THE PEOPLE v. DEONTAE JAVON ROYAL (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Deontae Javon Royal met A.M. in a laundromat on May 8, 2005.   A.M. went to a park with Royal, her friend James, and her boyfriend, where they smoked marijuana.   The group wanted more marijuana, so A.M. rode with Royal on her boyfriend's bicycle to buy some.   The two cut through the grounds of a middle school.   While on the grounds, Royal choked and sexually assaulted A.M. At the outset of the assault, he told A.M. he was going to rape and kill her.

A jury found Royal guilty of two counts of forcible rape and one count of criminal threats.¹  (Pen.Code, §§ 261, subd. (a)(2), 422.) ²  On September 29, 2009, the trial court imposed an aggregate sentence of 16 years, eight months (two consecutive eight-year aggravated terms on the forcible rapes plus a consecutive one-third the middle term, i.e. eight months, on the criminal threat).

On appeal, Royal contends the trial court erred in (1) sentencing him to consecutive sentences on the rape convictions under section 667.6, subdivision (d), and (2) sentencing him to a consecutive sentence on the criminal threat conviction in violation of section 654, as there is insufficient evidence to support the conclusion Royal had multiple criminal objectives.   The People concede the second point.   We find the trial court erred in imposing a consecutive term on the criminal threat conviction, but otherwise affirm the judgment.

DISCUSSION

I. Consecutive Sentences on the Rape Convictions

Royal argues the trial court erred in imposing fully consecutive terms under section 667.6, subdivision (d), for the two counts of forcible rape.   Specifically, Royal contends reversal of the consecutive terms is required because there was insufficient evidence the two offenses occurred on “separate occasions” as defined in section 667.6, subdivision (d), and the trial court failed to sufficiently articulate a factual basis for concluding each crime occurred on a separate occasion.

A. Trial Proceedings

The following evidence on this issue was produced at the trial.   While on the middle school's grounds, Royal stopped to go to the bathroom as A.M. waited for him to finish.   When he did, she turned around and he grabbed her by the throat, choking her so hard she could barely breathe.   With his hands around her throat, Royal forced her to the ground and onto her back.   Royal told her he was going to rape and kill her, and ordered her to take off her pants.   She shook her head “no.”   Royal again said he was going to kill her and kept choking her, repeating his command to take off her pants.   The choking was so painful that she nodded her head “yes.”

Royal removed A.M.'s pants and underwear, and pushed himself onto her.   She begged him to stop.   Royal forced her legs open, despite her efforts to resist, and inserted his penis into her vagina as she continued begging him to stop.   He had difficulty inserting his penis and kept shoving it in until he succeeded.   A.M. described the pain as “immensely strong.”   Royal covered her mouth and told her to be quiet and shut up.   When Royal said he was “going to bust two in,” she implored him to pull out before ejaculating, so he pulled out and masturbated until he ejaculated on his hand.

After Royal “reached a point” and took his penis out of her vagina, he “said he was going to do it again.”   A.M. told him no.   Royal asked her if he was going to have to force her to do it again like last time.   There was nothing she could say or do, although she later told police she replied, “[N]aw, you did it already.”   Then he “did it again,” by which A.M. meant “he had sex with me” by placing his penis in her vagina.   She again told him to pull out.   When asked how many seconds passed between the rapes, A.M. replied, “I guess a few seconds.”   Between the two rapes, their position and location did not change;  A.M. remained on her back the entire time.   After Royal stopped, she put her pants and underwear back on and grabbed the bicycle.   Royal apologized, said he could not control himself, and hugged her.   The two went their separate ways.

Defense counsel filed a sentencing memorandum requesting, inter alia, that the trial court find Royal “did not have reasonable opportunity to reflect” between the two rapes and therefore they constituted a “single occasion” as defined in section 667.6, subdivision (d).  At sentencing, the trial court stated it had read the probation officer's recommendation and “defense counsel's sentencing memorandum,” which the trial court acknowledged included an argument that it should only impose one term because the two rapes constituted a “single occasion.”   The prosecutor argued that since jurors found Royal guilty of both rapes, they necessarily found he had sufficient “opportunity to reflect” before committing a second and separate act of rape, and therefore the court was required to impose full separate consecutive terms under section 667.6, subdivision (d).  In response, defense counsel argued the two rapes should be considered “one single act” because the time between the two rapes was short and the parties did not move but instead maintained their positions.

