PEOPLE v. CRAFT (1984)

INTRODUCTION

Defendant appeals from the judgment sentencing him to state prison for a total unstayed term of 24 years after a jury convicted him of kidnaping (Pen.Code, § 207), robbery (Pen.Code, § 211), and three counts of forcible rape (Pen.Code, § 261, subd. (2)).¹

Defendant contends:  (1) the trial court improperly restricted defense counsel's argument to the jury;  (2) the prosecutor committed prejudicial misconduct in closing argument;  (3) the court abused its discretion in refusing to commit defendant to the California Youth Authority;  (4) the court erroneously refused requested instructions on theft as a lesser included offense of robbery;  and (5) the court committed sentencing errors, which require a remand for resentencing.   For reasons that follow, we remand for resentencing.   We reject all of defendant's other contentions and affirm the judgment.

FACTS

We view the evidence in a light most favorable to the People.  (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

In the early morning hours of July 25, 1981, Karen S., on her way to a wedding in San Jose, stopped her car to use the restroom at the Sno-White Drive-In, located on Mariposa Road in Stockton.   No one was around when Karen parked near the restroom doors behind the drive-in and entered the ladies' room.

As she stepped outside to return to her car, Karen was grabbed from behind.   Her assailant, later identified as defendant,² held her, placed his hand over her mouth, and told her not to make any noise.   Defendant began striking Karen as he pushed her toward her car.   When she refused to get in, he hit her on the head and pushed her to the ground.

Defendant pulled Karen's clothes off and threatened to kill her with a knife if she refused to lie still.   He then raped her.   Defendant told Karen she was going to die and threatened to blow her head off with a gun if she moved.

Defendant pushed Karen into the back seat of her car and sat in the driver's seat.   He covered her with a sheet and dress and threatened to kill her unless she remained covered.   He drove fast and recklessly and talked with Karen about money.   As he made a fast turn at one point, Karen was uncovered.   She saw defendant's profile and watched him empty the contents of her purse before covering herself.

Defendant stopped the car and climbed into the back seat.   He removed Karen's pants and raped her again.   He then returned to the front seat and continued driving and talking about money.

About 20 minutes after his second sexual attack, defendant stopped the car again.   He opened the trunk and told Karen to get in.   She did so and defendant resumed driving.   He drove for about an hour before stopping.   Defendant drove again, stopped and talked with someone, then drove on.

About 10 minutes after his last stop, defendant stopped again, opened the trunk and told Karen, “I know you are going to go to the police, so I might as well fuck you to death.”   He climbed into the trunk and raped her a third time.   Defendant got out of the trunk and left Karen inside.   After driving for about 10 minutes, defendant stopped and asked her if she was all right.   When Karen said she was, defendant told her he was going to leave her.   He opened the trunk a few inches to take her watch from her, then threw it back inside and closed the trunk.   Karen noted it was then about 8:20 a.m., three hours after her arrival in Stockton.

Defendant drove the car for 10 or 15 more minutes.   He then stopped again, put the trunk key into the lock and walked away.   Karen was let out of the trunk by passersby 15 or 20 minutes later.

Karen suffered a concussion, abrasions and scratches over about 40 percent of her body, and a cut in her vaginal area.   She was missing her sunglasses, food stamps, and approximately $2 from her purse.

Defendant's fingerprints were on Karen's car.   Two pubic hairs found in the victim's pubic area may have been defendant's, and semen in the victim's underwear could have come from defendant.

Much of the cross-examination of Karen focused on her identification of defendant as the assailant.   Defendant and his mother and sister all testified he was asleep in his mother's home during the time of the incident.   Defendant claimed he got up briefly, then returned to bed.   According to defendant, a black man in a blue car approached him, offering to sell defendant food stamps.   Defendant got into the car and directed the man, whom he did not know, to the home of a neighbor who defendant thought might buy them.   Defendant knocked on her door but received no answer.   He returned to the car and went home.   Defendant's mother told the jury defendant got up about 10 a.m.

