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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Eric Tomont HICKS, Defendant and Appellant.

No. H007402.

Decided: April 21, 1992

Howard J. Specter, San Francisco, for defendant and appellant (Under appointment by the Court of Appeal). Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., Enid A. Camps, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.


Defendant Eric Hicks was charged by information with seven counts of rape (Pen.Code, § 261, subd. (a)(2)) 1 , two counts of sodomy by force (§ 286, subd. (c)), two counts of penetration with a foreign object by force (§ 289, subd. (a)), and one count of second degree burglary (§ 459).   A jury found him guilty of all counts except for one count of rape, and he was sentenced to 83 years in state prison.   On appeal defendant contends the trial court erred by (1) failing to give a Mayberry 2 instruction sua sponte, (2) admitting his statement to police regarding consensual sex, (3) excluding proposed expert opinion testimony on the subject of colposcopic slides, (4) denying his motion for a continuance to obtain a more qualified expert on colposcopic slides, (5) admitting evidence of rape trauma syndrome and of a witness's opinion concerning the victim's credibility, (6) instructing the jury pursuant to CALJIC No. 2.62, (7) failing to state reasons for imposing sentence pursuant to section 667.6, subdivision (c), (8) making improper dual use of facts in imposing consecutive sentences and (9) violating section 654 in imposing sentence on the burglary count.



On June 26, 1989, Penny B. worked as a baker at the Bagelry in downtown Santa Cruz.   Arriving at work at 2:40 a.m. and using a key to unlock the door, Penny closed the door behind her but did not lock it because newspapermen routinely arrived soon thereafter to put papers in bins inside the store.   No one else was at the Bagelry when Penny started baking.   Shortly after Penny began her chores, defendant pounded on the door several times and then entered through the delivery entrance.   Penny had never seen him before.

Defendant approached Penny and said he had a meeting with “a German guy” who was going to teach him how to bake.   Penny said she knew nothing about such a meeting or about such a person.

Defendant asked if there was anyone else there, if Penny was the only one baking, and if she was sure someone would not be meeting him.   When Penny said she was the only one there and no one was coming, defendant came closer and asked if he could use the bathroom.   Penny said, “No,” adding that she needed defendant to leave.   Instead of leaving, defendant reiterated his request;  Penny again told him to leave, but he did not comply.

When Penny walked over to a sink, defendant came from behind and grabbed her arms, told her she was going to come with him, and pushed her toward the bathroom.   Penny twice said she would not go as she tried to push herself away while defendant repeated his demand.   Defendant put one arm around Penny's waist as she continued unsuccessfully to “twist[ ]” away from him.   Defendant said he had a knife and a gun as he insisted she come with him.   When Penny refused to comply, defendant told her not to yell or scream, choking her so hard she could not talk;  “a couple of times” while defendant was choking her, Penny “almost black[ed] out.”

While she resisted, defendant lifted Penny up and pushed her down the hallway.   When she put her feet against the bathroom door, defendant lifted her up off the floor, pushed her inside the “very cramped” men's restroom, and told her not to yell or scream, that “it was just [her] time.”

Defendant next told Penny to kneel over the toilet;  he put her head in the toilet water, wetting her hair and face.   When he pulled her up and asked if she “was going to do what he wanted [her] to do,” Penny agreed, fearing she “might die if [she] didn't.”

At defendant's insistence, Penny drank an inch of gin from a bottle that was sitting on the sink.   Defendant next stood behind Penny with a hand on her shoulder and told her to pull her pants down;  Penny felt “trapped” and complied.   Defendant pulled Penny's pants further down and told her to take them off and to get on the floor on her hands and knees.   Penny was “shaking” as she did so, and defendant told her not to be afraid.

Defendant penetrated Penny anally with his penis.   When Penny said, “no, ․ not that,” defendant told her to put his penis “where it belongs.”   Once defendant explained that he meant for Penny to put his penis in her vagina, she complied and he penetrated her vagina with his penis for about five minutes.   Commenting that he had “a big penis,” defendant said he “would go as fast or as slow as [she] needed,” that he did not want to hurt her.

