APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed in part with modifications, reversed in part, and remanded. (Los Angeles County Super. Ct. No. NA068344).
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Raymond Ulloa appeals from a judgment of conviction of one count of kidnapping (Pen. Code, § 207, subd. (a)),*fn2 two counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), one count of kidnapping to commit rape (§ 209, subd. (b)(1)), one count of kidnapping for carjacking (§ 209.5, subd. (a)), one count of first degree robbery (§ 211), three counts of second degree robbery (§ 211), one count of assault with a deadly weapon (§ 245, subd. (a)(1)), three counts of making criminal threats (§ 422), three counts of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), five counts of forcible oral copulation (§ 288a, subd. (c)(2)), and three counts of forcible rape (§ 261, subd. (a)(2)).
Appellant argues that the trial court committed reversible error by admitting irrelevant, unfairly prejudicial evidence, and that the prosecutor engaged in prejudicial misconduct in her closing argument. He also claims sentencing error.
In the published portion of this opinion, we hold that section 1192.7, subdivision (c)(28), which appears within the definition of "serious felony," does not include a misdemeanor punishable as a felony pursuant to section 186.22, subdivision (d). For that reason, we conclude that the trial court's finding that appellant's prior conviction was a serious felony is not supported by substantial evidence. In the unpublished portion of this opinion, we conclude that the sentence on count 3 must be stayed, pursuant to section 654, and that errors on the abstract of judgment must be corrected. Accordingly, the sentencing portion of the judgment is reversed and the matter remanded for resentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Appellant's convictions arise out of two separate incidents, which occurred on December 1, 2005, and December 11, 2005, respectively.
On December 1, 2005, at about 5:30 p.m., Christopher Caserma was sitting in his Ford Explorer in Joan Milke Flores Park in San Pedro. Caserma's cousin, Michael McConnell, and friend, Brian Sousa, also were in the vehicle. The men were sitting in the parked vehicle in order to smoke marijuana. Caserma, who was in the driver's seat with the window open, noticed appellant and another man sitting in a gray Honda, staring at them. Appellant approached Caserma's side of the Explorer. Caserma noticed he had a gun tucked into his pants. Appellant ordered Caserma out of the car, held a broken seat lever to his throat, and told him to open the hatchback door of the Explorer. Appellant also demanded that all three occupants of the vehicle hand over their wallets.
After finding a bank card in Sousa's wallet, appellant struck Sousa in the face and forced him out of Caserma's Explorer and into the Honda. Appellant sat in the Explorer and ordered Caserma to follow the Honda, driven by appellant's companion. They drove to a Bank of America branch. Appellant said to Caserma and McConnell, "One of you has gotta die. You better hope your friend comes through with the money." At the bank's automated teller machine (ATM), Sousa withdrew $100 or $150. He gave the money to the man driving the Honda.
After Sousa got back in the Honda, the group drove to Friendship Park. Appellant took Caserma's keys and the victims' shoes and threw them down a hill. Appellant said, ""We are gonna let you guys go. I don't want to hear about this in the paper. We got your I.D.'s.'" He also said, "I know where you live. I know where your family lives." Appellant then wiped down Caserma's Explorer with a shirt and left in the Honda with his companion. They took several items, including Caserma's car stereo and McConnell's backpack. Caserma, Sousa, and McConnell ran into a residential neighborhood, because they feared appellant would return to the park. They called Caserma's stepfather, who called the police.
On December 11, 2005, at about 10:30 p.m., Nicole B. and Eric P. were in Nicole's car, parked at Point Fermin in San Pedro.*fn3 They were in the back seat, and Nicole was partially unclothed. Appellant and a second man approached the car- appellant on the driver's side and the other man on the passenger's side-and banged on the windows. Three or four additional men, who appeared to be part of appellant's group, were present as well. The men ordered Nicole to open the door, and she complied because she was afraid. After the men demanded money and valuables, Nicole gave them eight dollars and Eric gave them his diamond earrings. Although Nicole did not see a weapon, she thought appellant might have a gun because he kept his hand in his jacket pocket. Appellant ordered Nicole to orally copulate Eric, which she did, then an unidentified member of the group ordered her to orally copulate the man standing outside the passenger's side of the car, which she did as well. Appellant and the group of men then left in a large truck, apparently because cars were driving up and down the street.
Nicole and Eric did not drive away immediately, because Eric was very angry and got out of the car. A few minutes later, as Nicole was putting on her shoes in order to drive, appellant banged on the driver's side window again. When Nicole opened the door, appellant demanded her keys. When she refused, appellant called her a "bitch" and punched her in the jaw. Appellant ordered Nicole to get in the back seat, and he sat in the driver's seat. Eric was in the front passenger's seat and appellant's companion (identified at trial as Steven) sat in the back seat. Appellant drove Nicole's car to an area unfamiliar to Nicole and stopped in an alley. There, he ordered Nicole to switch seats with Eric, and forced Nicole to orally copulate him twice. Appellant then forced Nicole to engage in intercourse with him.
