PEOPLE v. GALVAN

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Daniel O. GALVAN, Defendant and Appellant.

Cr. 44458.

Decided: August 28, 1984

Anson and Milberg and Jonathan Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert F. Katz and Susan D. Martynec, Deputy Attys. Gen., for plaintiff and respondent.

Introduction

At the time of trial, appellant was charged by information in count I with kidnaping in violation of Penal Code section 207.1  In counts II and III, appellant was charged with rape in violation of section 261, subdivision (2).   It was further alleged in those counts that appellant acted voluntarily and in concert with other persons by force and violence against the will of the victim, Elaine R., within the meaning of section 264.1 of the Penal Code.   In counts IV and V appellant was charged with oral copulation, in violation of section 288a, subdivision (d).   Both of these counts also alleged that appellant acted voluntarily and in concert with others.

The jury found appellant guilty as charged in counts I through V, and found the allegations that appellant acted voluntarily and in concert with others to be true.   Probation was denied.   As to count I, appellant was sentenced to state prison for the upper term of seven years.   The court further sentenced appellant to the upper term of nine years on counts II, III, IV and V, and ordered the sentence in those counts to run concurrently with each other and consecutively to the sentence imposed in count I, for a total of 16 years in state prison.   Credit was given for 412 days in custody, including conduct credits.

Statement of Facts

In the light most favorable to the People, the salient facts are as follows:

On January 31, 1981, Elaine R. was planning to celebrate her 18th birthday with her friends, Alexandra and Alexandra's boyfriend, Ray.   They had suggested that Elaine join them at the home of a friend and at approximately 8:30 p.m. that evening, they picked up Elaine at her home and drove to their friend's apartment.   That night Elaine was wearing her sister's pink satin dress, stockings, black high heeled shoes and both a short black jacket and a long beige coat, with a fur collar.

There were four people at the apartment other than Alexandra, Ray and Elaine.   One was named Angel and another was named Theresa.   Elaine drank one margarita while she was there.   The group was planning on going to a dance.   However, Alexandra and Ray got into an argument and left.   Elaine decided to accompany the other people to a dance spot called The Villa, located in Santa Ana on 17th Street.   Elaine travelled to the Club with Teresa and Angel.

Once inside the Villa, Elaine saw a couple of people with whom she was acquainted, including a woman named Diane.   She remained at the club until 1:30 a.m.   When she left the club, she noticed that Teresa and Angel had already left because their car was gone.   At that time she saw a silver Buick Regal and someone inside the Regal called out her name.   She recognized that person as someone with whom she had attended Lincoln High School and believed that his name was Anthony.   She noticed that in addition to Anthony, there were four other males seated in the Regal.   Therefore, she walked to the car and spoke with Anthony.   Elaine was somewhat interested in Anthony and it had been one or two months since she had seen him.   Additionally, she was happy to see someone she knew because she needed a ride home.

The men in the Regal asked Elaine if she or any of her friends wanted to go to a party in Garden Grove.   At first Elaine responded, “No.”   However, she then looked around and noticed that her friends had left.   Therefore, she entered the Regal and went to the Garden Grove party.   Appellant was inside the Regal that night and was seated in the front passenger seat.   Elaine had never seen appellant before that night.

At the Garden Grove party there were about 15 people present.   Elaine was handed a beer.   She took maybe two sips from the beer.   Elaine spoke with some of the women present and then went to use the bathroom.   When she exited the bathroom, police officers were present and were ordering everyone to leave the party.   Elaine noticed during the time that she was there that Anthony was talking with the girl who lived at the apartment and Elaine never saw him again that evening after she left the Garden Grove party.   After she left the apartment, Elaine walked over to the Buick Regal.   The driver was already there.

