THE PEOPLE v. DENNIS CURTIS HISLE (2010)

Opinion following recall of remittitur

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

An information charged defendant Dennis Curtis Hisle with multiple crimes arising out of his assaults upon two women:  K.R. and S.H. The crimes involving the two victims were committed approximately six months apart.

The jury convicted defendant of forcibly raping S.H. in December 2004 (§ 261, subd. (a)(2)) ¹ and of committing in May 2005 the following five crimes upon K.R. whom he held captive for two days:  (1) rape of an unconscious person (§ 261, subd. (a)(4));  (2) forcible oral copulation (§ 288a, subd. (c)(2));  (3) forcible rape (§ 261, subd. (a)(2));  (4) sexual penetration by a foreign object (§ 289, subd. (a)(1));  and (5) false imprisonment by violence (§ 236).   In regard to the forcible rape conviction of S.H., the jury found true the allegation that defendant had forcibly raped more than one victim. (§ 667.61, subd. (e)(5).)   In regard to the forcible rape conviction of K.R., the jury found true the allegations that defendant tied or bound her in the commission of the offense (§ 667.61, subd. (e)(6)) and that he had forcibly raped more than one victim. (§ 667.61, subd. (e)(5).)

In a bench trial, the court found that three prior convictions, alleged pursuant to the “Three Strikes” law, were true.   The convictions were for kidnapping (§ 207), forcible rape (§ 261, subd. (a)(2)) and attempted forcible oral copulation (§§ 664/288a, subd. (c)).

The trial court sentenced defendant to a term of 230 years to life.

Because defendant's appellate contentions raise different issues as to each of the two victims, we handle them separately.   First, we set forth the facts about defendant's forcible rape of S.H. Then we discuss his contention that that conviction must be reversed because he was denied his federal right to confront and cross-examine.   In that regard, defendant relies upon the fact that S.H.'s hearsay statements about the rape made to the nurse who conducted her sexual assault examination were admitted into evidence in the absence of that nurse's presence at trial.   We find that the contention has not been properly preserved for appellate review but conclude, in any event, that the admission of the testimonial hearsay statements was harmless beyond a reasonable doubt.

Next, we set forth the facts underlying defendant's conviction of the five crimes involving K.R. Then we discuss his two claims of sentencing error.   First, defendant urges that section 654 requires staying the sentence imposed for the false imprisonment conviction.   We reject the claim, finding that substantial evidence supports the trial court's implied finding that defendant harbored multiple criminal objectives, warranting separate sentences on each offense.   Second, defendant urges that in regard to his sentence for the forcible rape of K.R., the trial court erred in imposing two consecutive terms of 25 years to life for the section 667.61, subdivision (e) findings.   The Attorney General concedes this error.   Lastly, the Attorney General notes that the trial court failed to impose a security fee for each conviction as required by section 1465.8.   We direct preparation of an amended abstract of judgment to correct the two sentencing errors but, in all other respects, affirm the judgment.

I. FORCIBLE RAPE OF S.H.

A. STATEMENT OF FACTS

In regard to the charge of forcibly raping S.H. (count 6 of the information), the following evidence was presented.

S.H., then 58 years old, lived with her daughter N. Miller (Miller).   S.H. was acquainted with defendant from seeing him in the neighborhood.

On or about December 10, 2004, S.H. was walking back to Miller's residence when she saw defendant.   Defendant invited her to his home.   Once inside, defendant closed the door and placed a wooden board across it.   S.H. sat down at a table.   Defendant gave S.H. a sweet beverage which she drank.   At defendant's insistence, she briefly smoked from a glass pipe.   S.H. testified that her “heart started acting real funny, [she] started acting really funny.”

The next thing that S.H. recalled was that she was on the bed.   Defendant stated “Take your clothes off.”   S.H. was scared and protested as defendant proceeded to pull off her pants.   Defendant turned her over on the bed, pushed her head into the pillow, and raped her.

S.H. passed out.   When she regained consciousness, a black plastic bag was over her head.   S.H. gasped for air.   Fearful that she was going to die, she tried to remove the bag.   Defendant responded by choking her with his forearm and telling her “Stop fighting or I'll kill you” and “You belong to me.”   S.H. heard a sound she described as “spish, spish” and felt a burning sensation.   At one point, defendant told S.H. to “get up, get dressed and get the fuck out.”   S.H. had no specific memory of “how [she] got out of the place [or] how [she] got home” but she did remember that after she returned home, she told Miller (her daughter) that defendant had raped her.

Miller testified that S.H. did not return home until December 13.   According to Miller, her mother was “disoriented.   She didn't know where she was․  She was dirty, she had stuff on her face, sticky stuff around her lips.   She had bruises on her, on her neck, on her body.”  “She looked liked she had been drugged.”   Miller observed some “nasty” residue on S.H., “sticking around her lips.”