When defendant's penis “fell out” of Penny, he got soap and water from the sink, put it on Penny's back and vagina, and “stuck his fingers inside of [her] vagina,” saying if she didn't want him to do this to tell him and he would stop.   Penny told defendant she wanted him to stop, but he did not reply;  instead, he continued to lean over her with his fingers inside her vagina.

Defendant next penetrated Penny anally with his penis despite Penny's renewed pleading, “No, not that.”   This penetration lasted a “couple of minutes” until defendant told Penny to put his penis where it belonged.   She put his penis in her vagina and he “started raping [her] vaginally.”   Defendant repeatedly asked if Penny had any boyfriends;  Penny replied that she did not.

When defendant's penis “fell out again,” he “got mad” and yelled at Penny to “arch [her] back,” complaining she wasn't trying hard enough.   Penny said she was trying as hard as she could.   Defendant told her to put his penis back into her vagina, which she did, and he “raped [her] vaginally some more.”   When defendant asked again if she had boyfriends, Penny told defendant she was a lesbian.

When defendant's penis fell out again, he put soap and water on it and had Penny put soap and water on herself and in her vagina.   He said that Penny “was a sick person and that God must have sent him there because [she] was a sick person.”

Defendant then asked Penny to put his penis back in her vagina, which she did, and he “started raping [her] vaginally again,” saying he wanted her to feel good and to have an orgasm.   To defendant's questions whether she could have an orgasm or wanted to have one, Penny responded, “No.”

When defendant's penis “fell out again,” he asked Penny to take her shirt off.   When she refused, he took off her shirt and his jacket, saying he wanted Penny “to feel good and feel some skin․”  He then masturbated her with his fingers and put his fingers into her vagina.   He told Penny to put his penis in her vagina, which she did, and asked her to kiss him, which she also did.   Defendant added that he didn't want to hurt her.   He talked about white women enjoying sex with black men and wanted to know what Penny thought about black men.   When Penny did not respond, defendant became angry, so Penny told him she “didn't know what to say.”

When defendant's penis fell out again, he sat on the toilet and asked Penny to sit on his lap and put his penis in her vagina, which she did.   He asked her to move up and down and asked if she wanted him to kiss her breasts.   Penny said, “no,” and defendant “got kind of mad and shook his head and he said, ‘You're just not into this, are you?’ ”   When Penny said, “ ‘No,’ ” defendant told her to use paper towels to clean her vagina, his penis, the toilet and the sink.   Penny did so, putting the towels in the toilet as directed;  she flushed the toilet when she was done cleaning everything.

Defendant and Penny dressed.   Defendant said he had done nothing wrong and to prove it he would tell Penny his name, which he said was Eric.   Defendant said he was going to help bake so that she would finish on time and, that if anyone came into the bakery, she “was supposed to just pretend that he was [her] boyfriend and act like nothing had happened.”   Still “afraid for [her] life,” Penny did her baking chores while defendant sat nearby, talking about how he had done nothing wrong, that he wanted to see Penny again, and that he had been watching her for some time and “felt something for [her].”   While defendant talked about setting up a time to see Penny again, two newspapermen entered the Bagelry through the door defendant had used.   Penny did not say anything to them because she “felt really afraid ․ [and] didn't know if they would believe [her]” and because the men walked by “really fast” and Penny feared defendant “would grab her because he was standing ․ really close to [her].”

While the newspapermen were walking by and leaving, defendant asked Penny to kiss him.   Realizing she had to “do something,” Penny kissed him and asked him to leave, saying she could not do her work with him there.   Defendant followed the newspapermen out the door;  after all three left, Penny closed the door and locked it.

Penny telephoned her boss, John Hamstra, and said she had been raped but had not yet called the police.   Ten minutes later, at 3:45 a.m., Hamstra arrived at the Bagelry.   As he approached the delivery door, defendant walked towards him and asked if “he could speak to the woman inside or take a message to her”;  Hamstra felt certain defendant did not know the name of the person he sought.   Hamstra agreed to relay a message and asked defendant his name;  defendant replied, “Eric.”   Believing defendant might be the person who had raped Penny, Hamstra asked him to wait at the door.