The same men who were in the car when Elaine joined them at the Villa, with the exception of Anthony, reentered the vehicle.   Elaine also entered and sat in the middle of the front seat.   Appellant was again seated next to Elaine in the front passenger seat of the vehicle.   Elaine saw other vehicles leaving the Garden Grove party and also noticed that an automobile in which some women were traveling followed the Regal.   They drove towards Santa Ana which was in the direction of Elaine's home.   Elaine was not worried at that time.   The driver stopped at a gas station on Fairview and 17th Streets where some of the men in the Regal got out and spoke with the women in the other car.   Elaine remained in the Regal.   Again, she was not worried because she was thinking that as long as they were in Santa Ana, they could take her home from there.   She estimated that she lived about 10 minutes away from the location of the gas station.   Elaine was not acquainted with the women in the other car, nor did she know where the men in the Regal resided.

When they left the gas station, the driver headed north on Fairview which was away from Elaine's home.   It was approximately 2 a.m., or shortly thereafter, and Elaine asked the driver where they were going.   Appellant stated they were going to their “hometown,” because there was a party there.   Elaine then asked the driver to take her home.   She told him that she lived in Santa Ana.   He looked at her and said that it was too far and continued driving towards the freeway.   Elaine remained quiet and when they reached the freeway she again asked where they were heading and was told that they were traveling to a party in Los Angeles.   Elaine stated that she could not go but appellant told her not to worry, that everything would be all right.   By that time Elaine was nervous and again stated that she wanted to go home and did not want to go to Los Angeles to any party.   The response was that everything would be all right and that they would take good care of her.   Elaine became very apprehensive, nervous and worried.   The driver kept looking at her.   Both the driver and appellant told her not to worry, that everything would be all right.   Elaine heard one of the men in the back seat address appellant as “Joker.”

The drive on the freeway took about 45 minutes.   Elaine told the men four times that she wanted to go home.   There was very little conversation among the men in the car and that also made her very nervous.   The last time Elaine saw the automobile with the women from the Garden Grove party was when both vehicles exited the freeway.   After leaving the freeway, they drove for about 10 minutes through an area where there were “projects” or apartments.

Eventually, the driver parked the car at a vacant lot and all the men exited and walked over to a house.   Elaine remained seated in the front seat of the vehicle.   She noticed that the men were talking to four or five other males for about three or four minutes.   The keys had been left in the Regal.   Elaine was afraid but was too scared to exit the vehicle.   She thought about locking the doors but did not know how to do so because they had electric locks.   She also noticed that there was not much gas in the car.

Two men entered the Regal.   Neither one had been in the car during the trip from Santa Ana.   One man had a blanket around him.   He sat next to Elaine and the other man sat in the driver's seat.   They asked her name.   When she inquired why the one man had a blanket, he said because it was cold outside.   The man with the blanket remained in the Regal but the other one exited.   Appellant then reentered the car.

Appellant told Elaine that he did not know how to phrase it but that “the guys wanted to take care of business.”   Elaine had a good idea what he meant and was terrified.   No one had made any comment of a sexual nature up until that time;  however, appellant then told her that she would have to get into the back seat with each of his friends.   Appellant ordered her to climb into the back seat.   Elaine did so because she was scared and also because the man seated in the driver's seat told her that if she did not he would beat her up.   Appellant followed Elaine into the back seat.   Appellant partially removed his pants and forced his penis into her mouth.   A couple of times, appellant instructed her to “suck his dick.”   The driver said that if she did not, she would be shot, and appellant threatened to beat her.   After several minutes, appellant removed his penis from her mouth, pulled off her underclothes, and forced her to lie down.   Appellant lay on top of Elaine and forced his penis into her vagina.   Elaine was crying but not loudly.

