PEOPLE v. SIKO (1985)

Defendant appeals from his conviction of forcible rape, sodomy, assault by means of force likely to produce great bodily harm and commission of lewd and lascivious acts upon a minor under age 14.   He contends the court erred in its sentencing order;  there was insufficient evidence of penetration to support the rape conviction;  and the court erred in admitting photographs depicting injuries suffered by the victim.

FACTS

Nine-year-old Shawna was at home alone one evening watching a movie on television.   Her mother had gone to the store after warning her to lock the door and let no one in.

As Shawna sat on the couch watching television, she heard a knock on the door.   She went to the door and asked who it was.   A voice answered, “Steve.”   Shawna recognized the voice and name, but told the caller that her mother had told her not to let anyone in.   The voice kept saying, “Please, let me in.”

Shawna opened the door.   Defendant walked in and sat down on the couch.   Shawna again said that her mother had told her not to let anyone in and told defendant to leave.   Defendant said he would sit on the wall outside the apartment, and told Shawna to leave the door open.   He then went outside.

After about ten minutes, defendant got off the wall and went back into Shawna's apartment.   Defendant sat on the couch and said, “Come here, Shawna.”   He then asked her how much money she wanted in all her life.   Shawna replied, “Five dollars.”   Defendant told Shawna to go in the bathroom and pull down her pants.   When Shawna refused, defendant took out a blue handkerchief from his pocket and twisted it around her neck.   Though the handkerchief was not too tight, it felt as though a string were going into her neck.   Defendant let go and then twisted the handkerchief around Shawna's neck once again.   When appellant let go again, Shawna screamed because she was dizzy.   When Shawna screamed, defendant looked at her “funny,” as though he were “laughing or smiling or something.”

Defendant dragged Shawna to the bedroom and dropped her on the bed.   He pulled off her pants and underwear.   Then, he took her to the bathroom and locked the door.   He told Shawna to bend over the bathtub.   Shawna was scared and complied.   Defendant placed his “wienie” into her “butt” “a little bit.”   When Shawna tried to scream, defendant covered her mouth.

Defendant then laid Shawna on the floor on her back and put his “wienie” into her vagina “a little bit.”   When Shawna screamed, defendant hit her in the mouth, which caused Shawna to become dizzy.   At some point in the bathroom Shawna tried to fight defendant, scratching his hand.

Finally, defendant put Vaseline on Shawna's vagina and threw her clothes in to her.   He warned Shawna that if she told her mother what happened when he got out of jail he would punch her in the mouth.   Then he left.

We dispense with a recitation of the remaining facts because they are pertinent only to the unpublished portion of this opinion.  (Cal.Rules of Court, rule 976.1, subd. (a).)  To the extent they are relevant, the facts are discussed in our resolution of the issues in that portion of the opinion.

DISCUSSION

1. Section 667.6, Subdivision (c) Excepts Violent Sex Crimes from the Prohibition Against Multiple Punishments for a Single Transaction.

Defendant was convicted and sentenced on each of four offenses:  lewd and lascivious conduct with a minor by use of force (Pen.Code, § 288, subd. (b));  forcible rape (Pen.Code, § 261, subd. (2));  sodomy with a person under 14 years of age or against the victim's will by means of force (Pen.Code § 286, subd. (c)) and assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1).)   He contends Penal Code section 654 prohibits the infliction of punishment for all three sex offenses.¹  This issue is squarely presented because the lewd and lascivious conduct for which he was convicted consisted of the forcible rape and the sodomy for which he was also convicted.

We have considered and rejected the People's argument the defendant committed lewd and lascivious acts independent of the rape and sodomy.   The evidence showed that prior to the rape and sodomy defendant put a handkerchief around Shawna's neck and smiled or laughed as he twisted it.   Defendant then dragged Shawna into the bedroom where he pulled off her pants and underwear.

 The first act, twisting the handkerchief around Shawna's neck, is not the sort of sexually offensive conduct normally found in section 288 offenses.  (See People v. Dontanville (1970) 10 Cal.App.3d 783, 795, 89 Cal.Rptr. 172;  People v. Webb (1958) 158 Cal.App.2d 537, 542, 323 P.2d 141.)   True, any kind of touching of the victim could, conceivably, be done with the intent of arousing, gratifying or appealing to the perpetrator's lust, passions or sexual desires.   However, twisting the handkerchief around the victim's neck while laughing is not the sort of conduct from which such an intent can be inferred.  (Cf. Webb, supra, 158 Cal.App.2d at p. 542, 323 P.2d 141;  People v. McCurdy (1923) 60 Cal.App. 499, 502, 503, 213 Pa. 59.)   There was no direct evidence this conduct was done with the requisite intent.   The second act, undressing Shawna, was clearly prefatory to the rape and sodomy and cannot itself be the basis of a violation of section 288.   (People v. Greer (1947) 30 Cal.2d 589, 604, 184 P.2d 512.)

