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The People v. Ricardo Herrera Rangel

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICARDO HERRERA RANGEL, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Nicholson, Acting P.J.

P. v. Rangel CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

San Joaquin

A jury convicted defendant Ricardo Herrera Rangel of aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)),*fn1 rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), and assault with the intent to commit rape (§ 220). The jury also determined as enhancements that defendant, in order to commit rape and penetration by a foreign object, moved the victim in a manner which substantially increased the risk of harm (§ 667.61, subd. (d)(2)), and that defendant kidnapped the victim for the purpose of committing rape, oral copulation, and penetration by a foreign object. (§ 667.8, subd. (a).) The jury acquitted defendant of one count of attempted robbery (§§ 664, 211), and found not true an allegation that defendant moved the victim for the purpose of committing oral copulation.

The trial court sentenced defendant to a state prison term in the aggregate of 68 years to life, calculated as follows: the middle term of six years for the rape plus 25 years to life for the associated movement enhancement; the middle term of six years for the oral copulation conviction; and the middle term of six years on the foreign object penetration conviction plus 25 years to life for the associated movement enhancement.

Pursuant to section 654, the trial court stayed the following prison terms: a term of life with the possibility of parole for the aggravated kidnapping conviction; a four-year term on the assault conviction; and three separate nine-year terms for the kidnapping enhancements.*fn2

Defendant appeals and alleges the following errors:

1. The evidence was insufficient to sustain the conviction for aggravated kidnapping and the true findings on the movement and kidnapping enhancements, as the evidence did not show that defendant moved the victim more than an incidental distance or that he exposed her to an increased risk of harm;

2. The trial court erred when it excluded evidence of the victim's prior sexual conduct that was to show an alternate cause of a physical injury she suffered;

3. The trial court erred when it excluded evidence of a posting on the victim's Internet MySpace page after the attack that was to show the victim did not have a state of mind of someone who had recently been raped;

4. The trial court erred by not instructing on the lesser included offense of simple kidnapping where the defendant testified he and the victim had engaged in consensual sex; and

5. The trial court erred in sentencing defendant to full, separate and consecutive prison terms on the rape, oral copulation, and penetration convictions, as those offenses did not occur on separate occasions within the meaning of section 667.6, subdivision (d).

Finding no prejudicial error on any of defendant's grounds for appeal, we affirm the judgment.

FACTS

19-year-old Mallory Doe was walking to work along South Main Street in Manteca about 7:00 a.m. on a cold December morning when she heard someone running up from behind her. Immediately someone wrapped their arms around her neck. Mallory tried to scream, but her assailant punched her in the lower lip of her mouth. The assailant, a male, told her not to say anything or else she would be hurt more.

The assailant put Mallory into a headlock and pulled her into an alley off the main road and behind a Social Security Administration building. He forced Mallory to stand in front of him in a dirt area with her back towards him and facing a brick wall and some bushes. He said if Mallory would keep quiet, "this would benefit" her.

The assailant stuck his right hand underneath Mallory's skirt, nylons, and underwear, and he inserted his fingers inside her vagina. As he did this, he asked Mallory how old she was and if she had a boyfriend. Mallory replied she was 19 years old and she had a boyfriend.

The assailant asked Mallory if she "liked to fuck." Mallory said she did not because she was undergoing treatment for the early stages of cervical cancer, and if the assailant did anything to her it would hurt. He told her to quit whining or else he would hurt her more.

Mallory then heard the assailant unzip his pants. He was still standing behind her with one hand around her neck so she could not move. He told her to take her left hand and rub his penis to get it hard. She did so. He told her if she hurt him, it would make things worse. He also said she had to get him hard or else she would have to give him "head" (oral copulation).

Mallory told the assailant she did not want to rub his penis. He told her to spit in her hand and keep rubbing. She continued to rub his penis, and then he told her she would have to orally copulate him for four minutes. When Mallory protested, he dropped the time to three minutes. She told him she did not want to do it, and he reduced the time to 30 seconds.