During this time five or six people watched from outside the vehicle.   The man situated in the front seat also watched and Elaine could hear him saying, “Take her outside.”   The car door then opened and other men pulled her out of the car.   Appellant carried her to a grassy area by some hedges.   Elaine was first placed on the gravel, but then the man with the blanket spread it on the ground, and Elaine was moved to the blanket.   There were approximately eight men standing around.   Elaine was terrified.   The men were using a lot of “foul” language, laughing and cheering.   Appellant again forced his penis into Elaine's mouth.   After several minutes, he climbed on top of her and forced his penis into her vagina.   Appellant told his friends to hold her legs open.   Two of the men held Elaine's legs apart.   Elaine was not sure whether appellant ejaculated but she remembered him saying, “I am coming.”

At one point while appellant was on top of her, the man who had threatened to shoot Elaine hit her on the head with a dark colored object that felt very hard.   She also heard someone else say, “Shoot her, shoot her.”   Elaine estimated that four or five other men, besides appellant, touched her in some way.   She believed that four or five times other men placed their penises into her mouth.   Four different times other men forced their penises into her vagina.   Another man stuck his finger into her vagina and someone stuck his finger into her rectum.

During the time appellant was engaged in intercourse with Elaine, the other men removed her jewelry which included a gold chain necklace, three rings and a watch.

Eventually, Elaine heard sirens and the men fled.   The police arrived and Elaine was taken to a hospital for an examination.   She tried to talk to the police but was hysterical and could barely talk or walk.   She did tell the police that one of the men who assaulted her was named “Joker.”   At the hospital Elaine's head hurt and she noticed some blood in her vagina.   Elaine told officers that she could identify the males involved in the rape.   Later her parents picked her up and took her home.

Discussion

Appellant concedes that the testimony of Elaine R. is sufficient to support the judgments of conviction for rape and oral copulation.

A. Sufficiency of the Evidence for Kidnapping

Appellant contends that there is insufficient evidence to support the kidnaping conviction because of the “total lack of any evidence of forcible asportation.”

 As appellant correctly states, our power to weigh the evidence is limited by due deference to the trier of fact, and the record must therefore be viewed in the light most favorable to the verdict.  (People v. Samuel (1981) 29 Cal.3d 489, 505, 174 Cal.Rptr. 684, 629 P.2d 485.)

 Though a movement of the victim be effected without force, a kidnaping conviction will nonetheless be upheld if the accused subsequently restrains the victim's liberty by force and compels the victim to accompany him further.   The force used against the victim need not be physical.   The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because of the fear of harm or injury from the accused, if such apprehension is not unreasonable under the circumstances.  (People v. Camden (1976) 16 Cal.3d 808, 814, 129 Cal.Rptr. 438, 548 P.2d 1110;  People v. Stephenson (1974) 10 Cal.3d 652, 660, 111 Cal.Rptr. 556, 517 P.2d 820, disapproved on other grounds in People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859;  People v. Rhoden (1972) 6 Cal.3d 519, 527, 99 Cal.Rptr. 751, 492 P.2d 1143;  People v. Trawick (1947) 78 Cal.App.2d 604, 606, 178 P.2d 45.)

Appellant contends that the facts of this case are similar to those in People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, and unlike those in People v. Camden, supra, 16 Cal.3d 808, 129 Cal.Rptr. 438, 548 P.2d 1110.   Appellant is mistaken.   In Green, the victim was induced into the defendant's car by fraud, and was under a fraudulent impression until the arrival at the site of her murder.   The ninety feet from the car over which she was transported without her consent after realizing her state of captivity was deemed insufficient by the court to support the kidnaping verdict.   In Camden, however, that defendant lured the victim into his car with an offer of a ride, then prevented her from leaving while he attempted to take her home for sexual purposes.   That conviction for kidnaping was upheld.   Similarly, here, after Elaine left the Garden Grove party with the men in the Buick Regal, the driver drove towards Santa Ana which was in the direction of her home.   They stopped at a gas station on Fairview and 17th.   At that time Elaine was not at all worried.   She remained in the vehicle and thought because they were in Santa Ana they could take her home from there.   She lived about 10 minutes away from the gas station.