DISCUSSION

I–III 3

IV

Defendant contends the court committed sentencing errors.   He claims:  (1) Penal Code section 654 precludes the imposition of sentence for defendant's kidnaping conviction;  (2) Penal Code section 667.6 applies only to multiple sex offenses, so that one of the rape convictions must be the principal term;  (3) the case must be remanded for resentencing as a result of the court's failure to state whether it imposed full consecutive terms for the rape convictions pursuant to Penal Code section 667.6, subdivision (c), or Penal Code section 667.6, subdivision (d);  and (4) that if the sentencing choice is 667.6, subdivision (c), reasons for the choice must be given.

A.

The sentencing court, selecting the kidnaping conviction as the principal term, imposed the middle term of 5 years.   For the robbery conviction, the court imposed the middle term of 3 years.   It ordered that term to be subordinate to the kidnaping term and consecutive thereto.   Accordingly, the court stayed two of the three years.

The court imposed the middle term of 6 years for each of the three convictions for rape, and ordered each to be served consecutively.   Full consecutive terms were imposed on each of the three rape convictions.   The total unstayed term was 24 years.

The court then stated:  “It is the decision of the Court that each of these offenses of which the defendant was convicted in the proceeding is separate and distinct.   They were committed at different locations, at different times and had different criminal objectives, and the Court concludes that Penal Code section 654 is applicable and that the defendant is being sentenced separately for each of said offenses.”

Defendant claims the imposition of sentences for kidnaping and rape violates the proscription against multiple punishment contained in Penal Code section 654.   He urges the kidnaping had no criminal purpose separate from commission of the rapes.⁴

 Section 654 provides, in pertinent part, that “[a]n 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;  ․”   The statute does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct.  (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.)

“The proscription against double punishment ․ is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute ․  The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.  [Citations.]”  (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637.)

 On the other hand, if the evidence discloses the defendant entertained multiple criminal objectives independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even if the violations were parts of an otherwise indivisible course of conduct.  (People v. Perez, supra, 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)   The purpose of the proscription is to ensure that the defendant's punishment will be commensurate with his criminal liability.  (Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

 Although the determination whether the facts and circumstances reveal a single intent and objective within the meaning of section 654 is a factual matter, whether section 654 was properly applied is a question of law.   (People v. Perez, supra, 23 Cal.3d at p. 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63.)   The People, seeking to uphold the court's finding, argue the kidnaping had two distinct criminal objectives:  the rapes and “the concealment of his victim while rendering her immobile and helpless afterward to prevent her from immediately reporting his crimes to authorities.”

 In prosecutions for kidnaping and rape, where the kidnaping was the result of an intent to rape, imposition of separate sentences for both offenses contravenes section 654.  (People v. Masten (1982) 137 Cal.App.3d 579, 589, 187 Cal.Rptr. 515.)

 Here the evidence suggests while the victim was in the car defendant ordered her to conceal herself in the back seat where a second rape took place.   He then ordered her to conceal herself in the trunk, where a third rape took place.   Thereafter, defendant continued to drive about with the victim in the trunk.   Aside from the desire to conceal the victim and make good his escape, the People have not clearly pointed to any distinct criminal objective other than as incidental to these three vicious rapes, with all the threats and trauma incident thereto.   Even though the intent to commit one offense is not formulated until after the commission of another offense, section 654 may preclude punishment for both offenses.  (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817, 177 Cal.Rptr. 627.)   In other words, the fact that one crime was completed before another was commenced, or was an afterthought, does not itself make the criminal acts divisible.  (People v. Bauer, supra, 1 Cal.3d at p. 377, 82 Cal.Rptr. 357, 461 P.2d 637.)   In Bauer, the defendants entered a home, robbed the occupants and then took their automobile.   The Supreme Court applied section 654 to the automobile theft.   In People v. Panky (1978) 82 Cal.App.3d 772, 775, 147 Cal.Rptr. 341, after robbing and raping the victim, the defendant then accompanied her to her apartment before escaping.   The court held that kidnaping could not be punished as a separate offense.

 We find the kidnaping was indivisibly related to the rapes.   Therefore, section 654 precludes the imposition of a consecutive term for the kidnaping conviction.  (People v. Masten, supra, 137 Cal.App.3d at p. 589, 187 Cal.Rptr. 515.)

