PEOPLE v. SHAWNo. G041796.

THE PEOPLE, Plaintiff and Respondent,
v.
TREVOR JORDAN SHAW, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.
Filed December 21, 2010.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

FYBEL, J.

INTRODUCTION

A jury found defendant Trevor Jordan Shaw guilty of two counts of forcible sexual penetration by a foreign object, two counts of making criminal threats, one count of first degree burglary, and one count of coercion. The jury also found several enhancement allegations true.

Defendant asserts three contentions of error. First, he argues the trial court erroneously denied his request to instruct the jury on assault with intent to commit forcible sexual penetration by a foreign object as a lesser included offense of forcible sexual penetration by a foreign object. Second, he contends the court erred by admitting a forensic scientist's testimony stating that the semen found in samples taken from the scene of the charged offenses contained defendant's DNA, because other forensic scientists involved in the testing of those samples did not testify at trial, in violation of defendant's right to confrontation under the United States Constitution. Third, he contends the trial court erred by imposing two consecutive 25-year-to-life prison terms under Penal Code former section 667.6, subdivision (d) because the court erroneously believed it had no discretion to impose those terms concurrently. (All further statutory references are to the Penal Code.)

We affirm. Substantial evidence did not support instructing the jury on assault with the intent to commit the offense of forcible sexual penetration with a foreign object. Even if the trial court had erred by failing to give such an instruction, any such error was harmless because the court instructed the jury on attempted forcible sexual penetration by a foreign object and battery as lesser offenses of forcible sexual penetration by a foreign object. As to defendant's contention his right to confrontation was violated, even if the admission of the forensic scientist's testimony was error, for the reasons we discuss post, any such error was harmless beyond a reasonable doubt. We further conclude the trial court did not err by imposing two consecutive 25-year-to-life terms under former section 667.6, subdivision (d).

FACTS

On March 28, 2001, 14-year-old Sara D. spent the night at the apartment of her best friend, 15-year-old Chelsea S. Chelsea shared a bedroom and bunk beds with her five-year-old brother. That night, Chelsea's brother slept in the top bunk bed, and Chelsea and Sara shared the larger bottom bunk bed.

Around 3:00 a.m., Sara woke up to the sound of blinds moving; she saw a hand pushing the bedroom window open. Sara woke up Chelsea and told her someone was at the window; Chelsea looked up and saw a man standing above them. Sara heard the man say, "do not make a sound or I'll blow your head off." He also threatened to shoot them if they did not turn around. Sara described the voice as "firm and demanding." Chelsea described the voice as "[q]uiet but stern." Both Sara and Chelsea decided to do as they were told because they thought the man had a gun and they were scared.

The man told Sara and Chelsea to pull down the blankets; they complied. The man told them to remove different articles of their clothing, piece by piece. After Sara and Chelsea had removed all of their clothing, he told Sara to stand up next to the window with her back to him; he told her not to look at him. She stood on the bottom bunk bed with her back to the window. The man reached his arm and hand through the window, rubbed Sara's vagina, put his finger inside her vagina, and touched her breasts. Sara asked the man why he was "doing this" and he told her to "shut up."

The man then told Sara to lie back down on the bed and directed Chelsea to stand in the same spot and in the same position with her back to the window; Chelsea complied. The man reached through the window with his hand, touched her breasts, and inserted his finger into her vagina several times. Chelsea testified the man licked her lower back and then said, "oh, shit. I'm coming." He let go of Chelsea and said, "if you tell anyone or call the cops, I'll come back and kill you." He then ran away.

Chelsea closed and locked the window and checked on her brother who was awake and hiding under the covers. Chelsea and Sara went into the bathroom and washed themselves. They then sat in the living room, not sure what to do; they did not immediately call the police because they were scared the man would come back and harm them again. They tried unsuccessfully to awaken Chelsea's mother, but she had taken medication and appeared to be "out of it."