Over the next several days, S.H. behaved unusually.   She did not eat and did not get dressed.   She cried and told Miller she was scared.   On December 16, S.H. told Miller that defendant had raped her.   S.H. explained that she had been choked;  that defendant had placed a black bag over her face;  and that “spray was going in her mouth.”   The police were contacted.

Long Beach Police Officer Travis Muilenburg interviewed S.H. on December 16.   According to Officer Muilenburg, S.H. was “obviously upset” and had recent bruises on her neck.   The officer believed “it was obvious ․ that there had been something traumatic.”   S.H. told Officer Muilenburg that she was at defendant's apartment on December 10.   After defendant gave her a fruit drink, he removed her clothes and attacked her.   S.H. explained to Officer Muilenburg that “[defendant] was behind her, placed a black plastic bag over her head and began to choke her․  [¶] She was trying to fight him off, yelling at him, pleading with him to stop.   He continued and the more she fought, the more he choked her and tightened the bag around her face.  [¶] ․ [S]he was sprayed with an unknown liquid ․ about her face and mouth.”   She tried “to fight [him] off of her and he threatened to kill her and she continued to fight.”   He forcibly engaged in intercourse for “approximately 20 minutes.”

Officer Muilenburg transported S.H. to the hospital.   Photographs were taken of S.H.'s injuries (internal and external).   The photographs were introduced into evidence at trial without any defense objection.²  S.H. testified that she told the examining nurse that she had been raped.   S.H. gave the nurse details of the assault such as defendant's use of the plastic bag and his threats to kill her.

Nurse Angela Hernandez conducted a sexual assault examination of S.H. and completed the standard OCJP report.³  However, Nurse Hernandez did not testify at trial;  she had left her job three months earlier “for personal reasons.”   Consequently, her supervisor Nurse Malinda Wheeler testified.   Nurse Wheeler has been a nurse for 27 years.   Her specialty is sexual assault examinations.   She has personally conducted 500 sexual assault examinations and has supervised and reviewed “about 9,000 cases.”   In addition, Nurse Wheeler has been a speaker at meetings of law enforcement, nursing, and medical organizations.

Nurse Wheeler examined the photographs of S.H.'s injuries taken on December 16.   She testified that in her expert opinion, the injuries on S.H.'s arms and neck were consistent with “some type of trauma applied to her consistent with [a] struggle” and that the burns to her skin “were consistent with some type of chemical reaction.”   In addition, Nurse Wheeler testified that, in her opinion, the photographs of S.H.'s vaginal area showed injuries “from blunt force trauma ․ consistent with somebody who says that they were raped.”   On direct examination, Nurse Wheeler did not testify about Nurse Hernandez's opinions, recorded in the OCJP report, about S.H.'s injuries.  (But see fn. 4, infra.)

Over defendant's hearsay objection, Nurse Wheeler testified that the OCJP report reflected that S.H., in response to questions from Nurse Hernandez, told the nurse that defendant had grabbed her, sprayed an unknown substance into a black plastic bag that he placed over her head, choked her around the neck, threatened to kill her if she did not stop struggling, and forcibly raped her.

On January 15, 2005, Detective John McBride interviewed S.H. S.H. told Detective McBride the following.   She had gone to defendant's home because he asked her to help him with something.   Defendant placed a wooden board across his front door, gave her something to drink and had her smoke from a pipe.   S.H. told the detective that “things got real quiet and next thing that she knew [defendant] was standing over her naked [and] yelling at her to take her clothes off.”   He pulled her pants off and forcibly raped her.   During the rape, defendant choked her with his forearm, causing her to faint.   When S.H. regained consciousness, “there was a black bag over her head and she was fighting[,] trying to get” it off.   Defendant told her:  “Stop fighting, stop it or I'll kill you.”   S.H. heard an aerosol spray being discharged;  defendant then choked her again until she passed out.   S.H. had no memory of how or when she got dressed, left defendant's home or returned to her daughter's home.

B. ADMISSION OF HEARSAY STATEMENTS

Crawford v. Washington (2004) 541 U.S. 36 (Crawford ) held that the introduction of “testimonial” hearsay statements against a criminal defendant violates the federal right to confront and cross-examine a witness unless the hearsay declarant is unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant.  Melendez-Diaz v. Massachusetts (2009) 557 U.S. _ (Melendez-Diaz ) held that a sworn lab report prepared by a non-testifying declarant which concluded seized evidence was cocaine constituted testimonial hearsay within the meaning of Crawford.   Based upon these precedents, defendant contends that his “Sixth Amendment right to confrontation was violated by admission of [Nurse Wheeler's] testimony based on a sexual assault examination report prepared by [Nurse Hernandez,] a non-testifying declarant.”  (Capitalization omitted.)   Defendant urges that this error was prejudicial and requires reversal of his conviction of forcibly raping S.H. We find that any error was harmless beyond a reasonable doubt.

