PEOPLE v. HARRISON (1987)

Daryl Harrison was convicted by jury of three counts of forcible genital penetration with a foreign object (Pen.Code,1 § 289, subd. (a) and residential burglary (§ 459).   Harrison admitted a prior conviction of assault with a deadly weapon.   The court sentenced Harrison to serve seventeen years in prison:  the upper term of eight years on one count of genital penetration;  and two years (one-third the middle term) on each of the other two counts of penetration, enhanced by five years for prior conviction of a serious felony.   The court stayed execution of sentence on the burglary conviction pursuant to section 654.   Harrison appeals.

Viewing the facts in the light most favorable to the prevailing party as this court must (see People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738), the following occurred.

On June 12, 1985, at approximately 5:15 a.m., V.N. was awakened when she heard noises in her apartment.   She sat up in bed and reached for her glasses.   V.N., who lives alone, became alarmed and started to reach for the phone beside her bed.   As she did so she saw Harrison rush through her bedroom door.   She began to scream.   Harrison grabbed her shoulders and started hitting her in the face.   Harrison reached inside her underwear and put his finger in her vagina.   While fending off the attack V.N. found herself half standing beside her bed.   She continued to struggle and Harrison's finger came out.   Harrison then pushed V.N. on to the bed.   V.N. continued to scream and Harrison put his hand over her mouth and put his finger in her vagina a second time.   V.N. pried his hand off her mouth and Harrison began to strike her again in the face.   V.N. was able to free herself and rolled to the other side of the bed attempting to get to the door.   As she started to run Harrison grabbed her by her hair and pulled her back.   Harrison punched V.N. in the throat and once again inserted his finger in her vagina.   V.N. continued to struggle and the two ended up on the floor with Harrison on top of her.   V.N. told Harrison that “if you'll just stop this, we can do it.”   V.N. then entered the bathroom, locked the door, opened the window and began to scream “rape.”

The first penetration was approximately four seconds.   The second and third penetrations lasted approximately five seconds each.   The entire attack lasted seven to ten minutes.

Harrison contends:  the evidence was insufficient to support more than one count of penetration of a vaginal opening with a foreign object;  consecutive sentences were improper because each act was committed as a means of accomplishing the other;  and, the trial court erred in imposing the five-year enhancement for prior conviction of a serious felony.

I

Harrison contends the evidence supports conviction of only one forcible penetration of V.N.'s vagina.   He argues each of the three penetrations were part of one criminal act.   He says, “The legislature [sic], in defining the crime of forceful [forcible] rape (i.e. Penal Code § 289(a)) [sic], recognized that more than one penetration of the victim's vagina would occur during a forceful [forcible] rape.”   However, no authority is cited to support this expression or its application here.

Our analysis begins with People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63.   Perez committed acts of sodomy, oral copulation and rape against a single victim within a 45 minute time span.   At sentencing, the court held section 654 precluded punishment for the sodomy and oral copulation convictions because those crimes were committed with the same intent and objective as the rape.   The Supreme Court reversed finding the purported common intent and objective, achieving sexual gratification, far too “broad and amorphous to determine the applicability of section 654.”  (People v. Perez, supra, 23 Cal.3d at p. 552, 153 Cal.Rptr. 40, 591 P.2d 63.)   Implicit in the Supreme Court's holding is the principle that while section 654 focuses attention on a perpetrator's state of mind to determine whether a given course of conduct is indivisible, the section's prohibition is not triggered by the fact it is possible to characterize several criminal intents with a single generalization.

The court observed that to find such an overarching general intent operated “to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability.”  (Ibid.)  The court stated “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.”  (Id. at p. 553, 153 Cal.Rptr. 40, 591 P.2d 63.)   The court concluded, “we find no basis ․ for applying section 654 in this case.   None of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other.   We therefore conclude that section 654 does not preclude punishment for each of the sex offenses committed by defendant.”  (Id. at pp. 553–554, 153 Cal.Rptr. 40, 591 P.2d 63.)

 From Perez we distill the principle that when a defendant's course of conduct involves several distinct sexual offenses, the mere fact all may be characterized as pursuant to a wish for sexual gratification will not preclude separate punishment for each offense.   Something more is needed to invoke section 654.   That something more may appear if an offense is an instrumentality of another crime or incident to it.

 Not addressed in Perez is the question what constitutes a distinct sexual offense.   Three cases since Perez consider that issue.   Unfortunately for any court seeking refuge in precedent, they reach contrary conclusions.