Appellant next drove to a park. When Nicole said she needed to use the restroom, appellant said he would take her, then dragged her out of the car by her arm. Once they had walked away from the car, appellant refused to take Nicole to the restroom and forced her to orally copulate him again. He then forced her to have intercourse again. She told him she felt sick, but he told her to "keep going." Afterward, he forced her to orally copulate him again. Appellant's companion, Steven, approached as appellant was forcing Nicole to have intercourse for a third time. Steven told appellant to stop, but he did not. After appellant completed the act, Steven told appellant "to stop and think if he would do this to his sisters." Appellant replied, "You gonna take that bitch over me." Steven then returned to Nicole's car, where he had left Eric, and he drove away. Appellant again forced Nicole to orally copulate him.
Shortly thereafter, Steven returned in Nicole's car with Eric. He again joined Nicole and appellant in the park, apparently leaving Eric in the car. Appellant stood up and began walking toward the car. As he did so, Steven helped Nicole run out of the park. Appellant may have tried to chase them in Nicole's car, but Nicole and Steven evaded him. Steven took Nicole to an apartment where he allowed her to use a phone to call a friend to pick her up. Before Nicole's friend arrived, Steven told Nicole that they would kill her if she called the police. When Nicole's friend picked her up, Nicole told her she had been raped. Her friend took her to a hospital, where police were called and a sexual assault examination was performed.
At about 12:55 a.m., on the morning of December 12, 2005, Los Angeles police officer Alex Rojas began to follow a vehicle that did not have its headlights illuminated and matched a description he had heard on a radio call. When the officer activated his lights and siren, the suspect vehicle accelerated, then slowed, and someone jumped out of the driver's side. Other police officers near the scene quickly apprehended appellant, whom Rojas recognized as the man who had jumped out of the vehicle. Officers found Eric waiting next to the vehicle, which had slowed to a stop. He appeared frightened.
The district attorney originally filed the charges connected to the December 1 and December 11 incidents separately. Different co-defendants were charged in connection with the two incidents. For reasons that are neither clear from the record nor relevant to this appeal, the former co-defendants in each matter eventually were dealt with separately. Thereafter, the two cases against defendant were consolidated. As consolidated, the charges against appellant were three counts of kidnapping to commit specified crimes (counts 1, 2, 21), five counts of robbery (counts 3, 5, 6, 17, 18), one count of kidnapping (count 4), one count of assault with a deadly weapon (count 7), three counts of making a criminal threat (counts 8, 9, 10), three counts of dissuading a witness by force or threat (counts 11, 12, 13), one count of possession of a firearm by a felon (count 14), two counts of kidnapping in commission of a carjacking (counts 19, 20), six counts of forcible oral copulation (counts 22, 23, 24, 25, 26, 27), and three counts of forcible rape (counts 28, 29, 30).*fn4
The case was tried to a jury. Caserma and Nicole testified at trial. McConnell and Eric were served with subpoenas, but failed to appear. Sousa testified, but was a reluctant witness and denied being able to identify appellant.
The jury acquitted appellant of count 14, possession of a firearm by a felon; count 17, robbery of Eric; count 19, kidnapping of Eric for carjacking; and count 22, one of the forcible oral copulation counts. Appellant was convicted of all other counts. The jury found the robbery of Sousa, count 3, to be of the first degree. The jury found not true the personal use of a firearm allegation in connection with counts 1 through 6, and it found true the special circumstance of kidnapping in connection with counts 23 through 30. In a bifurcated proceeding, the court found true allegations that appellant had suffered a prior serious felony conviction and had served prior prison terms.
Because of the sentencing issues raised by appellant, we set forth his sentence in detail. The trial court imposed the following consecutive terms:
Count 4 (kidnapping of McConnell): high term of eight years, doubled to 16 years pursuant to the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12);*fn5
Count 3 (first degree robbery of Sousa): 16 months (one-third of the middle term), doubled to 32 months;
Count 5 (second degree robbery of Caserma): one year (one-third of the middle term), doubled to two years;
Count 6 (second degree robbery of McConnell): one year (one-third of the middle term), doubled to two years;
Count 7 (assault with a deadly weapon on Caserma): one year (one-third of the middle term), doubled to two years;
Count 8 (criminal threats against Sousa): 8 months (one-third of the middle term), doubled to 16 months;
Count 9 (criminal threats against Caserma): 8 months (one-third of the middle term), doubled to 16 months;
Count 10 (criminal threats against McConnell): 8 months (one-third of the middle term), doubled to 16 months;
Count 11 (dissuading a witness by force or threat on Sousa): one year (one-third of the middle term), doubled to two years;
Count 12 (dissuading a witness by force or threat on Caserma): one year (one-third of the middle term), doubled to two years;
Count 13 (dissuading a witness by force or threat on McConnell): one year (one-third of the middle term), doubled to two years;
Count 18 (second degree robbery of Nicole): one year (one-third of the middle term), doubled to two years;
Count 23 (forcible oral copulation of Nicole): high term of eight years, doubled to 16 years;
Count 24 (forcible oral copulation of Nicole): high term of eight years, doubled to 16 years;
Count 25 (forcible oral copulation of Nicole): high term of eight years, doubled to 16 years;
Count 26 (forcible oral copulation of Nicole): high term of eight years, doubled to 16 years;
Count 27 (forcible oral copulation of Nicole): high term of eight years, ...