While Sara and Chelsea were sitting in the living room, about 20 to 30 minutes after the man left, they heard a loud noise outside. They called 911 and Orange Police Officer David Orona arrived at the apartment around 4:35 a.m. He interviewed Sara and Chelsea separately. He did not locate any possible suspects in the area. A registered nurse conducted sexual assault examinations on Sara and Chelsea. Sara had "general redness" in her genital area. The nurse found bruises in Chelsea's genital area consistent with digital penetration.

Around 4:30 a.m., officer Michael Taylor of the Orange Police Department was dispatched to the apartment to assist Orona. He examined the crime scene and discovered footprints in the grass and a substance, which appeared to be semen, on the stucco just below Chelsea's bedroom window. He collected samples of the substance (the samples) and took them to the police department.

Senior forensic scientist Russell Baldwin testified about the testing of the samples. He testified that one analyst, Bill Dare, determined that the substance contained semen and filled out a request for typing of the semen. Another forensic scientist, Qui Dang, performed the extraction process on the samples. Following the quantification process, Baldwin did the typing of the samples. Once a DNA profile had been created for the samples, the Orange County crime lab checked the 2001 database to determine if there was a link or match to any known person. No data was provided from the database. As the crime lab did not obtain any leads or possible links to any known individuals, the analysis was complete and the data obtained from the samples remained in the database.

In January 2006, the Orange County crime lab was notified that there was a possible link to a person identified in the database. The crime lab obtained a buccal swab from defendant in December 2006. The swab was analyzed in the same way that the samples were analyzed through the extraction, quantification, and typing processes. The DNA profile from the samples and the DNA profile from defendant's buccal swab were "exactly the same."

Defendant lived in Oregon from early 2001 through 2003. He was in the general area of Chelsea's apartment on March 29, 2001, because he and his wife were visiting Disneyland in California that week.

In September 2006, detective Elizabeth Hoffman met with defendant at the Oregon State Penitentiary to speak with him about the March 29, 2001 incident. When asked about the early morning of March 29, defendant told Hoffman that he had been a "Peeping Tom" for so long and in so many towns that it would be difficult to recall the exact incident. Defendant denied touching or threatening anyone.

Defendant testified that he has been a Peeping Tom for about 20 years. He stated he remembered talking to the girls through the open window of Chelsea's apartment and said they were friendly. Defendant said he probably asked one of them to take off her clothes, and the girls giggled or laughed. He did not ask them to stand up or to stand by the window. He denied touching the girls and said they did not run off or get scared. He stated he masturbated at the window. He further stated he "wanted a woman" and "wasn't looking for little girls." He denied ever carrying a weapon and denied threatening to shoot the girls.

Defendant admitted he had pleaded guilty in Oregon to residential burglary, coercion, and two counts of attempted sexual abuse of A.K. A.K. testified at trial that on June 3, 2003, she was awakened at 3:15 a.m. to a male voice that told her not to say anything or he would shoot her; she was 12 years old at the time. She was scared. She testified the man told her to stand up; she complied. The man reached his hand through the window and touched A.K.'s vagina and then her breast "skin to skin." She further stated the man ran away when A.K.'s mother walked into the bedroom and asked A.K. to whom she was talking. Her mother contacted the police. A.K. identified the man at her window in a photographic lineup.

PROCEDURAL BACKGROUND

Defendant was charged in an amended information with (1) two counts of committing forcible sexual penetration by a foreign object in violation of section 289, subdivision (a)(1) (counts 1 and 3); (2) two counts of making criminal threats in violation of section 422 (counts 2 and 4); (3) one count of committing first degree residential burglary in violation of sections 459 and 460, subdivision (a) (count 5); and (4) one count of dissuading a witness by force or threat in violation of section 136.1, subdivision (c)(1) (count 6).

The amended information contained multiple enhancement allegations. As to counts 1 and 3, it alleged defendant committed an offense specified in section 667.61, subdivision (c) under one or more circumstances specified in subdivision (e), namely, during the commission of a first degree residential burglary and against more than one victim. The information further alleged that pursuant to section 667.61, subdivisions (a) and (d), defendant committed counts 1 and 3 during the commission of a burglary with the intent to commit an offense specified in section 667.61, subdivision (c), and counts 1 and 3 "come[] within the meaning of Penal Code section 1203.065[, subdivision] (a)."

