PEOPLE v. CRETSINGER (1984)

OPINION

William C. Cretsinger (Cretsinger) was convicted by jury of multiple offenses and sentenced to state prison.   He appeals, contending:  (1) the court erred in admitting evidence of other crimes;  (2) the court erred in admitting evidence he was not prosecuted for the other crimes;  (3) he was denied effective assistance of counsel;  (4) the evidence is insufficient to support the verdict for kidnapping;  (5) the court improperly imposed multiple enhancements for gun use;  and (6) punishment for the assault and kidnaping (part of the same course of conduct as the sex offenses) offends Penal Code section 654.¹

FACTS

The victims Barbara F., an adult, and two runaway minors, Cathy A., age 14, and Rhonda D., age 16, were hitchhiking to Florida.   Cretsinger picked them up at the Whitewater rest stop in California.   Cretsinger was driving a pickup truck loaded with furniture and had a passenger, Matthew Rhoades.   The victims told Cretsinger they were going to Florida and were told they could get a ride to Parker, Arizona.

Cretsinger took the victims to some possible campsites on the Colorado River.   They rejected the campsites because they were “swampy and murky” and not suitable.

Cretsinger unloaded the furniture.   He dropped the victims off at a coffee shop on the main highway in Parker, Arizona.   Cretsinger told the victims unless they got a ride all the way through not to take it because he might come back in an hour to see if they had a ride.   He took Matthew Rhoades home and returned half an hour later and offered them a ride to a truck stop in Phoenix, Arizona.   Barbara did not want to go with Cretsinger but Cathy did.   They finally agreed to go with Cretsinger and got into the truck.   It was then 11 p.m.

Instead of taking them to a truck stop on the way to Phoenix, Cretsinger drove back to California.   The victims saw a sign indicating they had crossed the San Bernardino county line.   Cathy asked why they were back in California.   Cretsinger turned the truck around and said he knew a shortcut through the desert.   He left the paved road and drove on a dirt road for about a half hour before stopping in the desert.   He stated he was out of gas and they would have to stay there all night.

Barbara refused to stay and asked Cretsinger the distance to the road.   He said he didn't know.   The victims went to get their backpacks to leave.   Barbara had her backpack on when Cretsinger came to the tailgate of the truck.   He pulled a gun from his pants and ordered the victims to strip.   Barbara started walking away.   One of the two remaining victims said, “Just don't hurt me.”

Cretsinger pointed the gun at Barbara and told her if she took another step, “You're dead.”   Barbara kept on walking.   Cretsinger fired a shot in the air and then pointed the gun at Cathy and said, “Well, what if I shoot her.”   Barbara ran into the darkness.   A short distance away she removed her backpack.   She thought about going back because she could hear the girls crying.   She knew Cretsinger had a gun and realized she could do nothing if she went back.   She saw some lights out on the desert and decided to run toward them to get help.   She went about 12 miles for help.

Cretsinger got mad when Barbara ran off.   He pointed the gun at Cathy and told the two girls to take their clothes off.   When the victims hesitated, he ripped Cathy's shirt.   He then grabbed Rhonda's shirt and pulled her up ripping her shirt.   He ordered them to undress.   The victims complied.   Cretsinger got a blanket, laid it in front of the truck and told the victims to lie down.   They complied.   He got his camera and ordered the victims to pose for him as he shined the flashlight on them.   Cretsinger had a gun in his hand and the victims did as they were told.   The victims were crying as he took pictures.   He ordered them to grab their ankles, face toward him and look like they were smiling and to pose in several other positions.

When Cretsinger finished taking the pictures, he took off all his clothes.   He orally copulated Cathy.   He had Cathy, and Rhonda, then Cathy orally copulate him.   He had sexual intercourse with Cathy.   He then changed positions and had intercourse with Cathy from behind “doggie style.”   Then had sexual intercourse twice with Rhonda from the front and from the rear “doggie style.”   He then had sexual intercourse with Cathy.   He had the gun in his hand during these acts.   The victims did as ordered because they didn't want to die.

After Cretsinger had completed the various sex acts, he told the victims to put on their clothes and he put on his.   He put his arm around Rhonda and said he was high and didn't mean to do it.   He did not appear to be drunk or under the influence of anything that night.

Cretsinger told the victims to pick up their clothes and start walking.   He drove off in the truck in the opposite direction.   Some six hours later, Cathy and Rhonda were found by Barbara and the law enforcement officers.   They were somewhat disheveled in appearance, very excited, upset, and crying almost constantly.   They would respond to questions about what happened by crying and were incoherent at times.   They eventually described the sex acts committed on them by Cretsinger.