Turning to the section 654 issue, there is considerable authority to support defendant's position that when a single act constitutes a violation of both section 288, subdivision (b) and another crime contained in part one of the Penal Code (e.g., forcible rape) the defendant cannot be punished for both offenses.  (See, e.g., People v. Greer, supra;  People v. Perez (1979) 23 Cal.3d 545, 553, 153 Cal.Rptr. 40, 591 P.2d 63;  People v. Perkins (1982) 129 Cal.App.3d 15, 19, 180 Cal.Rptr. 763;  People v. Osuna (1984) 161 Cal.App.3d 429, 207 Cal.Rptr. 641.) ²  Thus, under the cases cited, defendant can be punished for rape and for sodomy or for lewd and lascivious conduct together with rape or sodomy, but he cannot be punished for all three.

 These authorities do not, however, consider the effect of Penal Code section 667.6, subdivision (c) on the court's ability to impose punishment for multiple violent sex offenses composing a single criminal transaction.   For the reasons set forth below, we hold section 667.6, subdivision (c) authorizes punishment for lewd and lascivious conduct as well as for forcible rape and forcible sodomy even though the latter offenses are the forcible lewd and lascivious acts involved in the case.

 Subject to constitutional restrictions, the Legislature may punish crimes in any manner it sees fit.  (People v. Dillon (1983) 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d 697;  Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.)   The rule against multiple punishment for a single act derives solely from section 654.   (People v. Tideman (1962) 57 Cal.2d 574, 578, 585, 21 Cal.Rptr. 207, 370 P.2d 1007.)   It is not the equivalent of the constitutional prohibition against punishment for included offenses or double jeopardy.  (People v. Greer, supra, 30 Cal.2d at p. 601, 184 P.2d 512;  People v. Kehoe (1949) 33 Cal.2d 711, 713, 204 P.2d 321;  and see Gore v. United States (1958) 357 U.S. 386, 392, 78 S.Ct. 1280, 2 L.Ed.2d 1405.)   Thus, the Legislature is free to modify this rule if it so desires.  (People v. Greer, supra, 30 Cal.2d at p. 603, 184 P.2d 512.)   In fact, Greer specifically noted there was no constitutional impediment to punishing the defendant once for statutory rape and once for lewd and lascivious conduct for the same act.  (30 Cal.2d at p. 603, 184 P.2d 512.)   We conclude from the language of the statute and its evident purpose that in enacting section 667.6, subdivision (c) the Legislature created an exception to the rule against multiple punishments for a single act even where all the offenses involved one violent sex crime.

 The starting point for interpreting a statute is the language of the statute itself.   If it is clear and unambiguous, there is no need for an overlay of judicial construction.  (Guelfi v. Marin County Employees' Retirement Assn. (1983) 145 Cal.App.3d 297, 302, 193 Cal.Rptr. 343.)   The Legislature's choice of words compels the conclusion section 667.6, subdivision (c) ³ is an exception to section 654 as far as violent sex crimes are concerned.  Section 667.6 subdivision (c) may be applied “in lieu of” section 1170.1.⁴  Section 1170.1 is specifically limited by section 654;  section 667.6, subdivision (c) is not.   Even more telling, section 667.6, subdivision (c) provides “a full, separate, and consecutive term may be imposed for each violation of [sections 261, subdivision (2);  286, subdivision (c) and 288, subdivision (b) ].”  (Italics added.)