 The appropriate procedure for remedying a section 654 violation is to stay execution of the sentence imposed for the lesser offense;  such stay becomes permanent when service of sentence for the greater offense is completed.  (In re Adams (1975) 14 Cal.3d 629, 636–637, 122 Cal.Rptr. 73, 536 P.2d 473.)   The punishment for kidnaping is less severe than that for rape.   Accordingly, we will order service of the kidnaping sentence stayed until completion of the other sentences, such stay then to become permanent.   (See People v. Masten, supra, 137 Cal.App.3d at p. 590, 187 Cal.Rptr. 515.)

B.

Penal Code section 667.6 was enacted as part of a legislative package dealing with violent sexual offenses.  (Stats.1979, ch. 944, § 10, p. 3258.)   Section 667.6, subdivision (c), provides that full, separate and consecutive terms may be imposed for certain sex offenses “whether or not the crimes were committed during a single transaction.” ⁵  In such a case, the sentencing court must exercise its discretion to determine whether to sentence the defendant under Penal Code section 1170.1 or, in lieu of that pursuant to section 667.6, subdivision (c).  (Pen.Code, § 667.6, subd. (c);  People v. Belmontes (1983) 34 Cal.3d 335, 343, 193 Cal.Rptr. 882, 667 P.2d 686.)

Section 667.6, subdivision (d), provides that where a defendant is convicted of certain sex offenses against separate victims, or against the same victim on separate occasions, “[a] full, separate and consecutive term shall be served ․”  (Emphasis added.)   Subdivision (d), like subdivision (c), provides for a special consecutive term in lieu of the principal-subordinate scheme embodied by section 1170.1.  (People v. Stought (1981) 115 Cal.App.3d 740, 742, 171 Cal.Rptr. 501.)   Unlike subdivision (c), subdivision (d) provides for mandatory application in certain instances.

By its express terms, section 667.6 provides for a sentencing scheme separate from that contained in section 1170.1, which allows imposition of one-third consecutive terms.   If the sentencing court finds reasons to proceed under section 667.6, the calculation of consecutive terms for certain sex offenses must be accomplished independently from the 1170.1 scheme.   Subdivision (c) of 667.6 states it is utilized “[i]n lieu of the term provided in Section 1170.1 ․”  Subdivision (d) states “[s]uch term shall be served consecutively to any other term of imprisonment ․”  (People v. Belmontes, supra, 34 Cal.3d at p. 344, 193 Cal.Rptr. 882, 667 P.2d 686.)

 Here, the trial court calculated the kidnaping and robbery terms pursuant to section 1170.1.   If section 654 did not bar imposition of punishment for kidnaping, the court's selection of kidnaping, the nonsex offense with the greatest term of imprisonment, as the principal term would have been proper.   The court then calculated sentences for the rape convictions pursuant to section 667.6, before adding the total of the section 1170.1 computation to the total of the section 667.6 computation.   This was proper.  (People v. Belmontes, supra, 34 Cal.3d at p. 346, 193 Cal.Rptr. 882, 667 P.2d 686.)

 Defendant's claim that section 667.6 does not apply to cases involving both sex and nonsex offenses is meritless.⁶  Our Supreme Court has recently held section 667.6, subdivision (c), is a separate, alternative sentencing scheme for offenses within its ambit.   If a defendant is convicted of both sex offenses and nonsex offenses, the sentencing court may properly designate the longest nonsex offense as the principal term and may treat all of the sex offenses under section 667.6, subdivision (c).   (People v. Belmontes, supra, 34 Cal.3d at p. 346, 193 Cal.Rptr. 882, 667 P.2d 686.)   A fortiori, the same reasoning applies to the application of subdivision (d).

Defendant also urges remand is necessitated by the court's failure to state reasons for a sentencing choice under section 667.6, subdivision (c), rather than section 1170.1 and to specify whether full consecutive sentences for the rapes were imposed pursuant to subdivision (c) or subdivision (d) of section 667.6.   Defendant impliedly concedes that, if the court imposed sentence pursuant to subdivision (d), no statement of reasons for imposition of sentence under that mandatory statute rather than under section 1170.1 is required.   If the other sentence was not under subdivision (d), there must be a remand to comply with Belmontes.