With respect to defense counsel's argument that the two rapes constituted a single occasion, the trial court explained:  “While the jury found the defendant guilty of the three felony offenses, two counts of rape and one count of criminal threats, the court felt as a matter of law it was a court determination of whether those two acts constitute separate offenses for purposes of sentencing.   Notwithstanding the jury's decision that there were two separate findings of rape, I believe the law, and I believe in this particular case as outlined by counsel that they reserved to counsel the right to argue, that notwithstanding the finding of two acts there can certainly be an argument made that under the facts of this case this really constituted one offense.   And I have heard that argument by counsel today as well as having read the argument in counsel's sentencing memorandum.   However, in the court's discretion in looking at these two offenses, there were two separate and distinct acts.   They took place close in time in the same location, involved the same victim, but they were separate and distinct acts, separate violations of a person's body.   And even though they occurred against the same individual at or near the same location and a short proximity or short period of time, [the] court in its discretion finds these are two separate, distinct rapes and the court intends to sentence them as separate and distinct offenses.”

After the court explained why it was imposing an aggravated term, the court explained that “as to whether the court should impose consecutive sentences [,][¶] I've already described the court's reasoning for the court's discretion, and as a matter of law finding there were two separate distinct rapes, and the court intends to sentence as to the separate rapes ․”.

B. Analysis

As relevant here, section 667.6, subdivision (d), mandates fully consecutive sentences for the sex crimes of which Royal was convicted “if the crimes ․ involve the same victim on separate occasions.”   The statute describes how the court is to determine whether the crimes occurred on separate occasions:  “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.   Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”  (Italics added.)  (See also Cal. Rules of Court, rule 4.426(a)(2) [“If the crimes were committed against a single victim, the sentencing judge must determine whether the crimes were committed on separate occasions.   In determining whether there were separate occasions, the sentencing judge must consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.   A full, separate, and consecutive term must be imposed for each violent sex offense committed on a separate occasion under section 667.6(d).”].)

As stated above, the trial court expressly found that “there were two separate distinct rapes.”   This finding discharged the trial court's duty to determine whether the crimes were committed on “separate occasions” within the meaning of section 667.6, subdivision (d).  Given that this determination turns on whether the defendant resumed sexually assaultive behavior after having a reasonable opportunity to reflect, implicit in the trial court's finding that the rapes were separate and distinct is a finding that Royal had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior.

This finding is amply supported by the evidence.   Although the interval between the two rapes was only a matter of seconds, the record shows that during that time, Royal told A.M. he “was going to do it again,” and when A.M. said no, he asked whether he would have to force her like the last time.   He then raped her again.   Based on Royal's statements, the trial court reasonably could conclude that he “had a reasonable opportunity to reflect on his ․ actions and nevertheless resumed sexually assaultive behavior,” as required by section 667.6, subdivision (d).  Accordingly, the imposition of a “full, separate, and consecutive term” on both of those crimes was mandatory notwithstanding any other sentencing considerations.  (Cal. Rules of Court, rule 4.426(a)(2).)

Royal argues this evidence was insufficient to support the trial court's determination “given that the two acts of penetration occurred in consecutive fashion with virtually no break in between and no change of position.”   He urges us to hold that when a continuous rape involves multiple acts of penetration, consecutive sentences are not mandated.   The trial court's statutory duty, however, was not to measure time or to count the number of positions the parties were in during the assaults, but to determine whether Royal “had a reasonable opportunity to reflect on his ․ actions and nevertheless resumed sexually assaultive behavior.” (§ 667.6, subd. (d);  see also People v. Irvin (1996) 43 Cal.App.4th 1063, 1070-1071 (Irvin ) [section 667.6, subdivision (d) does not requires a change of location or an obvious break in the perpetrator's behavior;  instead, [w]hat the trial court must decide is whether ‘the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.’ ”].) Here, while Royal and A.M. did not change position and the two sex acts were identical, the evidence showed that Royal had a reasonable opportunity to reflect on his actions, as he told A.M. he was “going to do it again” and asked if he would have to force her like the last time, and nevertheless resumed his sexually assaultive behavior by raping A.M. again.