Initially, we note that defendant's contention improperly conflates two different portions of Nurse Wheeler's testimony.

In one portion of her testimony, Nurse Wheeler examined the photos of S.H.'s injuries (external and vaginal) and, based upon her expertise, gave her opinions that these injuries were consistent with a physical struggle, a chemical burning, and forcible rape.   Contrary to what defendant suggests, the prosecutor never elicited from Nurse Wheeler any testimony about Nurse Hernandez's opinions regarding the injuries ⁴ and the report itself was never entered into evidence.⁵  Consequently, this portion of Nurse Wheeler's testimony raises no issue of hearsay or the confrontation clause because Nurse Wheeler's testimony concerned her opinions based upon her review of the photographs.   This testimony therefore raised only relevancy considerations based upon proper authentication of the photographs (Evid.Code, §§ 250, 1401, subd. (a);  People v. Bowley (1963) 59 Cal.2d 855, 859-862) and qualification of Nurse Wheeler as an expert (Evid.Code, § 801).⁶  But no issues on appeal are raised in that regard and, in fact, could not be raised because trial counsel made no objections either to the use of or admission into evidence of the photographs or to Nurse Wheeler's qualifications as an expert.   In any event, defendant amply availed himself of his right to confront by cross-examining Nurse Wheeler at length about her opinions.  (See fns. 4 & 6, ante.)

In another portion of her testimony, Nurse Wheeler repeated the hearsay statements made by S.H. to Nurse Hernandez and recorded in the OCJP report.   This evidence can properly form the basis of defendant's contention of inadmissible testimonial hearsay evidence resulting in the denial of the right to confront and cross-examine.

The first issue is whether defendant has properly preserved his objection.   The Attorney General urges defendant has not because, in the trial court, defendant never raised the claim that Nurse Wheeler's testimony violated his federal right to confront and cross-examine.   The Attorney General is correct.

The parties first discussed Nurse Wheeler's testimony shortly before trial commenced in February 2008.   The prosecutor indicated that Nurse Wheeler would, in all likelihood, testify because Nurse Hernandez no longer worked at the hospital and had not yet been contacted.   The prosecutor explained that Nurse Wheeler would “be bringing in the records under the Evidence Code 1271 of business records, which she will be able to clearly do, that includes culpescopic photos and excluding the sexual assault report and she is an extremely qualified expert and will be utilizing that information in arriving at her opinions and conclusions related to the physical evidence that was seen in the exam.”  (Italics added.)   Although defense counsel indicated that he preferred to have Nurse Hernandez testify, he did not formally object to the prosecutor's proposal.   The parties did not address the matter again until Nurse Wheeler testified.

Shortly after Nurse Wheeler took the stand, the court noted her testimony “with respect to the S.A.R.T. exam is being proffered [pursuant to sections] 1271 and 801 of the Evidence Code.” Defense counsel raised no objection.   Later, the prosecutor directed Nurse Wheeler's attention to Nurse Hernandez's report and, without any objection from defense counsel, asked her to tell the jury S.H.'s answers to specific questions about her medical history that Nurse Hernandez had posed.   After Nurse Wheeler did so, defense counsel, outside the presence of the jury, asked if the report had been marked as an exhibit since Nurse Wheeler was simply reading from it.   It had not been.   Defense counsel replied:  “I would just as soon the report speaks for itself․  Because there are some things on that report I'm going to ask her about which has been testified to regarding the injuries, might as well take care of it right now.”  (See fn. 4, ante.)   The court directed the report be marked as an exhibit.  (See fn. 5, ante.)   The prosecutor returned to his questioning.   After Nurse Wheeler answered several questions about what S.H. had told Nurse Hernandez about the sexual assault, defense counsel made, for the first time, a hearsay objection.   The court overruled the objection and the questioning continued.

Defendant's hearsay objection was insufficient to preserve the confrontation clause issue(s) for appellate review.  (People v. Burgener (2003) 29 Cal.4th 833, 869;  People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.)   This is because a confrontation clause analysis based upon Crawford “is distinctly different than that of a generalized hearsay problem.”  (People v. Chaney (2007) 148 Cal.App.4th 772, 779.)