When they left the gas station, the driver headed north on Fairview which was away from Elaine's home.   She then asked them where they were going, and appellant responded that they were returning to their “hometown” to attend a party.   Elaine asked the driver if he could take her home.   The driver looked at her and said that it was too far.   She explained to him that she lived in Santa Ana and that she wanted to go home.   The driver, however, continued driving toward the freeway.

When they reached the freeway, Elaine again asked where they were going and was told that they were going to Los Angeles.   She stated that she could not go with them, but appellant told her not to worry, that everything would be all right.   At that time Elaine wanted to exit the car, but did not do so because they had entered the freeway and she was not willing to jump out through the window.   She again indicated that she did not want to go to the party in Los Angeles but wanted to go home.   By that time, she was nervous and apprehensive.   She also noted that the driver continued to look at her.   During most of the trip, Elaine spoke with appellant who continued to tell her not to worry and that everything would be all right, that the driver would take good care of her.   After approximately 45 minutes, the Buick exited the freeway and traveled surface streets for about 10 minutes until they entered an area which appeared to be apartment projects.   During the trip Elaine had asked, at least four times, to be taken home.   The driver parked the car at what appeared to be a vacant lot and all of the men got out.   Though Elaine had remained seated in the front seat of the car, and noticed that the keys had been left in the ignition, she was too frightened at that time to exit the car.   She did not know how to close the locks on the doors because they were “electric.”   She also noticed that the car was low on gas.

 When, as here, the victim could not have extricated herself from a moving vehicle and was transported miles away from her home, the concomitant asportation is sufficient to constitute kidnaping.  (People v. La Salle (1980) 103 Cal.App.3d 139, 162 Cal.Rptr. 816.)

B. Sentencing Error

Appellant makes two assignments of error in the sentencing by the trial court.   These assignments of error involve an interplay between Penal Code sections 654, 1170.1 and 667.6.

1. Penal Code Section 264 2 and Section 667.6, Subdivision (c) 3

Appellant contends that the trial court erred in imposing consecutive sentences for the kidnaping and rape charges on the ground that the kidnap was part of one continuous transaction with the rape, and motivated by a single objective, which was to sexually assault Ms. R.

In support of his position, appellant cites People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515, among other cases.   In opposition thereto, the People contend that People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686, should control.

Appellant was sentenced to the upper term of seven years on count I, the kidnaping conviction, pursuant to section 1170.1.   As to counts II, III, IV and V, appellant was sentenced on each to the upper term of nine years under section 667.6, subdivision (c).   The sentences on counts II, III, IV and V were ordered to run concurrently with each other, but consecutively to the sentence in count I for a total of 16 years.

Section 1170.1 sets forth the general sentencing scheme for multiple convictions.   Subdivision (a) provides:

“Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies ․ and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5, 667.6, or 12022.1.   The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed ․  The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term ․ for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements․  The subordinate term for each consecutive offense which is a ‘violent felony’ as defined in subdivision (c) of Section 667.5, ․ shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7.”

Appellant's contention is that the trial court violated section 654 by adding a full consecutive term for the sex offenses under section 667.6 to the term imposed in count I under section 1170.1.   This position appears to be supported by People v. Masten, supra, 137 Cal.App.3d 579, 187 Cal.Rptr. 515.   The People point out, however, that Masten was decided prior to the California Supreme Court decision in People v. Belmontes, supra, 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.

We first address what does not apply in this case.   Appellant's reliance on People v. Fleming (1983) 140 Cal.App.3d 540, 189 Cal.Rptr. 619, is misplaced.   That case reversed the multiple sentencing for several sex offenses imposed pursuant to section 667.6, subdivision (d), which were for offenses not deemed “separate occasions” by the court.   That is not the case here, since the trial judge sentenced appellant concurrently on counts II through V.   To the same basic effect is People v. Collins (1983) 143 Cal.App.3d 742, 746, 192 Cal.Rptr. 101.)