We are not at liberty to reverse the judgment unless no reasonable trier of fact could decide there was a reasonable opportunity for reflection.   (Irvin, supra, 43 Cal.App.4th at p. 1070.)   That is not the state of the record here.

Royal asserts the trial court applied the wrong standard because, in announcing its decision to sentence the two rapes consecutively, it stated the rapes were “two separate and distinct acts,” instead of stating either that the two rapes occurred on “separate occasions” or that Royal had a reasonable opportunity to reflect on his actions and nevertheless resumed sexually assaultive behavior.   There is nothing in the record to suggest, however, that the trial court was unaware of the finding it was required to make, which was fully set forth in defense counsel's sentencing memorandum that the trial court reviewed.   Moreover, the trial court twice expressly acknowledged defense counsel's argument “that the rapes in Counts 1 and 2 should constitute a single occasion” and, in announcing its finding that the rapes were separate acts, noted the two acts “occurred against the same individual at or near the same location and a short proximity or short period of time.”   These remarks show that the trial court was aware of, and applied, the proper standard.

Royal also asserts that even if the mandatory full consecutive provisions of section 667.6 are applicable, we must remand because the trial court provided an inadequate factual justification for so doing.   This court did state in Irvin, when remanding the case for the trial court to determine whether the 20 sex offense acts of which the defendant was convicted were “separate occasions” within the meaning of section 667.6, subdivision (d), that it “must clearly explain its reasoning based upon a dispassionate review of the facts.”   (Irvin, supra, 43 Cal.App.4th at pp. 1070-1071.)   The issue in Irvin, however, was not whether the trial court's statement at the original sentencing was inadequate - rather, defendant contended that, in fact, not all his convictions occurred on separate occasions.  (Id. at p. 1067.)   While the trial court in Irvin had articulated the basis for its findings, its explanation did not specifically address how the occasion of each crime was separate from the occasion of the others and therefore was insufficient to allow the appellate court to determine if the trial court's findings were correct.  (Id. at pp. 1069-1070.)   This is not the case here.

II. Section 654

Royal contends the trial court erred in failing to stay Royal's sentence on count 3, making criminal threats, pursuant to section 654, as it was part of the same course of conduct as counts 1 and 2, the forcible rapes.   The People properly concede this point and we accept the concession.

Section 654 prohibits multiple punishment for a single act or omission and also for a single, indivisible course of criminal conduct.   It is the defendant's intent and objective, not the temporal proximity of his or her offenses, which determine if the transaction is indivisible.   Offenses that are incidental to, or are the means of accomplishing one criminal objective, can only be punished once.  (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208;  also see People v. Hester (2000) 22 Cal.4th 290, 294.)   Here, the evidence shows Royal's objective was to rape A.M., and that he made the criminal threat to accomplish that end.   Consequently, the term imposed on count 3 must be stayed.

DISPOSITION

The sentence on count 3, making a criminal threat, is stayed.   In all other respects, the judgment is affirmed.   The superior court is directed to issue an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.   Royal has no right to be present at those proceedings.  (See People v. Price (1991) 1 Cal.4th 324, 407-408.)

Gomes, J.

WE CONCUR:

Cornell, Acting P.J.

Dawson, J.

FOOTNOTES

FN1. The jury acquitted Royal of a separate count of rape against a different victim on another date, and found not true a use of a dangerous weapon enhancement with that victim (Pen.Code, § 667.61, subd. (e)(4)) and a multiple victim enhancement (Pen.Code, § 667.61, subd. (e)(5)).   In a bifurcated proceeding, Royal admitted suffering a prior “strike” conviction;  at sentencing, the court declined to impose it because the conviction occurred on September 28, 2005, after the crimes in this case..  FN1. The jury acquitted Royal of a separate count of rape against a different victim on another date, and found not true a use of a dangerous weapon enhancement with that victim (Pen.Code, § 667.61, subd. (e)(4)) and a multiple victim enhancement (Pen.Code, § 667.61, subd. (e)(5)).   In a bifurcated proceeding, Royal admitted suffering a prior “strike” conviction;  at sentencing, the court declined to impose it because the conviction occurred on September 28, 2005, after the crimes in this case.

FN2. All further statutory references are to the Penal Code..  FN2. All further statutory references are to the Penal Code.