Defendant seeks to avoid this conclusion by arguing that his failure to object on confrontation clause grounds can be excused because any objection would have been futile.   He relies upon two facts.   The first is that at the time of his trial (March 2008), controlling California authority (People v. Geier (2007) 41 Cal.4th 555 (Geier )) held that forensic laboratory reports were not testimonial hearsay within the meaning of Crawford and thus admissible even though the analyst who prepared the report did not testify at trial.   The second is that Melendez-Diaz, which called into question Geier's holding,⁷ was not decided until June 2009, well after his trial had been completed.   This argument is not persuasive.   Defendant, using the factors set forth in Geier, supra, 41 Cal.4th at page 605, could have argued to the trial court that Nurse Wheeler's testimony about S.H.'s statements to Nurse Hernandez involved testimonial hearsay because Nurse Hernandez was acting as a law enforcement agent in questioning S.H.;   Nurse Hernandez was asking questions for possible use at a criminal trial;  and S.H. was describing facts related to criminal activity.   In other words, a confrontation clause objection would not necessarily have been futile because defendant could well have convinced the trial court that even under Geier, the testimony about S.H.'s statements embraced testimonial hearsay within the meaning of Crawford.   (See People v. Welch (1993) 5 Cal.4th 228, 237 [objection is considered futile if “wholly unsupported by substantive law then in existence,” italics added].)

Anticipating this analysis, defendant suggests that trial counsel's failure to object on confrontation grounds constituted ineffective assistance of counsel.  “To forestall [any such claim], we choose to address the issue on its merits even though it was waived by failure to specifically object.”   (People v. Chaney, supra, 148 Cal.App.4th at p. 780.)   Accordingly, the next issue is whether S.H.'s hearsay statements testified to by Nurse Wheeler were testimonial.   At the outset, we note that the vice condemned by Crawford -the deprivation of the right to confront and cross-examine because a hearsay declarant is unavailable at trial-is not completely present in this case.   While it is true that Nurse Hernandez was not available for cross-examination, the ultimate hearsay declarant-S.H.-was available for cross-examination.   She testified at trial at length.   In fact, on direct examination, the prosecutor elicited testimony from S.H. about the statements she made to Nurse Hernandez.   Defendant therefore had ample opportunity to cross-examine S.H. about what she had said to Nurse Hernandez and to explore whether Nurse Wheeler's testimony about those statements was accurate.   But putting aside that consideration, we do find, for the reasons explained at length in our opinion in People v. Vargas, supra, 178 Cal.App.4th at pages 657-662 [petn. for review denied], that Nurse Wheeler's testimony about S.H.'s statements describing the sexual assault included inadmissible testimonial hearsay.

However, we reject defendant's argument that the admission of this testimony requires reversal of his conviction for forcibly raping S.H. “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 18, 24.  [Citation.]  ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’  (Delaware v. Van Arsdall [ (1986) 475 U.S. 673] 681.)   The harmless inquiry asks:  ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’  (Neder v. United States (1999) 527 U.S. 1, 18.)”  (Geier, supra, 41 Cal.4th at p. 608.)   In making that inquiry, factors to consider include “the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.”  (Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)

Here, the error in admitting Nurse Wheeler's testimony about S.H.'s statements to Nurse Hernandez was harmless beyond a reasonable doubt.   The testimony merely duplicated S.H.'s detailed trial testimony about the assault, all of which was subject to cross-examination.   Defendant, nonetheless, argues “[t]here is no way its admission was harmless beyond a reasonable doubt” because “it was testimonial evidence that corroborated ․ [S.H.'s] rape complaint.”  “[T]he issue of whether [S.H.] was forcibly penetrated (i.e., whether the encounter was non-consensual) was resolved in large part by the history provided ․ in the forensic sexual assault examination report, which also served as a prior consistent account.”   Defendant's argument overlooks the fact that the hearsay evidence was also consistent with the in-court testimony of three witnesses (Miller, Officer Muilenburg and Detective McBride), each of whom explained that S.H. made essentially the same statements to them about the sexual assault.⁸  These three witnesses were also subject to defense cross-examination.   Thus, Nurse Wheeler's testimony about S.H.'s statements to Nurse Hernandez added little, if anything, to the existing body of overwhelming evidence of defendant's guilt (including but not limited to Miller's and Officer Muilenburg's testimony about S.H.'s physical injuries and emotional trauma and Nurse Wheeler's expert testimony about the source of the injuries depicted in the photographs of S.H.).⁹  Further, the prosecutor made only two passing references to the hearsay testimony in the rebuttal portion of his closing argument.   In light of all of these factors, we find that any error in admitting the hearsay statements was harmless beyond a reasonable doubt.

II. CRIMES COMMITTED AGAINST K.R.

A. STATEMENT OF FACTS

The jury convicted defendant of five crimes (counts 1 through 5 of the information) involving K.R. based upon the following facts.