When Hamstra entered the Bagelry, he saw that Penny was “shaking,” “clearly distraught and [in] somewhat of ․ a shocked state.” 3  Hamstra explained that a man wished to see her.   Penny turned and saw defendant at the door.   After she indicated defendant was her assailant, Hamstra asked Penny to go with him over to defendant because Hamstra “wanted to be able to identify [appellant] and ․ to give the police an opportunity to find him.”   As they walked, Hamstra supported Penny, who was “[p]hysically unsteady.”  “[L]ike he was apologizing,” defendant told Hamstra he “didn't know ․ [Penny] had [only] been with women [and] ․ didn't know that it had been [her] first time.”   Defendant reached out to Penny, who “shrank back.”   After Hamstra asked defendant to remain at the door, he and Penny walked to the phone.   When asked if the police should be called, Penny said, “Yes.”   By the time Hamstra picked up the phone and looked back to the doorway, defendant was gone.

Officer Harn arrived moments later and quickly asked Penny what had happened.   He noticed that Penny was “very distraught, very withdrawn.”   Penny described the rape in the bathroom, defendant's clothing, and his appearance, including a scar across the bridge of his nose and a silver front tooth.   Harn radioed the description and asked for assistance as this was his first rape investigation.   Sergeant Reedy responded to the call.

Reedy asked Penny and Hamstra to come and view a suspect who had been detained at the beach;  Penny identified defendant as the man who raped her;  Hamstra identified him as the man he had seen earlier.   Officer Pruger, who had detained defendant, placed him under arrest;  Pruger testified defendant did not resist detention, that he had been agitated but coherent at the time.4

Back at the Bagelry, Reedy had Penny indicate areas where physical evidence might be found.   Reedy noticed that Penny had difficulty looking at her, spoke quietly and softly, and was quiet, detached and disassociated, calm, and “trance-like.”   Reedy testified that during her investigation of over 75 sexual assault cases, she had seen several sexual assault victims “act in the same manner.”   Reedy noted that, as an investigator, she looks for reasons a sexual assault victim might lie;  in this case she had no reason to suspect Penny was not telling the truth.   Reedy noted it was not unusual for a friend to call the police on a victim's behalf.

Penny “[v]ery briefly” mentioned to Reedy that she had been assaulted in the men's room and that defendant had made her “wipe everything down.”   Penny did not provide Reedy with details regarding the assault;  she talked to Harn about the crimes.   It was Harn's responsibility to ascertain from Penny what had occurred.   He used a “checklist,” asking if Penny had been raped vaginally and/or anally and whether there had been digital penetration.   He failed to ask how often each act occurred, and Penny did not offer any details on her own, such as the incident with her head in the toilet;  Harn testified he was embarrassed and did not sufficiently cover what had happened with Penny.

Later that day, Penny was seen at Dominican Hospital by sexual assault nurse examiner Sharon Shackelford, who noted that Penny was “very quiet [and] rather subdued.”   Shackelford testified that Penny's demeanor was something she had “seen before.”

Shackelford noticed wet stains on Penny's underpants and shorts, red marks on top of both shoulders, redness on both knees, one swollen knee, linear red scratches on the inner area of each thigh, a red mark between the shoulder blades, and red parallel lines on one side of Penny's neck.   She conducted an internal pelvic examination, during which she used a colposcope, which is “a binocular microscope on a tripod” on which is attached a 35 millimeter camera.   The examination revealed “several scattered red petechiae” or “small pinhead size hemorrhages” under the skin inside the vagina, redness and tenderness at another part of the vagina, dry blood stains on the inner thigh, bloody discharge from the cervical opening which possibly was menstrual blood, swelling around the hymen, a tear and a bluish discoloration on the hymen, and a red and swollen skin flap on the exterior of the anus.

Shackelford opined that her findings were inconsistent with consensual intercourse, noting that localized, as opposed to widespread, redness inside the vagina is not found in consensual sex and that the petechiae seen on the colposcopic slides “validated” her opinion.

Defendant testified on his own behalf.   He claimed Penny lied on the witness stand when she said she had been raped.   Defendant testified that he and Penny met at the end of May at the local mall, that she told him her first name during that chance encounter, that they spent time together on at least four other occasions with “two or three days in between each time,” and that Penny had told him she worked at the Bagelry and to meet her there on June 26th sometime after 2 a.m.