People v. Clem (1980) 104 Cal.App.3d 337, 163 Cal.Rptr. 553, concerns five incidents of vaginal penetration over a period of two and one-half hours in the back seat of an automobile.   Clem, convicted of five counts of rape argued there was but a single sexual transaction and attempted to distinguish Perez on the basis it involved diverse sexual acts.   Citing Perez, the court rejected the argument:

“Under Penal Code, section 261 rape is an act of sexual intercourse.   Any sexual penetration, however slight, is sufficient to complete the crime.  (Pen.Code, § 263.)   The act is not defined by the sexual gratification of the rapist.  [Citation.]   Nor should the punishment depend upon the implementation by the rapist of but one as opposed to a variety of forms of sexual intercourse.   As stated in Perez [23 Cal.3d] at page 553 [153 Cal.Rptr. 40, 591 P.2d 63], ‘A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’   This is equally applicable to several acts of one sexual type as it is to several acts of a variety of sexual types.   If this were not so there would be no way in which to make the punishment fit the crime [citation], and we would be in the absurd position of rewarding the rapist for his lack of sexual imagination.”  (People v. Clem, supra, 104 Cal.App.3d at p. 347, 163 Cal.Rptr. 553.)

People v. Marks (1986) 184 Cal.App.3d 458, 229 Cal.Rptr. 107 involves a factual situation and argument similar to the case before us.   Defendant was convicted of two counts of sodomy based upon two forcible penetrations within a short period of time.   He argued that though two separate contacts occurred, they were part of only one offense since close in time.   The court rejected the contention citing both Clem and Perez.

“Defendant's argument that the ‘interruption’ between the two contacts and penetrations was so brief as to render them part of one act is fully answered by the discussion of acts of rape in Clem.  (Id., [104 Cal.App.3d] at p. 347 [163 Cal.Rptr. 553].)  Nevertheless, it is worth reiterating that during the ‘interruption’ defendant let go of Ms. E.'s bathrobe, moved her to another part of the room, forced her to her knees, covered her head with sleeping bags, and again lifted her bathrobe.   To seek to characterize this incident as one sexual offense is to ignore the obvious fact that shoving Ms. E. around the room, repositioning her, and covering her head ․ constituted a series of brutal acts separating two forced acts of contact and painful penetration.   It is difficult to see how this course of events can be likened, as defendant tries to do, to a cough during sexual intercourse or a pause to apply a lubricant.”  (People v. Marks, supra, 184 Cal.App.3d at p. 467, fn. 8, 229 Cal.Rptr. 107.)

Referring to Perez, the court stated:  “Defendant, who caused his victim to undergo two separate humiliating and painful violations of her body, was more culpable in committing the two acts of sodomy than if he had committed only one.  (Id. [23 Cal.3d] at p. 553 [153 Cal.Rptr. 40, 591 P.2d 63].)”  (People v. Marks, supra, 184 Cal.App.3d at p. 467, 229 Cal.Rptr. 107.)

Two apparently unexceptionable principles emerge.   The facts of a given situation can indicate that one sexual offense has concluded and another similar act begun even though very little time has passed and the perpetrator persists in an unbroken and overarching intent to obtain sexual gratification and a victim who is subject to two or more such incidents has suffered a greater indignity than a victim subjected to only one such violation.

People v. Hammon (1987) 191 Cal.App.3d 1084, 236 Cal.Rptr. 822, however, finds the principles exceptionable and parts company with both Clem and Marks.   Hammon was convicted of 11 sexual offenses involving an infant which the defendant memorialized in some 111 photographs.   As did Marks, he argued the several sexual acts were committed within a short time, constituted continuous conduct and could be punished only once.

The court first observed the question when one offense ended and another began was one which had confounded more than one court.   The court then proposed a solution to the conundrum in the sexual offense context by stating four exclusive criteria:  “[W]e hold that identical sexual acts constitute separate and discrete crimes when they are separated (1) by the commission of a different sexual offense, (2) by sexual climax, (3) by an appreciable passage of time, or (4) by a reasonable opportunity for reflection.”  (People v. Hammon, supra, 191 Cal.App.3d at p. 1099, fn. omitted, 236 Cal.Rptr. 822.)   The court then applied its criteria to the offenses depicted in Hammon's photographs to reduce his convictions from 11 to 4.  (People v. Hammon, supra, 191 Cal.App.3d at pp. 1100–1101, 236 Cal.Rptr. 822.)

On analysis, we believe the Clem and Marks cases state a rule more consistent with the Legislature's authority completely to define criminal offenses and with the reasoning of the Supreme Court in Perez.