K.R. testified that she met defendant for the first time at a bar in the early evening of May 7, 2005.   After a brief conversation, he asked her to give him a ride home.   She agreed.   Inside of defendant's apartment, defendant gave her a drink and convinced her to snort what she believed to be “crystal meth.”   Defendant sat down on the bed next to K.R., began to touch her body, and then forcefully pushed her back onto the bed.   K.R., desirous of leaving, tried to sit up but defendant again pushed her back.

Defendant held K.R. down with one hand while he opened a can and sprayed its contents into a plastic grocery bag.   Defendant placed the bag over K.R.'s mouth and nose, forcing her to inhale.   K.R. tasted a chemical, possibly butane.   Defendant continued to hold the bag over her head as he reached for cloth ties that he used to tie her wrists to the bed.   K.R. was scared but continued to struggle against defendant.   At one point, defendant placed both hands around K.R.'s neck and squeezed until she stopped struggling.   Defendant placed a towel over her head and taped it in place.

K.R. passed out.   When she awoke, defendant again sprayed the grocery bag and placed it over her mouth and nose, causing her to lose consciousness.   When K.R. regained consciousness, she was naked except for her shoes.   Each ankle was tied to the end of the bed.   Defendant's penis was inside of her vagina.   Defendant continued to have non-consensual intercourse with K.R. K.R. passed out again.   When she regained consciousness, defendant had placed a hard plastic object (possibly a vibrator) in her vagina.   Over the next hours, K.R. passed out and regained consciousness several times.   She struggled with defendant but each time he either placed the bag over her nose and mouth and forced her to inhale or “strangled” her.   During these events, K.R. saw several aerosol cans on the floor.

At one point, K.R. regained consciousness and told defendant she did not feel well.   He responded that he would buy some “Theraflu” for her and then left his home.   When defendant was gone, K.R. “tried the door, [but] couldn't get it open․  It looked like the kind of lock where you need a key from the inside and the outside.”   Defendant returned with the “Theraflu.”   K.R. drank it and fell asleep.   When K.R. awoke, defendant told her “that he would let [her] leave if [she] put [her] clothes on and looked like [she] was able to walk or drive.”   She got dressed and tried to walk across the room but defendant said that she “didn't look like [she] was able to function[,] so [he] made [her] stay.”   K.R. passed out again.

When K.R. awoke, defendant told her that she could leave if she “performed oral sex on him.”   She complied because she wanted “an out”;  the act was performed “against [her] free will.”   After defendant ejaculated in her mouth, he apologized for “roughing [her] up” and let her leave.   If K.R. could have left “at any time” earlier, she would have.   When K.R. left, it was the afternoon of May 9. Defendant had held her captive for two days.   During her ordeal, defendant untied and retied her several times.

K.R. entered her car and spoke to her former husband on her cell phone.   She told him “[she] had just been held for two days [and had been] raped.”   K.R. drove home.   The police (contacted by her former husband) came to her home.   She told them the details of her ordeal.   K.R. was taken to the hospital where a sexual assault examination was conducted.   Photographs of her multiple injuries were taken.   K.R. told the examining nurse details of the assault.   Later that day, the police interviewed K.R. at length.

Several days later, the police executed a search warrant of defendant's home.   They recovered evidence corroborating K.R.'s statements, such as an aerosol bottle, a can of butane, plastic bags, yellow tape, and an electrical cord.

B. SENTENCING

The trial court sentenced defendant to a term of 230 years to life.   The sentence was calculated in the following manner.   The trial court selected the forcible rape of K.R. (count 3) as the principal term and imposed:  (1) a sentence of 25 years to life for the rape;  (2) a consecutive 25-years-to-life term for the finding that defendant had forcibly raped more than one victim;  (3) a second consecutive 25-years-to-life term for the finding that defendant had tied or bound K.R.;   and (4) a consecutive five-year term for a prior conviction (§ 667, subd. (a)(1)).   In regard to each of the four other crimes committed against K.R. (counts 1, 2, 4 & 5), the court imposed a sentence of 25 years to life.   The court ruled that pursuant to rule 4.425 of the California Rules of Court,¹⁰ the sentences are to “run consecutive with each other and consecutive with count 3 ․ for the following reasons:  Number one, the crimes involved separate acts of violence and, number two, the crimes committed were committed at different times.”  (Italics added.)   In regard to the forcible rape of S.H. (count 6), the imposed a sentence of 25 years to life, with an additional 25-years-to-life consecutive term based upon the finding that defendant had forcibly raped more than one victim.