In imposing fully consecutive sentences on the sex offense convictions, the trial court did not indicate whether it was proceeding under subdivision (c) or subdivision (d).   Neither the probation report nor the abstract of judgment suggests which section should apply.   The court did not state that the rapes were on “separate occasions.”   The findings were made by the court, as we have stated, that the offenses were committed at different times, were separate and distinct and committed at different locations, with different criminal objectives.   Are these findings, under the facts of this case, equivalent to “separate occasions,” or is it necessary for the trial judge to recite the express subparagraphs of the statute?   In examining the findings in the record, we must be able to conclude that the acts fall unquestionably within section 667.6, subdivision (d);  otherwise, we must remand to the trial court.   The question is not without some complexity.

As we have noted, section 667.6, subdivision (c), provides, after enumeration of sex offenses, that the court may impose consecutive sentences “whether or not the crimes were committed during a single transaction․”

While section 667.6, subdivision (d), provides mandatory full-term consecutive sentencing for the same crimes committed on separate occasions, it follows that subdivision (c) may apply to acts committed during different transactions on the same occasion.   What then, is the distinction between different transactions on the same occasion and separate occasions?

 People v. Fleming (1983) 140 Cal.App.3d 540, at page 545, 189 Cal.Rptr. 619, addressed what is meant by “separate occasions,” stating “that some intervening events or passage of time must occur between sexual offenses.”   We presume that because of the possibility of multiple criminal activity during a single occasion under section 667, subdivision (c), that the Legislature intended by the use of the words “separate occasions” in subdivision (d) to convey a greater concept of detachment.   The detachment must be a clear cessation between sex acts and an interruption in the chain of events of sufficient duration or nature that the end of one episode and the beginning of another can be reasonably ascertained.

 Here, the facts show three sexual assaults, each set apart by a lengthy interval of time during which defendant drove the victim's automobile.   Defendant committed the first rape outside the victim's vehicle.   He then pushed her into the car and drove for some time before climbing into the back seat and raping the victim a second time.   Over one hour after the second attack, defendant climbed into the trunk where he had ordered the victim to go, and raped her again.   Each attack was independent of and distinct from the other, separated by an interruption of sufficient nature and duration so that the start of the next attack could be discerned with reasonable certainty.   Each attack occurred in a different place around the victim's car and in a different geographical location, over a period of time in excess of two hours.   In sum, the facts fit the trial court's specific findings and are supported by substantial evidence.   These distinct acts separated in time and place are the equivalent of separate occasions.   Consecutive sentencing was therefore mandated under section 667.6, subdivision (d), and the trial court was not required to state the reasons for the sentencing choice between section 1170.1 and section 667.6, subdivision (c).

The court selected the kidnaping conviction as the principal term.   Under People v. Belmontes, supra, 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686, we have indicated, that selection was proper.   However, defendant may not be separately punished for kidnaping.   Accordingly, remand is necessary in order for the court to designate robbery, the only remaining nonsex offense, as the principal term and to select the lower, middle or upper base term for the robbery conviction and resentence accordingly.

V.7

DISPOSITION

The judgment of the trial court is modified to stay imposition of sentence for the kidnaping conviction until defendant has completed the remainder of his sentences, at which time the stay shall become permanent.   The judgment is remanded for resentencing in accordance with the views expressed in this opinion.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Pursuant to rule 976.1 of the California Rules of Court, the Reporter of Decisions shall publish only the following portions of this opinion:  the Introduction, Facts, Part IV of the Discussion, and Disposition.

2.   Karen recognized defendant as her assailant at the preliminary hearing.   She identified defendant at trial and was certain he was her assailant.

3.   See footnote 1 ante.

4.   Defendant does not urge separate punishment for each of the rapes violates section 654.   Separate punishment under these circumstances is permitted.  (See People v. Perez (1979) 23 Cal.3d 545, 553–554, 153 Cal.Rptr. 40, 591 P.2d 63.)

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

6.   Under defendant's claim, a rape conviction would be the principal term and robbery subordinate thereto, with the aggregate sentence calculated pursuant to section 1170.1.

7.   See footnote 1 ante.

FRANCIS, Associate Justice.* FN* Assigned by the Chief Justice.

CARR, Acting P.J., and SIMS, J., concur.