The problem is two-fold.   First, is the interplay between sections 667.6 and 1170.1.  Section 1170.1 sets forth the general sentencing scheme for multiple convictions.   Under that section, subject to section 654, when any person is convicted of two or more felonies, and a consecutive term of imprisonment is imposed, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term (the greatest term of imprisonment imposed, including any enhancements therein specified).   The subordinate term for the applicable offenses must exclude all enhancements, and consists of one-third of the middle term under the prescribed period of imprisonment.  Section 667.6 is a separate sentencing choice for violent sex crimes therein prescribed.   The computations under sections 1170.1 and 667.6 are to be done separately, and the total of the section 667.6 computation to be added to the section 1170.1 total.  (People v. Belmontes, supra, 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.)

Appellant does not really argue with this point, but contends that the above formula may not be applied when the non-sex offense governed by section 1170.1 is kidnaping when the kidnaping is “incidental” to the sex offenses governed by section 667.6.   In this regard, appellant's position is that punishment for the kidnaping is forbidden by section 654.   He cites in support of that position People v. Masten, supra, 137 Cal.App.3d 579, 187 Cal.Rptr. 515.   The People's position is that section 654 is not a bar to punishment of kidnaping in violation of section 207 in the interacting scheme between sections 1170.1 and 667.6.   It would appear that Belmontes is controlling because of its higher authority.   But this particular issue was not specifically discussed in Belmontes.

In Belmontes, the defendant was convicted of kidnaping, rape, oral copulation and sodomy.   The victim was the girl friend of defendant's brother.   In order to induce the victim into accompanying him, defendant told her his brother was hurt, and that he would take her to him.   When the defendant arrived at her house, the victim got into his car.   The defendant drove out of town to a deserted area and stopped the car near a railroad trestle.   He picked up a crowbar, came around to the passenger side of the car where the victim was sitting and ordered her out.   He attempted to kiss her but she pushed him away and ran off.   He caught her by the hair, ordered her back to the car, and told her to take off her clothes.   He then orally copulated her and forced her to orally copulate him.   The defendant then drove to a more secluded spot where he again threatened the victim if she did not cooperate.   He raped and sodomized her and forced her to orally copulate him.   As he was driving the victim home, he demanded that she give him $1,000.   She went into her house and got $20 and gave it to the defendant who then left.   The trial court in Belmontes sentenced the defendant to state prison for the middle-base term of five years on the kidnaping conviction pursuant to section 1170.1.   Next, it imposed three fully consecutive six-year sentences on the rape, sodomy and oral copulation convictions.   Finally, it imposed a consecutive one-year enhancement for a prior felony conviction, for a total of 24 years.   The Supreme Court in Belmontes had before it two issues:  (1) whether the trial court has discretion to choose between the provisions in sections 1170.1 and 667.6 in sentencing the sex offenses (the court held that it did);  and (2) whether sentences imposed pursuant to section 667.6 could be imposed fully consecutive to the 1170.1 sentence (the ruling was that they could be).   Noteworthy in Belmontes is the fact that though the application of section 654 was not discussed, the judgment of conviction was affirmed.   The matter was remanded only for a limited trial on the issue of prior convictions and for a proper statement of sentencing choice by the trial court.

As a further guide, we glean what we can from the apparent legislative intent.   First of all, the application of the limitation under section 654 appears only in the sentencing requirements under section 1170.1.   “․ Certainly nothing in section 1170.1 presents an obstacle to its application to sex offenses listed in section 667.6, subdivision (c).   In fact, there is compelling proof that the Legislature visualizes continued utilization of section 1170.1 for such offenses.   As part of the same legislation which enacted section 667.6—chapter 944 of the Statutes of 1979—the Legislature created two new enhancements—sections 12022.3 and 12022.8—which apply almost exclusively to sex crimes listed in section 667.6;  yet, it added the two sections to the enhancements listed in subdivision (a) of section 1170.1.  (Stats.1979, ch. 944, §§ 12, 17, 18.)   Even more conclusive is the fact that the same legislation added subdivision (h)—now (i)—to section 1170.1, which, as noted, deals with the imposition of enhancements to violations of the very same sex crimes.   Neither of these additions to section 1170.1 would make any sense if section 667.6 were the exclusive means for punishing violations of those offenses․”  (People v. Belmontes, supra, 34 Cal.3d at p. 345, 193 Cal.Rptr. 882, 667 P.2d 686.)