1. Section 654

First, defendant contends that his sentence for false imprisonment (count 5) “must be stayed pursuant to Penal Code section 654” because “the same conduct constituted false imprisonment as was the basis for the tying and binding allegation [in count 3.]” (Capitalization omitted in first quote.)   He claims that “the criminal objective at issue in count 5 was keeping [K.R.] prisoner;  the tying and binding allegations ․ imposed in count 3 [forcible rape] were motivated by the desire to keep [K.R.] prisoner, ․ ‘not letting’ her out of the apartment․  Thus, the single criminal objective at issue here was keeping [K.R.] prisoner-it had nothing to do with the (separately punished) rape.”   We are not persuaded.¹¹

“Section 654 applies when there is a course of conduct which violates more than one statute but constitutes an indivisible transaction.  [Citation.]  The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability.  [Citation.]  Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statue within the meaning of section 654 depends on the intent and objective of the [defendant].  [Citation.]”  (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)   If a “defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ ”  (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination.   [Citations.]  Its findings will not be reversed on appeal if there is any substantial evidence to support them.  [Citations.]  We review the trial court's determination in the light most favorable to the [People] and presume the existence of every fact the trial court could reasonably deduce from the evidence.  [Citation.]”  (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

False imprisonment may not be subject to separate punishment under section 654 when it is part of an indivisible transaction in the commission of another crime.  (See, e. g., People v. Martinez (1980) 109 Cal.App.3d 851, 858 [defendant convicted of assault with intent to commit rape and false imprisonment;  section 654 applied to the false imprisonment conviction because defendant assaulted the victim, dragged her under a bridge, attempted to rape her, and held her for a few minutes to attempt to convince her not to report the matter to the police].)   But section 654 does not prohibit a separate punishment for false imprisonment when that crime was independent of the commission of another crime.  (People v. Webber (1991) 228 Cal.App.3d 1146, 1172.)

In this case, defendant had multiple criminal objectives.   He intended to and did commit four discrete sexual assaults upon K.R. and he intended to and did keep her confined in his home.   That the rape (as well as the other sexual assaults) occurred during the same time defendant falsely imprisoned K.R. dos not mean that these acts constituted one continuous transaction requiring application of section 654.  “If [defendant] could be said to have a sole or primary intent and objective in regard to his course of conduct, it would appear to be to humiliate the victim.”  (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 818-819.)

Further, defendant's appellate claim of section 654 error too narrowly defines the false imprisonment as the time in which he bound and tied K.R. to the bed in order to rape her.   As explained by the prosecutor in closing argument, the false imprisonment was much broader:  it embraced the two-day period during which defendant kept K.R. confined to his home.¹²  During some of that time, she was bound;  at other times she was not.   And, at one point, defendant left the premises, leaving K.R. alone but, nonetheless, unable to flee because he had locked the door from the outside.   Or stated another way, the false imprisonment was not incidental to the forcible rape because it continued long after defendant had committed that crime.  (See People v. Surdi (1995) 35 Cal.App.4th 685, 689 [section 654 not applicable because the crimes “did not arise from a single volitional act [but] were separated by considerable periods of time during which reflection was possible”].)   In sum, substantial evidence supports the trial court's implicit finding that defendant's commission of the false imprisonment was in furtherance of an objective separate from the commission of the forcible rape.¹³  (See People v. Saffle, supra, 4 Cal.App.4th at pp. 438-440.)

2. Section 667.61 Sentencing

As indicated earlier, on count 3 (the forcible rape of K.R.) the trial court imposed two consecutive 25-years-to-life terms based upon the One Strike law, section 667.61.   The first term was based on the finding that defendant had forcibly raped more than one victim. (§ 667.61, subd. (a) and (e)(5).)   The other term was based on the finding that defendant had tied or bound K.R. in commission of the rape. (§ 667.61, subd. (a) and (e)(6).)   Defendant contends, and the Attorney General concedes, that it was error to impose two 25-years-to-life terms.   We agree.   When defendant committed the forcible rape of K.R., the governing statute provided that the 25-years-to-life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.”  (Former subd. (g) of § 667.61; ¹⁴  see also People v. Murphy (1998) 65 Cal.App.4th 35, 39-41 [under former subdivision (g), the defendant can be sentenced only to one life term per victim].)   We therefore direct preparation of an amended abstract of judgment to delete one of the two 25-years-to-life terms.

3. Imposition of Security Fees

Section 1465.8, subdivision (a)(1) provided that in order to “ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense.”  (Stats.2007, ch. 302, § 18, italics added.)   In this case, the trial court imposed only one $20 fee.   The Attorney General urges, without any objection from defendant, that imposing only one fee was error given that defendant was convicted of six crimes.   We agree.  (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.)   We direct preparation of an amended abstract of judgment to impose five additional $20 fees.

DISPOSITION

The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment:  (1) striking one of the two terms of 25 years to life imposed consecutive to the sentence in count 3 (the forcible rape of K.R.) pursuant to section 667.61, thereby reducing defendant's aggregate sentence to a term of 205 years to life;  and (2) reflecting the imposition of six (not one) $20 security fees.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Penal Code..  FN1. All undesignated statutory references are to the Penal Code.