Examined closely, Hammon's four criteria for determining when a series of statutorily identical sex offenses constitute discrete crimes actually resolve to but one.   The first criterion, when they are separated by a different sexual offense is always irrelevant to the problem presented since, by definition, one is considering a series of identical offenses not punctuated by others.   The next two criteria, sexual climax and an appreciable passage of time are actually factual circumstances from which one may conclude that the fourth criterion has occurred, a reasonable opportunity for reflection.   Hammon then stands for the proposition a series of identical sexual offenses may be said to be separate when, from the factual circumstances, one may reasonably conclude that the perpetrator has had a reasonable opportunity for reflection.

A threshold and critical failing in the Hammon analysis is that its test effectively judicially legislates a new definition for the crime of rape.   “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances ․ (2) Where it is accomplished against a person's will be means of force ․ or fear of immediate and unlawful bodily injury on the person or another.”  (§ 261, subd. (2).)  “Any sexual penetration, however slight, is sufficient to complete the crime.”  (§ 263, italics added.)”   What is true of rape is equally so of the statutory definition of forcible genital penetration with a foreign object.  (§ 289, subd. (a).)  As with rape, the Legislature has defined the crime as any penetration however slight, with no reference to whether the perpetrator has had an opportunity to reflect upon his conduct.  Clem and Marks compare a defendant's conduct to a statutory definition without reference to additional elements.  Hammon does not.  Clem and Marks thus comport with the Legislature's sole power to define offenses.  Hammon does not.²

We also reject the Hammon test as fundamentally inconsistent with the reasoning of the Supreme Court in People v. Perez, supra.   We reach this conclusion by first observing that the Hammon criteria are internally contradictory.  Hammon teaches that sex offenses are discrete and individually punishable if:  (1) they are committed alternately;  whether or not the perpetrator has had an opportunity to reflect upon his conduct;  or (2) if the perpetrator has had an opportunity to reflect upon his conduct between identical acts.  Hammon does not explain why individuals in either class should be treated differently than those in the other.   Logic would dictate equal treatment.   From the point of view of either outrage to the victim or culpability of the offender, there is no reason to distinguish between one who, with the same opportunity to reflect, alternately rapes and sodomizes his victim and one who repeatedly rapes another victim.

The reason Hammon contains an inconsistency, is, of course, to accommodate Perez.   Perez flatly holds that alternating sexual offenses are separately punishable even though all are committed pursuant to a continuous desire for sexual gratification.  (People v. Perez, supra, 23 Cal.3d at pp. 552–553, 153 Cal.Rptr. 40, 591 P.2d 63.)   To hold the contrary would seize upon a standard far too broad and amorphous to assess individual culpability.   (Ibid.)  The Hammon test is an attempt to resurrect in another context the section 654 state of mind arguments the Supreme Court rejected in Perez.   The difficulty is, as Hammon's creation of an inconsistent test recognizes, the Supreme Court has implicitly rejected that analysis in Perez.   We, of course, are bound by the holdings of the Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937), and therefore must ourselves reject Hammon 's departure from Perez.   Doing so resolves the inconsistency presented by Hammon.   Those who commit a series of identical sexual offenses are to be held equally as culpable as those who carry out a series of alternating offenses.

Rejecting Hammon, however, leads us to the same issue faced in that opinion:  when can statutorily identical sexual acts be said to be separate offenses?   With respect, we do not believe that the question is so unique or bedeviling as Hammon would indicate.   The touchstone must be the Legislature's definition of the offense.   Here, section 289, subdivision (a), penalizes “․ the penetration, however, slight, of the genital or anal openings of another person for the purpose of sexual arousal, gratification, or abuse by any foreign object ․ when the act is accomplished against the victim's will ․”   We agree with Hammon that the issue is not when is an offense complete, but rather, when has it ended.   As Hammon observes:  “[s]imply because, under its technical definition, a crime has begun, does not mean that it has also simultaneously ended.”  (People v. Hammon, supra, 191 Cal.App.3d at p. 1098, 236 Cal.Rptr. 822.)   However, it does not follow that the statutory definition is irrelevant to when a crime has ended.   Quite the contrary.   If the question is when has a violation of section 289, subdivision (a) ended, the answer will be when the forcible penetration has ceased, that is upon withdrawal.   Granted, as in any line-drawing exercise, there will exist cases close to the defined line, for example, the hypothetical cough during intercourse or pause to apply a lubricant envisioned in Marks.  (People v. Marks, supra, 184 Cal.App.3d at p. 467, fn. 8, 229 Cal.Rptr. 107.)   That there may be close calls is not a reason for declining to make the call.   Nor do we believe determining whether there has been a complete withdrawal in this context to be a more difficult factual issue than Hammon 's imperative to determine when an individual has had a reasonable opportunity to reflect.