The “plain meaning” of the statutory language, when considered with the above mentioned legislative history, appears clear.  Section 654 prohibits multiple punishment for “[a]n act or omission which is made punishable in different ways by different provisions of this code ․”  Section 667.6, subdivision (c), under which the trial judge in the instant case imposed sentences as to counts II through V, provides for the imposition of consecutive terms “whether or not the crimes were committed during a single transaction.”   It further provides:  “Such term shall not be included in any determination pursuant to Section 1170.1 ․”  (Emphasis added.)   This by clear inference excludes the application of section 654.

We recognize that there is a rational basis for this posturing of section 667.6.   The degree of asportation must always be considered.   In the case at bench, however, there is little problem with that point.   The abduction began with the departure of the car carrying the victim from the gas station in Santa Ana, which was 10 minutes away from her home.   Instead of going in that direction, the car carried the victim for 55 minutes across the county line into Los Angeles into an area miles from her home.   Her fear was increased to the point where she feared getting out of the car.   She was exposed to unnecessary and increased risk of harm during the time of transport—all of this in addition to the trauma of the sex crimes.   This additional trauma was a result of the intentional conduct of the defendant in transporting the victim over a considerable distance, and proscribed by a specific section of the Penal Code.   It is inferable by the statutory language, as well as the legislative history, that labeling this degree of asportation as “incidental” begs the point as much as if kidnaping were “incidental” to extortion for ransom.

 We, therefore, hold that section 654 does not apply to sentences imposed pursuant to section 667.6, subdivision (c).   Since the trial court hinted at some doubt as to proceeding alternatively by way of section 667.6, subdivision (d), and since we are remanding this case back to the trial court for reasons hereinafter stated, we add the caveat that our holding may not apply to subdivision (d) of section 667.6 in view of its application for consecutive sentencing only “if such crimes involve separate victims or involve the same victim on separate occasions.”

2. Trial Court's Statement of Sentencing Choice

Appellant points out that it cannot be determined from the record whether the trial judge would have utilized section 1170.1, rather than section 667.6, subdivision (c), “had he known he had the choice ․”  The People respond that the record evidences that the trial court was aware that it had the discretion to sentence under either section.   On this point, the record bears out the People's position.

 Unfortunately, that does not solve the problem.   The trial court is required to state the reasons for sentence choice on the record at the time of sentencing.  (§ 1170, subd. (c).)  A decision to sentence under section 667.6, subdivision (c), is a “sentence choice” for which reasons must be stated.  (See also rule 405(f), Cal.Rules of Court;  Belmontes, supra, 34 Cal.3d at page 347, 193 Cal.Rptr. 882, 667 P.2d 686.)   A decision to sentence under section 667.6, subdivision (c), is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively.

The problem specifically posed in this case is the following statement from the trial court:  “At this time then I am not going to state any reasons for consecutive sentencing other than these:  First, that I think that under the language of [section] 667.6 I am required to sentence consecutively as to the rape counts where I am going to sentence concurrently and the oral copulation counts which I am also sentencing concurrently.   In other words, the four sex counts are to be the subject of concurrent sentences, but, I think, I am mandated under [section] 667.6, subdivision (c), to sentence those consecutively to the kidnaping count.”   A decision to sentence under section 667.6, subdivision (c), is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively.  (Belmontes, supra, 34 Cal.3d at pp. 347–348, 193 Cal.Rptr. 882, 667 P.2d 686.)   The trial court went on to further express its concern as to what it found in cases which it had read regarding sentencing under section 667.6.4