 Recognition that the same act may violate more than one penal law is the very reason why section 654 was enacted.  (See, People v. Beamon (1973) 8 Cal.3d 625, 636, 105 Cal.Rptr. 681, 504 P.2d 905.)   Therefore, the Legislature's use of the word “violation” in section 667.6, subdivision (c) instead of the word “conviction”, which it used in section 1170.1, subdivision (a), is convincing evidence subsection (c) applies irrespective of the limitation on punishment contained in section 654.   Furthermore, while section 654 prohibits multiple punishment for “[a]n act or omission which is made punishable in different ways by different provisions of this code ․”, section 667.6, subdivision (c) provides for the imposition of consecutive terms “whether or not the crimes were committed during a single transaction.”   If “single transaction” were interpreted merely to mean separate acts constituting a single course of conduct, the quoted language would serve no purpose.   It was well-established before the enactment of section 667.6 a defendant committing a series of sexual acts upon his victim in a single course of conduct could be separately sentenced for each act.  (See People v. Slobodian (1948) 31 Cal.2d 555, 562, 191 P.2d 1;  In re McGrew (1967) 66 Cal.2d 685, 689, 58 Cal.Rptr. 561, 427 P.2d 161;  People v. Hicks (1965) 63 Cal.2d 764, 766, 48 Cal.Rptr. 139, 408 P.2d 747;  People v. Cline (1969) 2 Cal.App.3d 989, 994, 83 Cal.Rptr. 246.)   In construing a statute, it is a cardinal rule every word is presumed to have some meaning and a construction making some words surplusage is to be avoided.  (In re Marriage of Galis (1983) 149 Cal.App.3d 147, 153, 196 Cal.Rptr. 659.)

Our construction of section 667.6 is consistent with the legislative intent behind that section which is obviously to authorize much harsher sentences than are authorized by section 1170.1.  (People v. Belmontes (1983) 34 Cal.3d 335, 343–344, 193 Cal.Rptr. 882, 667 P.2d 686;  Selected 1979 Cal. Legislation, 11 Pac.L.J. 429, 438.)   And, while the imposition of multiple punishments is harsh, it is not unreasonable in the context of violent sex crimes against the very young.  Sections 288, 261 and 286 express independent legislative policies.  Section 288, subdivision (b) protects the very young from forcible lewd and lascivious acts.  Section 261, subdivision (2) protects persons of all ages from forcible rape.  Section 286, subdivision (c) protects the very young from sodomy whether or not by force.   The result of authorizing separate punishment for each of these crimes is to assure one who commits a violent sex act upon a very young person can be subjected to a heightened level of punishment his aggravated culpability deserves.

The case before us is distinguishable from People v. Masten (1982) 137 Cal.App.3d 579, 187 Cal.Rptr. 515 in which the court held section 667.6, subdivision (c) does not create an exception to section 654 so as to allow separate punishment for kidnapping and rape where the kidnapping is but a part of a continuous course of conduct incidental to the rape.  (Id. at p. 589, 187 Cal.Rptr. 515.)  (See People v. Panky (1978) 82 Cal.App.3d 772, 783, 147 Cal.Rptr. 341;  People v. Rocco (1971) 21 Cal.App.3d 96, 109–110, 98 Cal.Rptr. 365.)   The court in Masten found the legislative history of section 667.6 negated this interpretation.   Subdivision (c) originally provided “․ whether or not the crimes were committed with a single intent or objective or during a single transaction.”   The italicized language was deleted from the final version of the bill.  (Ibid.)  The court also noted:  “[S]ubdivision (c) by its terms provides for harsher sentences for violent sex offenses.   Kidnapping is not included in the section's list of enumerated crimes.”  (Ibid.)  The analysis in Masten supports our conclusion in the case at bench.   The facts that the Legislature retained the reference to a “single transaction” and specifically referred to section 288, subdivision (b) among the violent sex crimes it listed is evidence the Legislature intended to permit a separate sentence for a violation of that section as well as the offense underlying it.

Accordingly, we hold that in adopting section 667.6 the Legislature created an exception to section 654 as to the violent sex crimes enumerated in subdivision (c).

2. There Was Sufficient Evidence to Convict Defendant of Forcible rape.5

3. The Photographs Depicting Shawna's Injuries Were Properly Admitted.5

DISPOSITION

The judgment 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.   Osuna goes further, interpreting Greer as prohibiting conviction of both offenses.  (161 Cal.App.3d at pp. 433–436, 207 Cal.Rptr. 641.)   We need not address that issue here.

3.   Section 667.6 provides as follows:“(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) of 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 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.”

4.   Section 1170.1(a) provides as follows:“(a) Except as provided in subdivision (c ) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to section 667.5 * * *, 667.6, or 12011.1.   The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.3, 12022.5, 12022.6, 12022.7 or 12022.8.   The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements.   In no case shall the total of subordinate terms for such consecutive offenses which are not ‘violent felonies' as defined in subdivision (c) of Section 667.5 exceed five years.   The subordinate term for each consecutive offense which is a ‘violent felony’ as defines in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7.”

5.   See footnote *, ante.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.