Harrison's reliance on cases such as People v. McIntyre (1981) 115 Cal.App.3d 899, 176 Cal.Rptr. 3, and People v. Beach (1987) 194 Cal.App.3d 955, 240 Cal.Rptr. 50, is misplaced.   They concern failure to give CALJIC No. 17.01, an instruction which requires that a jury must agree which act a defendant has committed when the information alleges a single offense and the evidence shows more than one act which could constitute that offense.   Those cases are not in point since they do not concern whether a defendant might be charged with or punished for more than one crime on the facts shown, but rather deal with whether a defendant's due process right to fair notice of the charge brought has been violated.  (See People v. Alva (1979) 90 Cal.App.3d 418, 424–425, 153 Cal.Rptr. 644.)   Significantly, they find no due process violation despite the instruction's absence when the facts show two or more offenses so closely connected in time that they in effect form part of one transaction.  (People v. Diedrich (1982) 31 Cal.3d 263, 282, 182 Cal.Rptr. 354, 643 P.2d 971;  People v. Turner (1983) 145 Cal.App.3d 658, 681, 193 Cal.Rptr. 614.)   The fact the cases speak of closely connected multiple “offenses” indicates the issue they address is not that which concerns us here.

 Whether a forcible sexual penetration has ended is a factual question which will depend upon all the circumstances of the offense.   The factual variety of human misconduct precludes our articulating any particular criteria, nor do we propose to add to the Legislature's criminal definition.   Forcible sexual penetration may end when the perpetrator withdraws and moves his victim to a different area where he again initiates the conduct (People v. Marks, supra ), or termination may be inferred from a significant passage of time encompassing several sexual acts.  (People v. Clem, supra.)

 Here, the victim was able to terminate each sexual crime through action on her own behalf, i.e., she forced the assailant away.   Each time Harrison was forced by the victim to stop, the crime was terminated and when he began again to commit the sexual act he had been forced to stop, a new crime was committed.   Harrison committed three crimes.   While the separate penetrations were within the same episode, whether consecutive sentences should be imposed was within the discretion of the trial court.  (See People v. Reeder (1984) 152 Cal.App.3d 900, 916–917, 200 Cal.Rptr. 479.)

II

 The prosecution concedes, as it must, that imposition of a five-year enhancement for prior conviction of a serious felony was error.   The court imposed the enhancement after Harrison admitted he had a prior conviction of assault with a deadly weapon.   This admission alone is not admission of a serious felony.   Since Harrison did not admit he had served a prison term for the conviction, no enhancement is appropriate.  (See § 667.5.) ³

The judgment is reversed as to sentencing only and the case is remanded for resentencing.   In all other respects, the judgment is affirmed.

I dissent as to the consecutive sentencing on counts two and three and concur otherwise in the majority opinion.

Penal Code section 289 ¹ punishes every person “who causes the penetration, however slight, of the genital or anal openings of another person for the purpose of sexual arousal, gratification, or abuse by any foreign object” against the victim's will by means of force or violence.   A finger is a foreign object.  (People v. Wilcox (1986) 177 Cal.App.3d 715, 717, 223 Cal.Rptr. 170.)   The jury convicted Daryl Harrison on three counts of violating section 289.

The victim saw Harrison as he entered her bedroom in the early morning hours.   She raised up in bed, screamed, raised her arms to protect her face.   Harrison grasped her shoulders and struck her upper arms.   As she struggled, she was half standing up beside her bed.   She wore panties under a tattered nightgown.   As she was squirming, Harrison reached inside her nightwear and inserted his finger in her vagina for four seconds.   She squirmed away and his finger came out.   There was more hitting and screaming.   Harrison pushed her down on the bed and for the second time inserted his finger for less than five seconds.   She rolled over, the finger came out and she squirmed out of bed.   Harrison grabbed her, she squirmed, they wound up on the floor.   He inserted his finger again.   She managed to get to the bathroom door, locked the door and screamed for help.   Total elapsed time?   First penetration—4 seconds;  second—5 seconds;  third—less than 5 seconds.   Time between penetrations?   No direct testimony but the squirmings between the penetrations were not prolonged.   Say a total of one or two minutes.   The victim testified the total attack was some six or seven minutes but this included four minutes while she was screaming in the bathroom.   Thus, for three finger penetrations occurring in a space of, at most, two to three minutes, Harrison is sentenced to eight years on the first, and two consecutive two-year terms for the second and third.   He challenges the consecutive sentences, claiming section 654 requires they be stayed as part of an indivisible transaction.   I agree.