Cretsinger was later arrested in Parker, Arizona.   His residence and a motor home parked behind the residence were searched.   A .38 caliber revolver, a camera, and a roll of exposed film were found concealed in the motor home.   There was one expended round and three live rounds in the revolver.   The developed film showed Cathy and Rhonda in the previously described nude poses.   When Cretsinger saw the camera, he turned pale, started to shake and tears came to his eyes.

Cathy and Rhonda testified at the preliminary hearing they were going by the names of Dodie Boc and Mandy Williams.   They testified they were 17 and 18 at the time these offenses occurred.   Rhonda testified the “doggie style” intercourse was anal in nature.   Cathy testified Cretsinger entered her from the rear in the “doggie style” intercourse.   This resulted in Cretsinger being charged with three counts of rape and two counts of sodomy.   Prior to trial the district attorney in going over the trial testimony with the two victims ascertained that the “doggie style” intercourse was actually sexual intercourse from the rear and not anal intercourse.   The original confusion arose from the incoherent explanation by the victims to the investigating officers regarding the sex crimes.   At trial both of the victims testified that they lied about their names and ages because they were runaways and frightened and that the sodomy charges resulted from confusion with the “doggie style” sexual intercourse.   The district attorney prior to trial amended the information, striking the two counts of sodomy.   Cretsinger benefited by being charged with two less sex crimes.

The Defense Case

Cretsinger testified he picked the girls up and learned they had no money.   He suggested they could earn some by posing nude.   Cathy and Rhonda said they would think about it.   He left them at a coffee shop and told them if they couldn't get a ride to Phoenix he would take them to a closer truck stop.

Cretsinger returned to the coffee shop and picked up the girls.   He intended to take them to Blythe, California.   After he got started toward Blythe, he realized he was short on gas and decided to go to Vidal Junction, California.

He pulled off on the powerline road so Barbara could go to the bathroom.   It was at this time Cathy and Rhonda agreed to pose in the nude.   He drove up the road to a more secluded spot.   He promised to pay Cathy and Rhonda $20 each for posing.   He did not have the cash and had no intention of paying them.

He parked and removed a blanket from the truck.   Barbara asked him what was going on.   He told her, she got mad and walked off.

Cathy and Rhonda took off their clothes and posed in the nude.   He told them he did not have any money to pay them.   They got mad and cried.   He took some more pictures and told them he would go ahead and pay them.

Cretsinger denied he either had or displayed a gun.   He denied having any sexual contact with Cathy or Rhonda.

Because they got mad when he wouldn't pay them, he got “scared of what might happen” and left them in the desert.   He gave no thought as to how they would get back.

Responding to the evidence of the prior sexual acts with Margaret F., Cretsinger denied he had ever seen her before she testified.

DISCUSSION

Cretsinger contends it was reversible error for the court to allow Margaret F. to testify over his objection to uncharged sex crimes.   He contends this was doubly egregious because Margaret F. was allowed to testify he was not prosecuted for these crimes.   We take a different view.

Margaret F. testified that when she was 15 years old, she ran away from home in the company of three 14-year-olds, two boys and a girl.   They had car trouble and met Cretsinger.   Cretsinger suggested they camp on the river.   He later invited all the young people to spend the night in his brother's trailer.   The second night the young people spent the night in the trailer.   The next morning Cretsinger raped Margaret F. by force.   He apologized and said it happened because he was drinking.   He did not appear drunk when the act occurred.

Margaret stayed a few more days at the trailer after being assured by Cretsinger he would not bother her again.

Margaret was preparing to leave a few days later.   She intended to hitchhike.   Cretsinger offered to take her to a truck stop.   Instead of taking Margaret to a truck stop, Cretsinger drove off the main road onto a dirt road.   When Margaret questioned Cretsinger about the route, she was told the road made a complete circle around back to the main road.   It was dark when they left the main road.

Cretsinger stopped the car on the dirt road and orally copulated Margaret against her will.   He shined a flashlight on her private parts.   He had sexual intercourse “doggie style” against her will.   He then had sexual intercourse face to face.   Margaret submitted to all these acts out of fear.

 Margaret then testified without objection she dropped the charges against Cretsinger because of (1) the delay in prosecution;  (2) illness of her father;  and (3) her apprehension of testifying before a jury about the facts of the case.   Assuming, without deciding, the admission of evidence of prior sex crimes was error, the error does not require reversal.²  “The evidence was obviously quite probative, but it does not appear reasonably probable that the jury would have reached a more favorable result without it.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)”  (People v. Tassell, supra, 36 Cal.3d 77, 89, 201 Cal.Rptr. 567, 679 P.2d 1.)