FN2. On our own motion, we have augmented the record on appeal to include all of the exhibits introduced into evidence at trial.  (Cal. Rules of Court, rule 8.155(a)(1)(A).).  FN2. On our own motion, we have augmented the record on appeal to include all of the exhibits introduced into evidence at trial.  (Cal. Rules of Court, rule 8.155(a)(1)(A).)

FN3. The acronym “OCJP” stands for the Office of Criminal Justice Planning, the entity responsible for creating the examination form and the protocol for sexual assault examinations.  (People v. Vargas (2009) 178 Cal.App.4th 647, 654, fn. 4.).  FN3. The acronym “OCJP” stands for the Office of Criminal Justice Planning, the entity responsible for creating the examination form and the protocol for sexual assault examinations.  (People v. Vargas (2009) 178 Cal.App.4th 647, 654, fn. 4.)

FN4. To the extent that Nurse Wheeler testified about Nurse Hernandez's opinions, defendant elicited that testimony.   On cross-examination, defense counsel asked Nurse Wheeler what Nurse Hernandez had opined in her report about the victim's injuries.   He did so in an effort to undermine Nurse Wheeler's expert opinion testimony because Nurse Hernandez had not reached the same conclusions as Nurse Wheeler.   For instance, Nurse Hernandez (who defense counsel consistently emphasized had actually conducted the examination) had not opined that blunt force trauma or chemical burns had caused S.H.'s injuries whereas Nurse Wheeler had.   In closing argument, defense counsel relied upon the two nurses' different characterizations of S.H.'s injuries to argue reasonable doubt..  FN4. To the extent that Nurse Wheeler testified about Nurse Hernandez's opinions, defendant elicited that testimony.   On cross-examination, defense counsel asked Nurse Wheeler what Nurse Hernandez had opined in her report about the victim's injuries.   He did so in an effort to undermine Nurse Wheeler's expert opinion testimony because Nurse Hernandez had not reached the same conclusions as Nurse Wheeler.   For instance, Nurse Hernandez (who defense counsel consistently emphasized had actually conducted the examination) had not opined that blunt force trauma or chemical burns had caused S.H.'s injuries whereas Nurse Wheeler had.   In closing argument, defense counsel relied upon the two nurses' different characterizations of S.H.'s injuries to argue reasonable doubt.

FN5. The report was marked as Exhibit 147 for identification only.   The report was never introduced into evidence..  FN5. The report was marked as Exhibit 147 for identification only.   The report was never introduced into evidence.

FN6. Nurse Wheeler's testimony that she had reviewed Nurse Hernandez's report which included S.H.'s hearsay statements does not change this conclusion.   S.H.'s statements were relevant only to set the context for Nurse Wheeler's expert testimony:  were the injuries consistent with a claim of a physical struggle, use of chemicals, and forcible rape?   Defense counsel extensively cross-examined Nurse Wheeler about her analytical conclusions.  (See fn. 4, ante.)   Further, because S.H. had already testified at length about the details of the assault, S.H.'s testimony by itself was a sufficient basis upon which to ask Nurse Wheeler her expert opinion whether the injuries shown in the photographs were consistent with S.H.'s version of the operative events..  FN6. Nurse Wheeler's testimony that she had reviewed Nurse Hernandez's report which included S.H.'s hearsay statements does not change this conclusion.   S.H.'s statements were relevant only to set the context for Nurse Wheeler's expert testimony:  were the injuries consistent with a claim of a physical struggle, use of chemicals, and forcible rape?   Defense counsel extensively cross-examined Nurse Wheeler about her analytical conclusions.  (See fn. 4, ante.)   Further, because S.H. had already testified at length about the details of the assault, S.H.'s testimony by itself was a sufficient basis upon which to ask Nurse Wheeler her expert opinion whether the injuries shown in the photographs were consistent with S.H.'s version of the operative events.

FN7. The California Supreme Court has granted review in several cases to decide the application of Melendez-Diaz to various Confrontation Clause issues relating to the use of officially prepared reports..  FN7. The California Supreme Court has granted review in several cases to decide the application of Melendez-Diaz to various Confrontation Clause issues relating to the use of officially prepared reports.

FN8. Pursuant to CALJIC No. 2.13, the jury was instructed:  “Evidence that at some other time a witness made a statement or statements that is or are ․ consistent with ․ her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.”.  FN8. Pursuant to CALJIC No. 2.13, the jury was instructed:  “Evidence that at some other time a witness made a statement or statements that is or are ․ consistent with ․ her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.”