Contrary to the majority analysis, I find People v. Hammon (1987) 191 Cal.App.3d 1084, 236 Cal.Rptr. 822 to be analytically correct and persuasive.   Hammon tells us—“To define a sexual offense along the lines of each individual penetration or contact would lead to absurd results.”  (At p. 1097, 236 Cal.Rptr. 822.)   Footnote 11 appended to that statement refers to People v. Clem (1980) 104 Cal.App.3d 337, 163 Cal.Rptr. 553 and People v. Marks (1986) 184 Cal.App.3d 458, 229 Cal.Rptr. 107, cited and followed by the majority here:

“Although they are not explicit on the point, we do not read these decisions to hold that each sexual stroke in the course of rape, sodomy or oral copulation constitutes a separate crime.   Rather, as we understand them, it is each separate penetration, preceded by withdrawal or some other momentary disengagement, that constitutes the new offense.   In this sense, a hundred penetrations would equal a hundred crimes, all separately punishable.  [¶] Our quarrel is not with the results reached in Clem and Marks;  it is with their conclusion that each new penetration constitutes a new crime in all cases and under all circumstances as a matter of law.   Indeed, perhaps manifesting some discomfort with the Clem analysis, the Marks court also noted facts under which it could find the two penetrations to be separate acts.  (184 Cal.App.3d at p. 466, fn. 8 [229 Cal.Rptr. 107].)  It may well have been the case in Clem that five separate rapes occurred during the course of the two and one-half hours attack.   But the issue, in our view, cannot be resolved by simply noting that there were five penetrations.  Clem 's analysis was cited with approval in dictum in People v. Vela (1985) 172 Cal.App.3d 237, 243 [218 Cal.Rptr. 161] ․ and we obviously disagree with that dictum as well.”  (Hammon, supra, 191 Cal.App.3d at p. 1097, 236 Cal.Rptr. 822.)

Hammon states:

“We therefore believe that one intelligent and objective means of distinguishing iterated sexual acts for the purpose of determining whether one or more sexual crimes have been committed is to ascertain from the totality of the facts whether the defendant had a reasonable opportunity to reflect before renewing the attack.   The use of reflection as a criterion of separateness of offenses is not new to the criminal law.  (See, e.g., People v. Calhoun [1983] 141 Cal.App.3d [117], 126 [190 Cal.Rptr. 115] [two rapes ‘separated by some time and thought on defendant's part’];  State v. Garcia (1980) 288 Ore. 413, 428 [605 P.2d 671] ․ [‘Separate punishments for several acts of sodomy would be appropriate if the defendant, after one act, starts anew after a time of reflection.’].)  We adopt it here as one facet of the test of determining whether multiple sex offenses have been committed.   Under this standard, when there is a pause in the attack sufficient to give defendant a reasonable opportunity to reflect upon his conduct, and the attack is nevertheless renewed, a new and separate crime is committed.”  (Id. 191 Cal.App.3d at pp. 1098–1099, 236 Cal.Rptr. 822.)

Here, the trial court at sentencing did not ponder section 654 implications, noting the counts were made consecutive as separate acts of violence or threats of violence under California Rules of Court rule 425(a)(2).

The facts here and Hammon 's analysis of section 654 persuade me sentence as to counts two and three should be stayed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   We note that the Court of Appeal for the Fifth District has recently determined to follow Clem and Marks and to reject Hammon to the extent that case creates a significant time lapse test.  (People v. Hardin (1987) 195 Cal.App.3d 1447, 241 Cal.Rptr. 439 [87 Daily Journal D.A.R. 8516, 8523].)

3.   Since we reverse because substantial evidence does not support the court's finding, retrial of the allegation is barred by the double jeopardy clauses of the federal and California Constitutions (Burks v. United States (1978) 437 U.S. 1, 8, 98 S.Ct. 2141, 2145, 57 L.Ed.2d 1;  People v. Pierce (1979) 24 Cal.3d 199, 210, 155 Cal.Rptr. 657, 595 P.2d 91).

1.   All statutory references are to the Penal Code unless otherwise specified.

KREMER, Presiding Justice.

BENKE, J., concurs.