considered whether the testimony of two of Warner's prior victims would be cumulative and concluded “I do feel that this evidence is so probative and would be of such assistance to the jury that they should be entitled to receive it.”

 Although evidence of prior similar crimes must be received with great caution (People v. Scott (1980) 113 Cal.App.3d 190, 198, 169 Cal.Rptr. 669), we hold the court exercised the requisite care and did not abuse its discretion.

Warner next contends the court improperly instructed the jury on the use of the prior similar act testimony.   The court told the jury this testimony could be used for the limited purposes of showing intent;  characteristic method, plan or scheme which would tend to show general criminal intent;  corroboration of the testimony of the prosecuting witness;  and whether the defendant had knowledge or the means to commit the crimes charged.

 Our previous discussion shows intent, a characteristic method, plan or scheme, and the credibility of the prosecuting witness were at issue.   When evidence of prior crimes is properly admitted on a substantive issue, a cautionary instruction should be given to identify the issues to which the evidence relates (People v. Rollo (1977) 20 Cal.3d 109, 123, fn. 6, 141 Cal.Rptr. 177, 569 P.2d 771;  see Pen.Code, § 1127).   Therefore, it was not only proper but necessary for the court to give this limiting instruction.

 The prosecution specifically asked for the instruction regarding Warner's knowledge or possession of the means useful or necessary to commit the charged crimes.   This instruction was very relevant because Warner used a knife in all of his similar assaults.   The obvious propriety of giving this aspect of the instruction is probably the reason defense counsel failed to object and thereby waived any claim of error (People v. Poon (1981) 125 Cal.App.3d 55, 75, 178 Cal.Rptr. 375).   We hold no error existed from the jury instructions limiting the use of prior similar acts.

 Warner next contends the court erred in sentencing under Penal Code section 654 by imposing separate sentences for the rape and oral copulation.

Warner claims he had only one objective in committing the two sex crimes—achieving an orgasm.   We see no real difference between this amorphous objective and the objective “to achieve sexual gratification” which the Supreme Court recently rejected (People v. Perez (1979) 23 Cal.3d 545, 552, 153 Cal.Rptr. 40, 591 P.2d 63;  see also People v. Clem (1980) 104 Cal.App.3d 337, 346, 163 Cal.Rptr. 553).   As the Supreme Court said in Perez, 23 Cal.3d at page 553, 153 Cal.Rptr. 40, 591 P.2d 63:

“A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.   We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act.”

We hold the court committed no error under Penal Code section 654.  (See also People v. Boyce (1982) 128 Cal.App.3d 850, 860, 180 Cal.Rptr. 573;  People v. Singleton (1980) 112 Cal.App.3d 418, 424, 169 Cal.Rptr. 333;  People v. Lopez (1979) 90 Cal.App.3d 711, 721, 153 Cal.Rptr. 541;  People v. Robinson (1977) 66 Cal.App.3d 624, 629, 136 Cal.Rptr. 127.)

Warner finally contends the court committed sentencing error by using the same facts to justify the upper terms as well as a full consecutive sentence under Penal Code section 667.6, subdivision (c).

 Before discussing consecutive sentencing, we first address the propriety of using the same facts for imposing the upper terms on both counts 1 and 2.   Although rule 441(c) of California Rules of Court prohibits the dual use of facts for selecting the upper term and enhancing the sentence of one count, nothing precludes the dual use of facts for selecting the upper terms on different crimes.   Simply because circumstances in aggravation are relevant to one count does not nullify the relevance of those same factors concerning other counts.  Rule 449 of California Rules of Court clearly supports this conclusion:  “When a sentence of imprisonment is imposed upon a defendant convicted of more than one crime, the judgment shall set forth the sentence to a base term and applicable enhancements for each of the crimes, computed independently.”  (Emphasis added.)

Next, we must decide whether a consecutive sentence under Penal Code section 667.6, subdivision (c), is an “enhancement” within the meaning of rule 441(c) of California Rules of Court.

 Warner relies on People v. Lawson (1980) 107 Cal.App.3d 748, at page 757, 165 Cal.Rptr. 764, where the court, concluding a consecutive sentence under Penal Code section 1170.1 was an enhancement, held “the statute [Pen.Code, § 1170, subd. (b) ] proscribes use of the same fact to both aggravate the base term and to impose consecutive sentences.”  Lawson is distinguishable from the present case, however, because the court did not consider the consecutive sentencing schemes of Penal Code section 667.6, subdivision (c) or (d).   As this court stated in People v. Ottombrino (1982) 127 Cal.App.3d 574, at page 586, 179 Cal.Rptr. 676.  “The language of subdivisions (c) and (d) of section 667.6 clearly directs the court to calculate consecutive terms for forcible sex offenses independently and separately from the general principal and subordinate scheme of section 1170.1, subdivision (a).”   Subdivisions (c) and (d) of section 667.6 are not enhancements, but rather, a distinct sentencing scheme to be used for forcible sex crimes (People v. Stought (1981) 115 Cal.App.3d 740, 742–743, 171 Cal.Rptr. 501).   Therefore, we hold the sentencing court committed no error in selecting the upper terms or in imposing full and consecutive sentences pursuant to Penal Code section 667.6, subdivision (c).

Judgment affirmed.


1.  Forced oral copulation and kidnapping are also general intent crimes (People v. Thornton (1974) 11 Cal.3d 738, 765, 114 Cal.Rptr. 467, 523 P.2d 267 overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 681, fn. 8, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Brocklehurst (1971) 14 Cal.App.3d 473, 476, 92 Cal.Rptr. 340).

COLOGNE, Associate Justice.

BROWN, P. J., and STANIFORTH, J., concur.

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