The assailant told Mallory to turn around. Before she could completely turn towards him, he pulled the collar of his jacket up to cover his mouth and part of his nose. Mallory could discern the assailant was a Hispanic or Latino male, about five feet 10 inches tall, with short black hair, buzzed on the sides but longer in the middle, and slicked back. He wore a dark-colored nylon track jacket, dark-colored pants, a belt, and light-colored sneakers. Mallory did not know the assailant and had never seen or met him in her life.

The assailant told Mallory to get down, and that she had better not hurt him or he would make things worse. Mallory kneeled down, and the assailant put his penis in her mouth. He kept a hand on the back of Mallory's head so she could not pull away. Mallory orally copulated him for about a minute until he told her to stop.

The assailant told Mallory to stand up. She did and turned back to face the wall. He asked her if she liked it "doggy style," and she said no. He stuck his hand down her skirt again and put his fingers inside her vagina. Then he put his hand underneath her shirt and bra and fondled her breast.

He then pulled down Mallory's skirt, nylons and underwear to her thighs, put his hand between Mallory's legs, and told Mallory to spread them. Mallory was scared, so she complied. The assailant pushed his pelvis into Mallory and attempted to insert his penis into her vagina. He inserted his penis part way, kept pushing for a little while, and then withdrew. Mallory was not sure if he ejaculated. Mallory asked if she could pull her skirt up, and he agreed.

The assailant asked Mallory if she had any money. She said she did not. The assailant said she had better not be lying. To prove she was not, Mallory said she would reach into her purse, grab her wallet, and show him she did not have any money. She did so, and then put the wallet back into her purse.

The assailant told Mallory to turn to the left. She did, and she heard him run away. She counted for 20 seconds, and then looked over to see if he was gone. She turned around, ran to the side of the Social Security office, and saw a woman there using her cell phone. Mallory told the woman she had just been raped. The woman, Lupita Torres, a Social Security Administration employee, called police. Torres testified that Mallory was crying, nervous, and "completely distraught." Torres also testified that a light in the alley was not working that morning, and the alley was dark.

Mallory gave police a description of her assailant. The description was broadcast to other patrol units in the area. Moments later, Manteca Police Officer Robert Armosino located a person matching the description of Mallory's assailant about one-half mile from the crime scene. The suspect was defendant. He was wearing a black sleeveless shirt with no jacket even though it was only 40 degrees outside.

Police transported Mallory to where defendant was being held. Mallory identified defendant as her assailant. Although he was not wearing a jacket, he had the same looking pants and shoes, and his hair matched what she had seen. Defendant was arrested.

Police recovered a black jacket hanging on the side of a dumpster about two blocks from where defendant was detained. When given the jacket, Officer Armosino noticed the jacket smelled of the same cologne that he had smelled on defendant and that was in a bottle of cologne he had found on defendant's possession.

At the crime scene, police noticed some shoe impressions in the area where Mallory had said the attack occurred. Manteca Police Officer Matthew Simpson visually compared the impressions with defendant's shoes. The impressions appeared to be the same pattern as those on the bottom of defendant's shoes. After examining a cast of the shoe impressions with defendant's shoes, a Department of Justice criminalist later concluded she could not exclude the possibility that the impressions at the crime scene were made by defendant's left shoe.

Mallory had told Manteca Police Detective Steve Beerman the distance defendant had moved her from the sidewalk to the alley behind the Social Security Administration building was a couple of feet. She testified at trial that she was moved approximately 10 feet. Investigating officers, however, determined the distance from the sidewalk to the crime scene where the shoe impressions were found was at least 53 feet.

Investigating police at the scene observed surveillance cameras mounted on the Social Security Administration building. One was on the back of the building facing the alley, and another was on the side of the building. However, no images of the assault were captured by the cameras on videotape.

A medical examination of Mallory disclosed a three-millimeter long mucosal tear of Mallory's posterior fourchette, i.e., "the rear most portion of the outer portion of the vagina." The examining physician, Dr. Douglas DeMartinis, stated the tear implied that some degree of force was applied to that particular area of the body. In Dr. DeMartinis's experience, the posterior fourchette was a common area to see injuries in women who had been sexually assaulted. He also agreed it was possible for a woman to have such a tear after consensual sexual intercourse, but he would not expect to see one after consensual intercourse.