In spite of the discrepancies in Cathy's and Rhonda's testimony at the preliminary hearing and trial, this is not a case where credibility is evenly balanced.   Cretsinger's testimony was internally inconsistent, without corroboration, and inherently unbelievable.   His testimony was impeached both by testimonial and demonstrative evidence.   There was compelling corroboration of the victims' testimony.   Barbara F. left her backpack at the scene of the crime, heard the girls being ordered to strip, heard one of the girls say, “Don't hurt me,” heard the discharge of a revolver and ran 12 miles to obtain help.   These facts are consistent with a suspected sexual assault on Cathy and Rhonda.   Barbara's actions and testimony are inconsistent with a person being angry because Cretsinger was taking consensual nude pictures in the desert.   Cathy and Rhonda's version of the events are supported by torn blouses, by their being left in the desert, by the expended round in the revolver, and by the look of abject terror on their faces in the photographs taken by Cretsinger.   Further support is found in Cathy's and Rhonda's appearances when found by the investigators.   They were highly emotional, constantly crying and incoherent in relating to the facts of the sexual assaults.   The overwhelming evidence of Cretsinger's guilt and his unconvincing and implausible $20 explanation demonstrate it is not reasonably probable a more favorable result would have occurred had the jury not heard Margaret F.'s testimony.

 In view of our discussion above, we find no prejudice resulting from evidence Cretsinger was not prosecuted for these prior sex crimes.

 Cretsinger argues his trial counsel was compromised by reading Officer Jacobson's answers given in a deposition without his consent.   Not so.   Officer Jacobson's testimony was admissible.   This testimony was used both in the People's case and in the defendant's case.   In the People's case, the district attorney asked the questions and the defense attorney read the answers.   In the defense case, the defense attorney read the questions and the prosecutor read the answers.³  Defense counsel's election to read Officer Jacobson's testimony in the first instance indicates a clear choice of trial tactics and does not in anyway suggest defense counsel's incompetency amounting to a deprivation of a right to counsel acting as an advocate on Cretsinger's behalf.  (See People v. Pope (1979) 23 Cal.3d 412, 424–425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Defense counsel effectively neutralized Jacobson's testimony as the district attorney did not see fit to argue Jacobson's testimony to the jury.

 Cretsinger's speculation his counsel's reading from the transcript would somehow destroy his ability to argue credibility is betrayed by the record.   The record does not factually support this speculation.   The centerpiece of his counsel's final argument was credibility of the witnesses for the People.   The fact the jury didn't buy the credibility argument does not make counsel incompetent.

 There is no requirement the court secure a personal waiver from Cretsinger before permitting defense counsel to read from a prior transcript.   We decline to establish such a requirement as it would effectively remove the control of the proceedings from the hands of defense counsel.

Even if counsel's action was inconsistent with his duties as an advocate, the evidence in this case is exceedingly strong.   There was clearly no withdrawal of any defense or any reasonable probability that a different result would have been reached had anyone else other than defense counsel read the prior testimony.  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

Cretsinger makes a nonsensical argument that he did not violate Penal Code section 207, subdivision (d),⁴ because he was not afterwards found within California.

 One of the meanings of the word “found” given in the dictionaries is “to [have] discover[ed] ․ [or] perceive[d] by or as if by [any of] the senses.”  (Webster's New Internat. Dict. (3d ed. 1961) p. 851.)   Unless it was the intention of the statute to give the word that meaning, it would not be possible to prosecute Cretsinger at all if he left the state before being arrested, even though he took the victims of the kidnap through a dozen counties.   He could not be prosecuted anywhere because there would be no county in which he could be found.   He could not be extradited for the crime which the statute denounces because his liability to punishment would depend upon his being found in the State of California.  (See Howell v. Commonwealth (1948) 187 Va. 34, 46 S.E.2d 37, 41.)   There is no doubt the crime of kidnaping occurred when Cretsinger, by fraud and contrary to the laws of Arizona, transported into this state Barbara, Cathy and Rhonda.  (People v. Stanworth (1974) 11 Cal.3d 588, 603, 114 Cal.Rptr. 250, 522 P.2d 1058;  People v. Rhoden (1972) 6 Cal.3d 519, 526–527, 99 Cal.Rptr. 751, 492 P.2d 1143.)   When applying and enforcing section 207, “it is our duty to avoid ‘absurd consequence[s]’ and achieve a ‘sensible construction.’  [Citation.]  ‘[T]he statute is to be given effect in its commonsense meaning.’   [Citation.]”  (People v. Stanworth, supra, 11 Cal.3d 588, 601, 114 Cal.Rptr. 250, 522 P.2d 1058.)   Unfortunately the victims of the assault with a deadly weapon, oral copulation, and rape, Barbara, Cathy and Rhonda “found ” Cretsinger in the County of Riverside within the State of California.   Once the kidnaping occurred, he was discovered and seen by the victims in the State of California.   Any other construction given to the statute would lead to absurd results not contemplated by the Legislature.  (Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)