Defendant said that when he went to the Bagelry and found the door unlocked and partly open, he tapped on it to get Penny's attention;  he could not remember Penny telling him beforehand that the door would be unlocked.   According to defendant, after he entered the shop, he and Penny talked, held hands, and started kissing and hugging until Penny got up, retrieved a blanket she said she brought in from her car, and put it near the restrooms.   Defendant followed Penny to the place where she put the blanket.   They lay down and talked a while and then started to take their clothes off.   Defendant testified they “had consenting sexual intercourse,” that he “didn't force Penny” to do anything, and that she gave her full consent to all the acts that occurred.   He denied penetrating Penny anally or penetrating her vagina with his finger.

Defendant said they got dressed and returned to the front area;  at some point, they each used the restroom.   She worked while he sat on the table, and they were “talking and laughing about different things․”  According to defendant, Penny became more quiet when someone, perhaps newspaperman Ron Fish, entered the store.   When two other people came in, Penny seemed concerned because people were starting “to come through” and asked defendant to leave and come back later.   They kissed and hugged before he left.

Defendant testified he walked to the mall and that, when he returned and came through the door, Hamstra was inside the doorway, standing between him and Penny and acting like defendant “shouldn't be coming into the bakery to speak with [her].”   He testified, “Hamstra is telling a lie” about seeing him outside the Bagelry on the sidewalk.   Defendant claimed he called to Penny by name and that, when she came over and told him to leave, Hamstra walked away and, after telling Penny he would see her next time at the mall, defendant left.   Defendant also accused Hamstra of lying when he testified that defendant asked to get a message to a woman inside the Bagelry, that defendant said he knew it was Penny's first time or that it was hard for her, and that Penny needed his physical support when she came back and spoke with defendant at the door.

Defendant denied telling Officer Haebe that “[i]f a white girl gets caught doing stuff with a black man, they yell rape,” or that “she felt guilty getting some from a black man․”  Defendant said he told Haebe he thought “Penny [was] lying on [him] because she [was] worried about some [newspaper guys] that was coming in ․ because [t]hat's the only time when she seemed like she wanted [him] to leave.   All the other times she was more than welcome to [his] company.”

San Francisco Chronicle newspaper distributor Ron Fish testified he delivered newspapers to the Bagelry at approximately 2:45 to 3 a.m. on the morning in question, entering through an open door.   Fish said the door was left open “once in a while, but it wasn't a common occurrence,” and that it was often locked when a woman baker was on duty.   Fish testified he was surprised to find someone in the baking area with the baker, that the man seemed to be doing the talking, that he had a “normal tone of voice,” and that when Fish greeted them, he received no response.   Fish said Penny's demeanor was the same as the two or three times he had seen her before;  “[m]aybe once” she had replied when he greeted her.   Fish said it took him 15 or 20 seconds to walk from the door to the wall where he was out of sight of Penny and defendant;  en route he passed within five feet of Penny.


DISCUSSIONG. Sentencing **

Defendant contends the trial court erred (1) by failing to identify specific criteria which justified its use of section 667.6, subdivision (c) to impose full, separate and consecutive terms and by failing to indicate a recognition that use of that section was a separate sentencing choice, (2) by imposing consecutive terms based upon an improper dual use of facts and (3) by sentencing on the burglary count in violation of section 654.   We conclude that a remand for resentencing is required.

(a) Sentencing Choice Pursuant to Section 667.6, Subdivision (c).

 In sentencing defendant, the trial court noted that the attachments to the probation report, which include psychological evaluations and an overview of defendant's juvenile record, “would not only give a person chills up their spine but also [would] give a good indication of [defendant's] personality and behavior.”   The court continued, “The crimes committed in this case and the defendant's prior conviction for serious crime as an adult and adjudication [of] offenses as a juvenile indicate a person who's a serious danger to others if he's not in prison.  [¶] [I]n aggravation, the repeated assaults and continuing questions to the victim and threats of harm impose [a] high degree of cruelty and callousness on his part․  [¶] It was premeditated․  [¶] The defendant received the benefit of not being charged with prior prison enhancements.   He had three of them.   He was on parole when he committed the crime.   His performance on parole was unsatisfactory․  I believe that ․ the circumstances warrant consecutive sentencing for the crimes of violence here․  I find that all the cases are aggravated for the reasons that I've just mentioned.”   In sentencing defendant to the maximum sentence, the court concluded, “As far as I'm concerned, this is one of the most egregious cases.”