Dr. DeMartinis did not notice any injuries to Mallory's mouth. However, prior to Dr. DeMartinis's examination, Detective Beerman had noticed the lower left side of Mallory's lip was swollen. Detective Beerman photographed the injury.

DNA analysis was performed on samples taken from both Mallory and defendant. Semen found on Mallory's underwear and on her vaginal swabs matched defendant's DNA profile. DNA from defendant's penile swab matched Mallory's DNA profile. Mallory's boyfriend was eliminated as a possible donor of the semen found on Mallory's underwear and vaginal swabs.

On the same day as the assault, Detective Beerman interviewed defendant at the police station. Defendant initially claimed he had been out that morning looking for his girlfriend's lost necklace when the police stopped him. He denied going to the shopping center where the Social Security Administration office was located. He also claimed he did not know, and had never met, the victim.

Later in the interview, defendant changed his story. He said he was very angry with his girlfriend that morning when he crossed paths with the victim. He grabbed the victim from behind with his arm around her neck, told her he was not going to hurt her, and moved her off the sidewalk a couple of yards. Defendant did not remember anything that happened after he moved the victim. He denied using drugs that day or the day before. He did not know the victim's name.

During the interview, defendant denied wearing a jacket that morning. However, when he was shown the jacket that was recovered from the dumpster near the crime scene, defendant admitted the jacket was his. He claimed he had not seen it since the night before.

During the interview, defendant wrote a letter of apology to Mallory. The letter stated: "I know that I'm the last person you want to hear from right now, but from the bottom of my heart I am so very sorry for everything that I put you through. This was the last thing on my mind that I would have ever done to anybody. You don't deserve this, and I honestly hope the best for you. I'm sorry. [¶] I messed up your X-Mas and now I messed up mine, and I will not be able to see my child who I haven't seen in a while. That breaks my heart. I know I deserve everything or charge you have against me [sic]. I just wanted to apologize to you for everything. I'm sorry. [¶] Wish you the best. You deserve it. Ricardo Rangel."

Defense

Defendant's defense at trial was consent. His testimony contradicted much of what he had told Detective Beerman. Defendant testified he had known Mallory for about a month and a half. He claimed he and Mallory were together the night before the alleged attack and arranged to meet the next morning before she started work. Mallory asked defendant to bring some methamphetamine with him. She would pay him $10 for it.

The next day, they met in front of the house directly north of the Social Security Administration building. Because people were walking on the sidewalk, they went into a nearby alley. He did not grab Mallory or forcibly move her into the alley. Defendant noticed a bump on Mallory's lip, and they talked about it. Then they began consensually engaging in sexual acts with each other. Defendant tried to have intercourse with Mallory, but he could not get an erection because he was on drugs. He did not believe he ever ejaculated.

While defendant was trying to have sex with Mallory, she recognized someone passing by, so they stopped. Defendant gave Mallory the methamphetamine and Mallory gave him $10. Defendant placed the money in his jacket pocket and left. He discarded the jacket on the side of a dumpster because it was old and torn, and because he was afraid his girlfriend would smell another woman's scent on the jacket.

Defendant denied speaking truthfully with Detective Beerman. He lied because the police refused to let him make a phone call or have a drink of water. He did not mention having consensual sex with Mallory to Detective Beerman because he was trying to protect her. She was a nice person, and he feared her boyfriend would beat her up for what they did. He also expected Mallory at some point to come forward and tell the truth.

DISCUSSION

I

Sufficiency of Evidence of Aggravated Kidnapping and Kidnapping Enhancements

Defendant contends there is insufficient evidence to support his conviction of aggravated kidnapping and the kidnapping and movement enhancements. He claims the evidence does not support a finding that he moved the victim in a manner that was not merely incidental to the rape, or that the movement increased the risk of harm to the victim above that present in the rape.

We disagree. Substantial evidence in the record shows defendant moved the victim in a manner that was not incidental to the rape, and that the movement increased the risk of harm to the victim.

Aggravated kidnapping occurs when a person "kidnaps or carries away any individual to commit [among other crimes] rape . . . ." (§ 209, subd. (b)(1).) The kidnapping is aggravated only "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (§ 209, subd. (b)(2).)