 Cretsinger's contention only one gun-use enhancement could be imposed for the multiple rapes and acts of oral copulation because there was only one occasion of gun use under In re Culbreth (1976) 17 Cal.3d 330, 334, 130 Cal.Rptr. 719, 551 P.2d 23, is without merit.   We agree with the Supreme Court and two other appellate courts who have rejected this contention.  (People v. Tassel, supra, 36 Cal.3d 90–91, 201 Cal.Rptr. 567, 679 P.2d 1;  People v. Le (1984) 154 Cal.App.3d 1, 12, 200 Cal.Rptr. 839;  People v. Bergman (1984) 154 Cal.App.3d 30, 34–37, 201 Cal.Rptr. 54.)

Cretsinger's alternate contention that Culbreth bars punishment for the gun use on count 8, assault on Cathy, is also fallacious.   The court may separately calculate and impose full consecutive sentences for violent sex crimes under Penal Code section 667.6 and then separately calculate and impose sentence for nonsex crimes under Penal Code section 1170.1, and add the totals together.   Each separate total is to include enhancements.   Under the separate sentencing scheme analysis, Culbreth does not bar the enhancement on count 8.  (See People v. Belmontes (1983) 34 Cal.3d 335, 343–343, 193 Cal.Rptr. 882, 667 P.2d 686.)

 Cretsinger contends Penal Code section 654 bars any punishment for the kidnaping and assault with a deadly weapon charges as to Cathy and Rhonda, counts 8, 9, 11, 12.  Penal Code section 654 permits only one punishment for offenses which are part of the same course of conduct.

The trial court incorrectly imposed concurrent sentences as to counts 11 and 12, kidnaping of Cathy and Rhonda.   Where a kidnaping, though complete before a rape was committed, is incidental to and the means of committing a rape, the kidnap cannot be separately punished.  (People v. Laster (1971) 18 Cal.App.3d 381, 394, 96 Cal.Rptr. 108.)   Kidnaping of Cathy and Rhonda was to facilitate and accomplish the sexual assaults.   Cretsinger's sentence should be modified to stay any punishment on counts 11 and 12.

 Assault with a deadly weapon as to Rhonda is also barred by section 654.   Cretsinger pointed the gun at Rhonda and ordered her to strip.   This was for the purpose of facilitating the sexual assaults on Rhonda.

 The consecutive sentence imposed as to count 8, assault with a deadly weapon involving Cathy is not barred by section 654.   The facts are quite different leading to this assault.   When Barbara F. was attempting to leave after Cretsinger stopped in the desert, Cretsinger pointed the gun at Cathy's head and said, “What if I kill her?”   The assault with a deadly weapon was for the purposes of keeping Barbara in the desert in order to rape her as well.   This criminal objective is separate and apart from the sexual assaults on Cathy and the consecutive sentence as to that count was properly imposed.

DISPOSITION

The judgment is ordered modified as follows:

The consecutive sentence imposed as to count 9 is ordered stayed, the concurrent sentences for counts 11 and 12 are ordered stayed, these stays to become final upon completion of the sentence as to the other counts.   The trial court is ordered to modify its sentencing abstract accordingly and notify the appropriate parties.

Judgment as modified is affirmed.

FOOTNOTES

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

2.   The defendant's fraudulent intent necessary to the crimes of kidnap (Pen.Code, § 207, subd. (d)) was in issue.   Margaret's testimony was relevant and admissible to show Cretsinger intended to commit the sex crimes rather than deliver the victims to a truck stop enroute to Phoenix, Arizona.  (See People v. Tassell (1984) 36 Cal.3d 77, 87–88, 201 Cal.Rptr. 567, 679 P.2d 1;  People v. Thompson (1980) 27 Cal.3d 303, 314–321, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Pendleton (1979) 25 Cal.3d 371, 376–378, 158 Cal.Rptr. 343, 599 P.2d 649;  Cal. Const., art. I, § 28, subd. (d).)

3.   Justice is best promoted when counsel leaves witnessing to witnesses and lawyering to lawyers.

4.   Penal Code section 207, subdivision (d), provides:“Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where such act is committed, and brings, sends, or conveys such person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.”

RICKLES, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.