As to counts 2, 4, 5, and 6, the amended information alleged that under section 803, subdivision (d), defendant was not within the State of California from June 3, 2003 to September 13, 2006. Also, the information alleged that under section 1203, subdivision (e)(4), defendant "suffered two previous convictions in another state of a public offense which, if committed in California, would have been punishable as a/constitute a felony" including one count of first degree burglary and two counts of attempted sexual abuse. As to count 5, the information alleged that under section 667.5, subdivision (c)(21), defendant's two victims, neither of whom was defendant's accomplice, "w[ere] present in the residence during the commission of the residential burglary."

The jury found defendant guilty on all counts as charged. Aside from the prior conviction allegations, the jury found all the enhancement allegations true.

Defendant was sentenced to a total prison term of 52 years, consisting of two indeterminate consecutive sentences of 25 years to life on counts 1 and 3, and a determinate low term of two years on count 6 to be served before the indeterminate terms. The trial court also imposed concurrent prison terms on counts 2, 4, and 5, which it stayed pursuant to section 654. Defendant appealed.

DISCUSSION

I.

The Trial Court Did Not Err by Denying Defendant's Request to Instruct the Jury on Assault with Intent to Commit Forcible Sexual Penetration by a Foreign object.

Defendant contends assault with intent to commit the offense of forcible sexual penetration by a foreign object is a lesser included offense of forcible sexual penetration by a foreign object and, thus, the trial court erred by denying his request to instruct the jury with the assault instruction accordingly.1 We review the trial court's failure to instruct on a purported lesser included offense de novo. (People v. Verdugo (2010) 50 Cal.4th 263, 293.)

"`A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "`that is, evidence that a reasonable jury could find persuasive'" [citation], which, if accepted, "`would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].'" (People v. Licas (2007) 41 Cal.4th 362, 366; see People v. Verdugo, supra, 50 Cal.4th at p. 293 ["`This substantial evidence requirement is not satisfied by "`any evidence . . . no matter how weak,'" but rather by evidence from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed"'"].)

Here, substantial evidence did not support giving an instruction of assault with intent to commit forcible sexual penetration by a foreign object. Sara and Chelsea unequivocally testified that they were digitally penetrated—each testifying that she felt the assailant insert his finger into her vagina. No evidence was elicited suggesting either Sara or Chelsea was confused or failed to accurately perceive what happened to her. Defendant unequivocally testified that he did not touch Sara or Chelsea at all. As there is no evidence defendant touched the girls with the intent to penetrate their vaginas but failed to accomplish his objective, an instruction on attempting to do so was without evidentiary support.

Even if substantial evidence had supported giving such an instruction, the trial court's refusal to do so did not prejudice defendant in light of the court's instruction on two other lesser offenses: attempt to commit sexual penetration and battery. Had the jury believed defendant failed to actually accomplish penetration of either Sara's or Chelsea's vagina, the jury would have found defendant guilty of either lesser offense accordingly. (See People v. Verdugo, supra, 50 Cal.4th at p. 295 [in a first degree murder case, the Supreme Court stated, "[m]oreover, the jury was instructed on the lesser included offense of second degree murder, which satisfied the due process requirement that an intermediate choice be given to the jury when supported by the evidence"].) As stated by the Supreme Court, "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.)

We find no error.

II.

Even Assuming the Admission of Baldwin's Testimony Regarding DNA Evidence Violated Defendant's Right to Confrontation, Any Such Error Was Harmless.

Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), defendant contends his right to confrontation under the United States Constitution was violated "by admission of testimony based on DNA reports prepared by two non-testifying declarants." Defendant contends Baldwin testified about the results of the DNA analysis of the evidence found on March 29, 2001 on the windowsill of Chelsea's bedroom. Although Baldwin performed the last part of the DNA analysis, two other analysts, who did not testify at trial, performed the other parts of the DNA analysis. For the reasons we will explain, we do not need to determine whether the admission of Baldwin's testimony constituted error under Melendez-Diaz because any such error was harmless beyond a reasonable doubt.