The asportation element thus "involves two prongs. First, the defendant must move the victim and this asportation must not be 'merely incidental to the [rape].' (People v. Martinez (1999) 20 Cal.4th 225, 232; § 209, subd. (b)(2).) Second, the movement must increase 'the risk of harm to the victim over and above that necessarily present in the [rape].' (People v. Martinez, supra, at p. 232.) The two are not mutually exclusive, they are interrelated. (People v. Rayford (1994) 9 Cal.4th 1, 12.)

"For the first prong, the jury considers the distance the defendant moved the victim and the 'scope and nature' of the movement. (People v. Rayford, supra, 9 Cal.4th at p. 12; People v. Jones (1999) 75 Cal.App.4th 616, 628-629.) For the second, it considers whether the movement gave the defendant 'the decreased likelihood of detection' and an 'enhanced opportunity to commit additional crimes.' (People v. Rayford, supra, 9 Cal.4th at p. 13.)" (People v. Shadden (2001) 93 Cal.App.4th 164, 168.)

Substantial evidence in the record demonstrates defendant's movement of Mallory was neither incidental to the rape nor insubstantial. Defendant grabbed Mallory from behind and forcibly moved her from the sidewalk of a city street to an alley behind a building, a distance according to police of 53 feet. The movement was not incidental to rape, as rape "does not necessarily require movement to complete the crime." (People v. Salazar (1995) 33 Cal.App.4th 341, 348, fn. 8.) "Where a defendant drags a victim to another place, and then attempts a rape, the jury may reasonably infer that the movement was neither part of nor necessary to the rape. [Citations.]" (People v. Shadden, supra, 93 Cal.App.4th at p. 169.) The jury could infer the movement was not incidental because defendant began the sexual attack only after he moved Mallory.

The evidence also shows the movement was substantial. "Where movement changes a victim's environment, it does not have to be great in distance to be substantial." (People v. Shadden, supra, 93 Cal.App.4th at p. 169.) Defendant took Mallory from a city street near businesses to an alley that was much more isolated and secluded. The alley was bordered by the back of the Social Security Administration building on one side and a brick sound wall on the other. Trees and shrubs in a planter area alongside the sound wall provided concealment and seclusion. This new environment increased the risk of harm, decreased the likelihood of detection, and enhanced defendant's opportunity to commit other crimes. The evidence thus sufficiently supports the asportation element of the aggravated kidnapping conviction and the related kidnapping and movement enhancements.

Defendant claims the evidence is insufficient and shows the movement was merely incidental and insubstantial. He asserts the evidence shows the movement was incidental because Mallory told the detective that defendant moved her a couple of feet, and she stated in her trial testimony that defendant moved her an estimated distance of 10 feet. Defendant relies on In re Crumpton (1973) 9 Cal.3d 463, 466 (Crumpton), and People v. Daniels (1969) 71 Cal.2d 1119, 1134 (Daniels), cases involving aggravated kidnapping to commit robbery, to claim a distance of 10 feet under the circumstances of his crimes was incidental.

To the extent Mallory's statements conflict with the testimony of the police officers that the movement was 53 feet, we resolve all factual conflicts in favor of the judgment (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429), and thus rely on the officers' testimony to the extent necessary to affirm the judgment.

More significantly, the actual distance a victim is moved beyond what is necessary to commit the crime is not a determinative factor. As defendant acknowledges, "there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong [of non-incidental movement]." (People v. Martinez, supra, 20 Cal.4th at p. 233.) The actual distance moved is only one factor to consider. The court must also review the scope and nature of the movement.

This is particularly true in the case of rape. In robbery cases like those cited by defendant, the movement is oftentimes necessary to complete the crime, such as in Crumpton and Daniels, where the assailants moved the victims by force or fear to gain access to money. However, "there is a difference between robbery where a defendant moves a victim to target a safe, and rape where a defendant moves a victim to target her body." (People v. Aguilar (2004) 120 Cal.App.4th 1044, 1051.) "[A] rape involves solely an attack on the person and does not necessarily require movement to complete the crime." (People v. Salazar, supra, 33 Cal.App.4th at p. 347, fn. 8.) Thus, even if defendant moved Mallory only 10 feet before raping her, that distance is sufficient because the nature and circumstances of defendant's crimes demonstrate the movement was not incidental and was not insubstantial.