 A trial court may sentence a forcible sex offender convicted of more than one crime concurrently or consecutively.   After choosing to sentence consecutively, the trial court then must exercise its discretion whether to impose full and separate terms under section 667.6, subdivision (c) or to impose consecutive terms under the principal and subordinate scheme set forth in section 1170.1, subdivision (a).   A decision to sentence under section 667.6, subdivision (c) is an additional sentence choice requiring a statement of reasons separate from those justifying the decision to sentence consecutively.  (People v. Belmontes (1983) 34 Cal.3d 335, 345–347, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. Fernandez (1990) 226 Cal.App.3d 669, 684, 276 Cal.Rptr. 631.)

 The trial court must identify the criteria it used to justify the use of section 667.6, subdivision (c), and the record must establish that the court recognized that utilizing section 667.6, subdivision (c) is a separate and additional sentencing choice.  (People v. Belmontes, supra, 34 Cal.3d at p. 348, 193 Cal.Rptr. 882, 667 P.2d 686;  People v. McElrath (1985) 175 Cal.App.3d 178, 187, 220 Cal.Rptr. 698.)   In this case, the trial court failed to acknowledge on the record that it was aware it was making a separate sentencing choice by utilizing the harsher provisions of section 667.6, subdivision (c) rather than those set forth in section 1170.1, subdivision (a) and it failed to specify which criteria it was using to justify the imposition of full and separate terms pursuant to section 667.6, subdivision (c).   We remand for resentencing to give the trial court the opportunity to follow the two requirements set forth above and in Belmontes.

(b) Dual Use of Facts.

 Defendant contends the trial court based its decision to impose consecutive terms on the violence of the offenses in violation of the prohibition against dual use of facts when it stated “the circumstances warrant consecutive sentencing for the crimes of violence here.”   Defendant's claim takes the court's comment out of context.   However, defendant is correct that the trial court relied on numerous overlapping factors to justify both the aggravated and the consecutive sentences.   Although the same facts can be used as a basis for more than one consecutive sentence (People v. Bejarano (1981) 114 Cal.App.3d 693, 705, 173 Cal.Rptr. 71) or for more than one aggravated sentence on multiple counts, they may not be used for both.  (People v. Roberson (1978) 81 Cal.App.3d 890, 893, 146 Cal.Rptr. 777, disapproved on other grounds in People v. Crowson (1983) 33 Cal.3d 623, 632, fn. 10, 190 Cal.Rptr. 165, 660 P.2d 389.)   Given that we are remanding for resentencing because of the problems surrounding the imposition of full, separate, and consecutive terms under section 667.6, subdivision (c), we choose not to engage in a harmless error analysis on the issue whether the trial court erred in using the same factors to impose both upper terms and consecutive sentences.   Instead, on remand, the trial court shall set forth with specificity which factor or factors in aggravation it is relying upon to impose upper terms and which separate and non-overlapping factor or factors it is relying upon to impose consecutive sentences.  (See People v. Williams (1986) 180 Cal.App.3d 57, 62, 225 Cal.Rptr. 498;  People v. Price (1984) 151 Cal.App.3d 803, 815–816, 199 Cal.Rptr. 99.)

(c) Section 654.

 The burglary count was made the principal term and the upper term of three years was imposed.   Defendant was convicted of burglary with the intent to commit rape, sodomy, or penetration by a foreign object.   Defendant contends that because the burglary was incidental to the forcible sex offenses for which he has been punished, the sentence for the burglary count is barred by section 654.   We agree.

Section 654 states, in pertinent part:  “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․”

Section 667.6, subdivision (c) provides in pertinent part:  “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 289, or of committing sodomy ․ in violation of Section 286 ․ by force ․ whether or not the crimes were committed during a single transaction.”

“ ‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which ․ comprises an indivisible transaction punishable under more than one statute․  [I]f all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’  [Citation.]”  (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32.)  “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.  [Citation.]”  (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078.)

In People v. Siko (1988) 45 Cal.3d 820, 826, 248 Cal.Rptr. 110, 755 P.2d 294, the California Supreme Court commented that “[w]hatever the Legislature's intent may have been with respect to the ‘single’ or ‘indivisible transaction’ rule, it is clear to us that it did not intend by its enactment of [section 667.6,] subdivision (c) to repeal or amend the prohibition of double punishment for multiple violations of the Penal Code based on the ‘same act or omission.’ ”

Unlike Siko, the case before us does present the question of whether or not the enactment of section 667.6, subdivision (c) was intended by the Legislature to abrogate or modify the judicially engrafted “indivisible” or “single transaction” rule.   Here, the burglary was a means of accomplishing a series of forcible sexual offenses and was incident to the objective of sexually assaulting a single victim.   If applicable, section 654 would preclude multiple punishment.

 The People contend the language in section 667.6, subdivision (c) which authorizes separate punishment “whether or not the crimes were committed during a single transaction” demonstrates a legislative intent to repeal that portion of section 654 which prohibits multiple punishment whenever the defendant's actions form a “single” or “indivisible transaction.”   Defendant, on the other hand, argues that “section 667.6(c) should be understood as eliminating section 654 only for the offenses specifically listed within its provisions.”   We conclude that section 667.6, subdivision (c) does not create a general exception to section 654.

In People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8, 250 Cal.Rptr. 635, 758 P.2d 1165, the court held that imposition of consecutive sentences for kidnapping and rape violates the proscription against multiple punishment contained in section 654.   It rejected the argument that the Legislature intended to create an exception to section 654 because “[s]ection 667.6 was enacted as part of a legislative package which dealt with violent sexual offenses” and because the language in the original bill “which could be reasonably construed to provide for an exception to section 654, was subsequently excised from the final version of the bill.”  (Id., at p. 589, 250 Cal.Rptr. 635, 758 P.2d 1165.)

We find it significant to note that when the court in People v. Galvan (1986) 187 Cal.App.3d 1205, 1208, 232 Cal.Rptr. 410, declined to follow Masten, review was granted and the case was returned for reconsideration in light of footnote 2 in People v. Craft (1986) 41 Cal.3d 554, 559, 224 Cal.Rptr. 626, 715 P.2d 585, which states in relevant part:  “Although subdivision (c) allows separate punishment for crimes ‘committed during a single transaction,’ it does not affect section 654, which prohibits multiple punishment under different code provisions for a single ‘act or omission.’ ”

In People v. Anderson (1990) 221 Cal.App.3d 331, 343, 270 Cal.Rptr. 516, the Second District concluded, without citing Masten, that “the imposition of full-term consecutive sentences pursuant to section 667.6, subdivision (c) for the commission of offenses constituting separate acts, renders inapplicable section 654's proscription against multiple punishment for offenses committed during an indivisible course of conduct.”   In People v. Andrus (1990) 226 Cal.App.3d 73, 78–79, 276 Cal.Rptr. 30 [“section 654 does not prevent punishing appellant for both kidnapping and the sex offenses, even though the kidnapping was for the purpose of committing the sex offenses”], the Second District simply followed its earlier decision in Anderson.

We choose to follow Masten and not to follow Anderson because we find the statutory construction analysis in Anderson unpersuasive.

We do agree with those portions of Anderson in which the court (1) acknowledged that the language in section 667.6, subdivision (c) authorizing consecutive sentences “ ‘whether or not the crimes were committed during a single transaction’ ” is “unclear and ambiguous” (221 Cal.App.3d at p. 343, 270 Cal.Rptr. 516), (2) recognized that “a rational argument could be made ․ that the Legislature did not intend to render the provisions of section 654 inapplicable when a full-term consecutive sentence is imposed under subdivision (c)” (id. at p. 342, 270 Cal.Rptr. 516) and (3) noted the rule that, “in a criminal case, where ‘two reasonable interpretations of the same provision stand in relative equipoise,’ ‘ “ ‘ordinarily that construction which is more favorable to the offender will be adopted.’ ” '  [Citation.]”  (Id., at p. 343, 270 Cal.Rptr. 516.)