A.

The Confrontation Clause, People v. Geier (2007) 41 Cal.4th 555, and Melendez-Diaz, supra, 557 U.S. __ [129 S.Ct. 2527].

In all criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him . . . ." (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) In Crawford, the United States Supreme Court held the confrontation clause prohibits admission of out-of-court statements that are testimonial in nature unless the declarant is unavailable and the accused has had a prior opportunity for cross-examination. (Crawford, supra, at pp. 68-69.) The Supreme Court held a wife's out-of-court statement to a law enforcement officer made during a custodial interrogation about a knife fight, in which both the husband and wife were suspects, could not be used against the husband in his trial for attempted murder. (Id. at pp. 38-39, 68-69.)

The Crawford court stated: "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law—as does [Ohio v.] Roberts [(1980) 448 U.S. 56], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at p. 68.) Although the court left "for another day" a comprehensive definition of "`testimonial'" (ibid.), the court did provide these illustrations of statements that could be considered testimonial: (1) "`ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,'" and (2) "`statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" (id. at pp. 51-52).

In People v. Geier (2007) 41 Cal.4th 555, 605-607 (Geier ), a case which bears some similarity to the instant case, the California Supreme Court concluded that the admission of a DNA expert's opinion which relied on a DNA testing report and notes, prepared by an analyst who did not testify at trial and thus was not subjected to cross-examination, did not violate the confrontation clause. The Supreme Court stated a statement is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Id. at p. 605.)

The Supreme Court concluded the analyst's report and notes did not meet the second criterion because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Geier, supra, 41 Cal.4th at p. 605.) The court explained that the analyst's report and notes "were generated as part of a standardized scientific protocol that she conducted pursuant to her employment." (Id. at p. 607.) As the analyst's notes "were made `during a routine, non-adversarial process meant to ensure accurate analysis,'" the analyst did not "`bear witness'" against the defendant. (Ibid.) The court further stated, "[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory. `Instead, they are neutral, having the power to exonerate as well as convict.'" (Ibid.) The court further noted, "the accusatory opinions in this case—that defendant's DNA matched that taken from the victim's vagina and that such a result was very unlikely unless defendant was the donor—were reached and conveyed not through the nontestifying technician's laboratory notes and report, but by the testifying [expert] witness." (Ibid.)

After Geier was decided on July 2, 2007, the United States Supreme Court held in Melendez-Diaz, supra, 557 U.S. at page __ [129 S.Ct. at pages 2531-2532] that sworn "`certificates of analysis,'" which showed the results of the forensic analysis performed on substances that had been seized by police officers, were testimonial within the meaning of the confrontation clause. As observed in People v. Vargas (2009) 178 Cal.App.4th 647, 659: "The reasoning of the majority in Melendez-Diaz is inconsistent with the primary rationale relied upon by the California Supreme Court in Geier to uphold the introduction of the DNA report in that case—that because a scientific observation `constitute[s] a contemporaneous recordation of observable events rather than the documentation of past events,' it is analogous to `the declarant reporting an emergency . . . and therefore is not testimonial."

California appellate courts have since disagreed about whether Geier remains good law after the Melendez-Diaz decision. This issue is currently pending before the California Supreme Court.2

B.

Any Error in Admitting Baldwin's Testimony Was Harmless.

We do not need to determine whether the admission of Baldwin's testimony violated defendant's right to confrontation under Melendez-Diaz, supra, 557 U.S. __ [129 S.Ct. 2527] because even if it had, any such error was harmless. Confrontation clause violations are subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Lewis (2008) 43 Cal.4th 415, 461.) This standard provides "an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citations.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) "These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. [Citations.]" (Id. at p. 684.)