FN9. Defendant filed a post-verdict motion for new trial, arguing, in part, that the evidence was insufficient to sustain his conviction for the forcible rape of S.H. The trial court denied the motion, stating:  “I found ․ [S.H.] to be [a] very credible ․ witness[ ] [and that] in viewing the testimony in this case, I find the evidence ․ to be overwhelming against [defendant].”.  FN9. Defendant filed a post-verdict motion for new trial, arguing, in part, that the evidence was insufficient to sustain his conviction for the forcible rape of S.H. The trial court denied the motion, stating:  “I found ․ [S.H.] to be [a] very credible ․ witness[ ] [and that] in viewing the testimony in this case, I find the evidence ․ to be overwhelming against [defendant].”

FN10. California Rules of Court, rule 4.425 sets forth the criteria affecting the trial court's decision to impose consecutive rather than concurrent sentences..  FN10. California Rules of Court, rule 4.425 sets forth the criteria affecting the trial court's decision to impose consecutive rather than concurrent sentences.

FN11. Defendant's failure to object to his sentence on the basis of section 654 does not constitute a forfeiture of his right to raise the claim on appeal.  (People v. Hester (2000) 22 Cal.4th 290, 295;  People v. Lopez (2004) 119 Cal.App.4th 132, 138.).  FN11. Defendant's failure to object to his sentence on the basis of section 654 does not constitute a forfeiture of his right to raise the claim on appeal.  (People v. Hester (2000) 22 Cal.4th 290, 295;  People v. Lopez (2004) 119 Cal.App.4th 132, 138.)

FN12. For instance, the prosecutor explained:  “The last count is [section] 236, called false imprisonment.   A person intentionally and unlawfully restrained, confined or detained[;] another person compelling her to stay or to go somewhere, okay.   So just the fact of holding her, struggling, not letting her out in any way at any moment․  [¶] ․ [A]t the moment he starts to choke her, starts to struggle, starts to do anything, anything, anything like that, she wants to get out of there, any moment in time ․ that she doesn't want to be there and she's forced to stay there by his force, violence, intimidation, that's false imprisonment.”   At another point, the prosecutor argued rhetorically:  “If you think she wanted to be there for these two days, always wanted to be there, never wanted to go and wasn't able to by any fear, any threat, anything․  If you believe that she really wanted to go there and was able to go whenever she wants and he didn't put any sort of pressure, emotionally, physically or otherwise to stop her from going any time, then the crime [of false imprisonment] didn't occur.”.  FN12. For instance, the prosecutor explained:  “The last count is [section] 236, called false imprisonment.   A person intentionally and unlawfully restrained, confined or detained[;] another person compelling her to stay or to go somewhere, okay.   So just the fact of holding her, struggling, not letting her out in any way at any moment․  [¶] ․ [A]t the moment he starts to choke her, starts to struggle, starts to do anything, anything, anything like that, she wants to get out of there, any moment in time ․ that she doesn't want to be there and she's forced to stay there by his force, violence, intimidation, that's false imprisonment.”   At another point, the prosecutor argued rhetorically:  “If you think she wanted to be there for these two days, always wanted to be there, never wanted to go and wasn't able to by any fear, any threat, anything․  If you believe that she really wanted to go there and was able to go whenever she wants and he didn't put any sort of pressure, emotionally, physically or otherwise to stop her from going any time, then the crime [of false imprisonment] didn't occur.”

FN13. California Rules of Court, rule 4.424 provides that “[b]efore determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts.”   Here, the trial court did not make that formal determination.   However, its statement that it was imposing consecutive sentences for each of the five crimes committed on K.R. because each crime involved a separate act of violence and was committed at a different time constitutes an implicit determination that section 654 was inapplicable to defendant's sentencing.  (See People v. Blake (1998) 68 Cal.App.4th 509, 512.).  FN13. California Rules of Court, rule 4.424 provides that “[b]efore determining whether to impose either concurrent or consecutive sentences on all counts on which the defendant was convicted, the court must determine whether the proscription in section 654 against multiple punishments for the same act or omission requires a stay of imposition of sentence on some of the counts.”   Here, the trial court did not make that formal determination.   However, its statement that it was imposing consecutive sentences for each of the five crimes committed on K.R. because each crime involved a separate act of violence and was committed at a different time constitutes an implicit determination that section 654 was inapplicable to defendant's sentencing.  (See People v. Blake (1998) 68 Cal.App.4th 509, 512.)

FN14. Subdivision (g) “was deleted in 2006, both by the Legislature and under Proposition 83.”  (3 Witkin & Epstein, Cal.Criminal Law (2010 Supp.) Punishment, § 389, p. 312.).  FN14. Subdivision (g) “was deleted in 2006, both by the Legislature and under Proposition 83.”  (3 Witkin & Epstein, Cal.Criminal Law (2010 Supp.) Punishment, § 389, p. 312.)