On the other hand, we disagree with Anderson 's conclusion that “[t]he two possible constructions of subdivision (c), however, are not equally reasonable.   The interpretation that subdivision (c) does not create an exception to the application of section 654 for offenses which form an indivisible transaction would leave entirely without meaning the statutory language ‘whether or not the crimes were committed during a single transaction.’ ”  (221 Cal.App.3d at p. 343, 270 Cal.Rptr. 516.)   We instead conclude it is equally reasonable to interpret the statutory language “whether or not the crimes were committed during a single transaction” to amend the prohibition of double punishment with respect to the “single” or “indivisible transaction” rule only with regard to the enumerated violations in section 667.6, subdivision (c).   This interpretation does not leave the pertinent statutory language without meaning but merely limits it to those sexual “crimes committed during a single transaction” which are assaultive in nature and specifically listed in the subsection.

Since we conclude the two interpretations of the provision are equally reasonable and that “resolution of the statute's ambiguities in a convincing manner is impracticable” (People v. Jones (1988) 46 Cal.3d 585, 599, 250 Cal.Rptr. 635, 758 P.2d 1165) under general rules of statutory construction, we are compelled to resolve this particular ambiguity in the statute in favor of the defendant.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186;  People v. Anderson (1987) 43 Cal.3d 1104, 1145–1146, 240 Cal.Rptr. 585, 742 P.2d 1306.)

However, our disagreement with the analysis in Anderson does not end here.   Although we each reviewed the available legislative history of section 667.6, subdivision (c) we reach different conclusions from our examinations of that history.

Before explaining our differences, we set forth the relevant history of the section as set forth in Anderson:  “As originally drafted in March 1979, subdivision (c) mandated consecutive full-term sentences for enumerated sex offenses ‘whether or not the crimes were committed with a single intent or objective or during a single transaction.’  [Citation.]  The above-quoted language prompted the Senate Committee on Judiciary, in analyzing the bill, to query whether the author intended to ‘mandate, in apparent disregard of Section 654, multiple punishments for sexual offenses committed during a single transaction.’  [Citation, italics in original.]  [¶] On July 5, 1979, Senate Bill No. 13 was amended by deleting from subdivision (c) the phrase ‘with a single intent or objective.’   The provision thus mandated full-term consecutive sentences for the enumerated offenses ‘whether or not the crimes were committed during a single transaction.’  [Citation.]  On August 30, 1979, the bill was amended to its final form, making discretionary the imposition of full-term consecutive sentences under subdivision (c) and adding subdivision (d), which mandates full-term consecutive sentences ‘if such crimes involve separate victims or involve the same victim on separate occasions.’ ”  (221 Cal.App.3d at pp. 341–342, 270 Cal.Rptr. 516.)

Faced with the above legislative history, the court in Anderson commented that “[t]he reason for amending the phrase ‘whether or not the crimes were committed with a single intent or objective during a single transaction’ is not apparent from the legislative materials we have examined,” and then concluded that “[a]lthough the Legislature's reason for omitting the reference to a single intent or objective remains unclear, the only reasonable explanation for the retention of the phrase ‘whether or not the crimes were committed during a single transaction’ is that the Legislature intended to create an exception (to section 654's prohibition against multiple punishment) applicable where separate acts are committed during an indivisible course of conduct.”  (221 Cal.App.3d at p. 342, 270 Cal.Rptr. 516.)