Baldwin's testimony regarding the DNA evidence was not at all relevant in proving whether the charged crimes had occurred. It was solely relevant to prove the identity of the man who appeared outside the window of Chelsea's bedroom on March 29, 2001. Defendant admitted at trial, however, that in the early morning of March 29, he was the man who stood outside Chelsea's bedroom window where he contacted Sara and Chelsea, and masturbated. (Defendant's wife testified that defendant was in Orange County that day because they were on vacation.) This is not a case where the results of DNA analysis proved an element of a crime because the defendant's DNA profile matched that of a sample taken from the victim's body. Thus, even if Baldwin's testimony had been erroneously admitted, any such error was harmless beyond a reasonable doubt in light of defendant's admission that he was at the scene of the charged offenses that morning.

In his opening brief, defendant argues that had Baldwin's testimony and "the cold hit results" not been admitted, defendant would not have testified. Defendant further argues, "[a]s the only evidence identifying [defendant] as the perpetrator was his testimony and the DNA test results, both of which would not have been heard by the jury, it is clear that no rational jury would have convicted [defendant]." Defendant does not offer any legal authority supporting his argument that we should assume, in conducting our harmless error analysis, that he would not have testified. We have not found any such legal authority in this context either.

People v. Bradford (2008) 169 Cal.App.4th 843, however, provides some guidance. In that case, the appellate court concluded the trial court erred by admitting the defendant's confession. (Id. at p. 855.) The Attorney General argued the error was not prejudicial because "the confession would have been admitted in any event to impeach defendant's testimony." (Ibid.) The appellate court stated, "[w]hether defendant would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties' tactical choices. Because it is impossible to determine what might have happened had the trial proceeded differently, we conclude that prejudice should be evaluated on the basis of the evidence actually presented, while excluding the improperly admitted confession. On this basis, as noted above, we cannot find the confession's admission to have been harmless beyond a reasonable doubt." (Id. at pp. 855-856.)

Similarly, here, we evaluate whether the admission of Baldwin's testimony constituted prejudicial error based on the evidence presented at trial, which includes defendant's testimony. Based on the record, as discussed ante, the admission of Baldwin's DNA testimony did not constitute prejudicial error.

III.

The Trial Court Did Not Err by Applying the Mandatory Consecutive Sentencing Provisions of Former Section 667.6, Subdivision (d) TO DEFENDANT'S INDETERMINATE SENTENCES IMPOSED UNDER FORMER SECTION 667.61.

Citing People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262, defendant contends, "[t]he trial court abused its discretion when it imposed consecutive sentences under the misapprehension that the One Strike crimes (Pen. Code, § 667.61) had to be sentenced consecutively under Penal Code section 667.6." Citing People v. Jackson (1998) 66 Cal.App.4th 182 and People v. Chan (2005) 128 Cal.App.4th 408, defendant acknowledges, "[o]ther courts have found Penal Code section 667.6, subdivision (d) applicable to indeterminate One Strike terms," but argues "the rules of statutory construction prove those latter cases are wrong."

The version of section 667.61 in effect at the time the charged offenses occurred in 2001 (former section 667.61) provided at subdivision (a): "A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j)." Subdivision (g) of former section 667.61 provided: "The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable."

Here, defendant was found guilty of two counts of forcible sexual penetration by a foreign object, which is an offense listed in former section 667.61, subdivision (c)(5). The jury also found true the enhancement allegations that defendant committed those offenses during the commission of a burglary, with the intent to commit forcible sexual penetration by a foreign object within the meaning of former section 667.61, subdivision (d)(4). The jury further found that in the commission of counts 1 and 3, defendant committed first degree burglary (former § 667.61, subd. (e)(2)), and committed counts 1 and 3 against more than one victim (former § 667.61, subd. (e)(5)).

The version of section 667.6 in effect at the time the charged offenses occurred (former section 667.6) provided at subdivision (d): "A full, separate, and consecutive term shall be served for each violation of . . . subdivision (a) of Section 289 [forcible sexual penetration by a foreign object] . . . if the crimes involve separate victims or involve the same victim on separate occasions." (Italics added.) Former section 667.6, subdivision (d) also provided: "The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment."