Though the trial court stated that it was explaining the reason for the sentence, the statement did not amount to that.   The judge's perplexity is understandable, given the status of the authority at that time.   As noted in Belmontes, supra, 34 Cal.3d at page 347, 193 Cal.Rptr. 882, 667 P.2d 686:  “Although with respect to section 667.6 there has been general agreement that some statement of reasons is required, there has been a divergence of views in Court of Appeal decisions regarding the nature and specificity of the reasons that must be given.   Some of the confusion has been the result of disagreement about the relationship between sections 1170.1 and 667.6, subdivision (c).”

 The trial court did make some statements regarding aggravation, including the unsatisfactory performance of the defendant while on probation, the fact that the prior convictions as an adult were of an increasing seriousness, that the defendant took a leadership role, and that the victim was particularly vulnerable.   However these were mentioned in reference to fixing a high-base term rather than for consecutive sentencing.

 In an attempt to guide the trial court through newly chartered waters in resentencing appellant, we make the following observations:  With specific reference to the court's statement of “vulnerability,” we note that the term “particularly vulnerable,” as used in rule 421, California Rules of Court, has been defined as “ ‘[of] a special or unusual degree, to an extent greater than in other cases.’ ”  (People v. Price (1984) 151 Cal.App.3d 803, 814, 199 Cal.Rptr. 99;  People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502.)   It is proper to focus on the total milieu in which the commission of the crime occurred in assessing vulnerability pursuant to rule 421.  (People v. Price, supra, 151 Cal.App.3d at p. 814, 199 Cal.Rptr. 99;  People v. Ramos (1980) 106 Cal.App.3d 591, 607, 165 Cal.Rptr. 179.)   Lastly, we aim the point of the compass at the following language:

“This [requirement of a statement of reason] does not mean that the reasons justifying full term consecutive sentencing under section 667.6, subdivision (c) must necessarily be different than those used to justify the imposition of consecutive sentences under section 1170.1.   The criteria listed in rule 425—which, as noted, incorporate those of rules 421 and 423—apply to both decisions and cover all the degrees and nuances of depravity.   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).  [Fn. omitted.]

“The ideal method of proceeding would be for the trial court first to decide generally between concurrent and consecutive terms, following the criteria listed in rule 425.   Once the court has decided to sentence a defendant to consecutive terms and has stated its reasons therefor, it then must decide whether the consecutive terms should be under the principal/subordinate scheme of section 1170.1 or under the full and separate term scheme of section 667.6, subdivision (c).   If the latter is chosen, the reasons therefor should be stated for the record.”  (Belmontes, supra, 34 Cal.3d at p. 348, 193 Cal.Rptr. 882, 667 P.2d 686.)

Disposition

The matter is remanded to the trial court for resentencing;  in all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   Section 654 states:“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

3.   Section 667.6, subdivision (c), provides as follows:“In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction.   If such term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time such person would otherwise have been released from imprisonment.   Such term shall not be included in any determination pursuant to Section 1170.1.   Any other term imposed subsequent to such term shall not be merged therein but shall commence at the time such person would otherwise have been released from prison.”

4.   The trial court further stated:  “Also, I think that it is permissible under [section] 654, and I think 667.6 being subsequent in time to 654 controls, and the earlier cases, which indicated some doubt as to consecutive sentencing, are all pre-667.6.   Every case that I found that involves a crime that was committed prior to the enactment of 667.6 where the issue was raised, 654 precluded such sentencing.   In this particular case I think it would be exceedingly anomalous to permit me via discretion to sentence consecutively on the sex counts, even though they are all the same occasion, but preclude me from sentencing consecutively on the kidnaping when that is precisely what 667.6 tells me that I am required to do.   So, I think that is largely housekeeping, but I am explaining the reason for the sentence.”

BEVERLY, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

JOHNSON, Acting P.J., and THOMPSON, J., concur.

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