While the legislative materials may not provide an express reason for amending the phrase in question, we attempt to construe the meaning and effect of the amendment pursuant to our “constitutional duty and function of ascertaining legislative intent and construing statutes in accordance therewith.”   (People v. Jones, supra, 46 Cal.3d at p. 599, 250 Cal.Rptr. 635, 758 P.2d 1165.)   In so doing, we find it highly significant that, when faced with the analysis of Senate Bill No. 13 by the Senate Committee on the Judiciary, an analysis which focused squarely on the potential conflict between section 654's prohibition against multiple punishment and the bill's apparent disregard of that section, the Legislature promptly amended the bill by omitting the phrase “with a single intent or objective,” language noted above which is known to trigger section 654's prohibition against multiple punishment.   We believe that, while the Legislature clearly intended to abrogate section 654's application with regard to the enumerated sex offenses in section 667.6, its deletion of the “single intent or objective” language in response to the inquiry by the Senate Committee is an indication that the statute was not intended to abrogate the traditional section 654 “single intent or objective” analysis with regard to offenses not enumerated within the section.

In People v. Jones, supra, 46 Cal.3d 585, 250 Cal.Rptr. 635, 758 P.2d 1165, the California Supreme Court concluded that where a defendant stands convicted of multiple felonies, section 667.6, subdivision (c) vests the sentencing court with discretionary authority to impose a full, consecutive term for any enumerated sex offense conviction, even when the defendant stands convicted of only one such offense.   We also find it significant that, in positing a factual example to support its analysis, the Court was careful to avoid a section 654 problem.   The Court reasoned as follows:  “It is most unlikely that in enacting subdivision (c) the Legislature intended it not to apply to the offender who commits a single ESO [enumerated sex offense] coupled with a burglary or robbery, because such a scenario is all too common and usually involves particularly pernicious criminal conduct.   One frequently recurring scenario is as follows.   A burglar breaks into a residence, assuming it to be unoccupied and intending only to steal some items inside, when he comes upon a woman who is unarmed and alone.   The burglar recognizes an opportunity to take advantage of the circumstances and commits a ‘convenient,’ additional offense involving a separately formed criminal intent—forcible rape, sodomy, or oral copulation.   It would be improvident to conclude the Legislature disregarded this most common set of criminal circumstances when its clear objective was to vest the sentencing court with discretionary authority to consecutively sentence ‘each violation’ of the egregious sex offense enumerated in subdivision (c).”  (Id. at p. 598, 250 Cal.Rptr. 635, 758 P.2d 1165, italics added.)

The above factual scenario is quite different from our case, in which the defendant was specifically charged with and found guilty of burglary with the intent to commit rape, sodomy or penetration with a foreign object.   Here, the sexual offenses did not involve a separately formed criminal intent;  they fall instead within the “single intent or objective” language originally in section 667.6, subdivision (c) which was deleted after the inquiry into the scope of the bill's effect upon section 654.

Lastly, we note that after Masten was decided but prior to either the Jones or Anderson cases, the Legislature enacted section 667.8 which provides for a limited exception to section 654 where a person kidnaps a victim in violation of section 207 for the purpose of committing enumerated sexual offenses.  (See People v. Flores (1987) 193 Cal.App.3d 915, 921–922, 238 Cal.Rptr. 656.)   In our attempt to construe section 667.6 as it interrelates with section 654, we find it significant that the Legislature chose to enact section 667.8 to mandate an additional term of punishment in that situation rather than to amend section 667.6 to make clear that full, separate and consecutive terms could be imposed under the existing section.

For all of the above reasons, we follow Masten and conclude that “[s]ection 667.6 subdivision (c) by its terms provides for harsher sentences for violent sexual offenses.”   Burglary, like kidnapping, “is not included in the section's list of enumerated crimes.”   Thus, where burglary “is but a part of a continuous course of conduct incidental to the commission of sexual offenses, section 654 precludes the imposition of a consecutive term for the [burglary] conviction.”  (People v. Masten, supra, 137 Cal.App.3d at p. 589, 187 Cal.Rptr. 515.)



The case is remanded to the trial court for resentencing in accordance with the views expressed herein.   In all other respects, the judgment is affirmed.


1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337.

3.   Penny testified that after she had telephoned Hamstra and before he arrived, someone had been pounding on the door and yelling.

4.   Hamstra testified he had never seen defendant before that morning, that he was not from Germany although half of his heritage was German, and that no German bakers were employed at the Bagelry.

FOOTNOTE.   See footnote *, ante.

COTTLE, Acting Presiding Justice.

CAPACCIOLI and PREMO, JJ., concur.

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