In People v. Jackson, supra, 66 Cal.App.4th at page 190, the trial court sentenced the defendant to, inter alia, two terms of 25 years to life for the forcible oral copulation of Jane Doe 1 and Jane Doe 2. The trial court concluded that section 667.6, subdivision (d) did not apply to indeterminate sentencing under section 667.61 and imposed concurrent terms. (People v. Jackson, supra, at p. 190.) The appellate court disagreed with the trial court's statutory interpretation and modified the judgment to provide for consecutive life sentences as to those offenses. (Id. at pp. 190-194.) The appellate court reasoned: "Section 667.6, subdivision (d) mandates consecutive sentencing on its face and as judicially interpreted. [Citation.] In 1979, when section 667.6, subdivision (d) was enacted, each of the offenses which were made subject to mandatory consecutive sentencing was punishable by a term of years. However, in 1994, the Legislature enacted section 667.61 which is commonly known as the one strike law. [Citation.] When a defendant has been convicted of a specified sexual offense under specified aggravating circumstances, the trial court is required to sentence him or her to a lengthy indeterminate term depending on the circumstances. Thus, the Legislature authorized life terms in section 667.61 for seven offenses listed in section 667.6, subdivision (d), when those offenses involved specified aggravating circumstances. [Citation.] At issue then is whether section 667.6 applies to indeterminate terms imposed under section 667.61." (Id. at pp. 191-192, fn. omitted.)

The court in People v. Jackson, supra, 66 Cal.App.4th at page 192, further reasoned: "The language of section 667.6, subdivision (d) is quite broad and inclusive and does not distinguish between consecutive service of determinate and indeterminate terms. Had the Legislature chosen to make that distinction, it could have added explicit language to section 667.6, subdivision (d). Moreover, `[t]he Legislature "is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof."' [Citation.] Accordingly, since no amendment to section 667.6 was made when the one strike law was enacted, there is no basis for the inference drawn by the trial court that the Legislature intended to distinguish between determinate and indeterminate terms in section 667.6."

In People v. Chan, supra, 128 Cal.App.4th at page 424, the appellate court followed "the consecutive sentence analysis" of the appellate court in People v. Jackson, noting that "section 667.6, subdivision (d) required consecutive indeterminate sentences be imposed."

We agree with People v. Jackson, supra, 66 Cal.App.4th at page 192, and People v. Chan, supra, 128 Cal.App.4th at page 424, that former section 667.6, subdivision (d) applied to indeterminate as well as determinate sentences for violations of forcible sexual penetration by a foreign object, if the crimes "involve separate victims or involve the same victim on separate occasions." Here, because the jury found counts 1 and 3 involved separate victims, the trial court was required to impose consecutive sentences.

People v. Rodriguez, supra, 130 Cal.App.4th 1257, is distinguishable because, in that case, there was no finding that the qualifying sexual offenses "involve[d] separate victims or involve[d] the same victim on separate occasions" within the meaning of former section 667.6, subdivision (d).

We find no error.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

FootNotes


1. CALCRIM No. 890 states that to prove assault with intent to commit forcible sexual penetration by a foreign object, the prosecution must prove: "1. The defendant did an act that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, (he/she) had the present ability to apply force to a person; [¶] [AND] [¶] 5. When the defendant acted, (he/she) intended to commit [forcible sexual penetration by a foreign object]."
2. See, e.g., People v. Rutterschmidt (2009) 176 Cal.App.4th 1047, review granted December 2, 2009, S176123; People v. Gutierrez (2009) 177 Cal.App.4th 654, review granted December 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388, review granted December 2, 2009, S176886; People v. Lopez (2009) 177 Cal.App.4th 202, review granted December 2, 2009, S177046; People v. Benitez (2010) 182 Cal.App.4th 194, review granted May 12, 2010, S181137; People v. Bowman (2010) 182 Cal.App.4th 1616, review granted June 9, 2010, S182172.

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