Defendant argues the movement was insubstantial because it allegedly did not increase the risk of harm. This, defendant claims, was because there was a light and security cameras in the alley. Substantial evidence indicates otherwise. The alley was long and contained trees and bushes that provided defendant cover from traffic on the main street. In addition, the security cameras captured no images of the assault, and, according to Ms. Torres, the Social Security Administration employee from whom Mallory first sought help, the light in the alley was not working that morning and the alley was dark.

Under these circumstances, we easily conclude substantial evidence supports the aggravated kidnapping conviction and the kidnapping and movement enhancements. When defendant moved Mallory from a public sidewalk along a city street to an area of trees and bushes in a dark alley, he isolated her and substantially increased the risk of harm to her. The movement was neither incidental nor insignificant.

II

Exclusion of Evidence of Prior Sexual Conduct

Defendant claims the trial court committed prejudicial error when it refused to allow defense counsel to cross-examine Mallory and Dr. DeMartinis about Mallory's prior sexual conduct within five days of the attack. Defendant claims he was entitled to introduce the evidence as an alternate explanation for the injury to Mallory's vagina. We conclude the even if the trial court may have erred by not allowing defendant to cross-examine Mallory and Dr. DeMartinis about the prior sexual conduct, such an error was harmless under any standard.

A. Additional background information

Defense counsel filed an in limine motion seeking to cross-examine Mallory and Dr. DeMartinis about a sexual encounter Mallory had with her boyfriend five days before the attack. As an offer of proof, counsel submitted an affidavit under seal stating that while she reviewed reports associated with this case, she became aware that Mallory told medical and police personnel she had engaged in consensual intercourse with her boyfriend "within five days" of the assault. Counsel argued the evidence was relevant to show an alternate cause of Mallory's injury to her posterior fourchette. Counsel asserted the evidence did not go to the issue of Mallory's credibility, but counsel, out of an abundance of caution, brought her motion pursuant to Evidence Code section 782, a procedure used to determine the admissibility of sexual conduct evidence proposed to attack the testifying victim's credibility.

The prosecutor acknowledged Mallory had indicated on her medical record that she had consensual sexual intercourse with her boyfriend five days before the attack. Mallory even provided the date of the act. Nonetheless, the prosecutor argued the evidence would be irrelevant because the doctor would testify that injuries such as Mallory's in that area of the body heal extremely fast and in less than five days.

The trial court denied defendant's request to cross-examine Mallory out of the presence of the jury on her prior sexual conduct with her boyfriend. However, the court allowed defense counsel to ask Mallory and the doctor whether Mallory had any injures or impact to that area of her body prior to the date of the attack. Counsel could not ask Mallory about sexual encounters with her boyfriend or anyone else.

Defense counsel raised her motion again during trial, this time claiming the evidence was relevant to Mallory's credibility. In response, because Mallory had testified she was in pain after the incident, the prosecutor stated it would be fair for defense counsel to ask Mallory if she was in pain in her genital area before the attack. The trial court agreed with that statement. Otherwise, the court did not modify its earlier order: "My order is going to be what I said. No reference to sexual intercourse with the boyfriend, but you can ask her whether or not she noticed any injuries, pre-existing injuries to herself or not."

Defense counsel asked Mallory on cross-examination whether she had any pre-existing injuries to her vaginal area. Mallory replied, "Not that I can recall, no." Counsel also questioned Mallory on the same issue as it was referenced in the medical questionnaire given Mallory at the hospital:

"Q. And in response to the question, 'Did you have any anal, genital injury, pain and/or bleeding,' you responded, 'No,' correct?

"A. "If that's what's on the paperwork, that's what I said.

"Q. So you didn't have any pain or irritation that you told the doctor about?

"A. Not that I remember, no."

Dr. DeMartinis testified on direct examination that a tear to the posterior fourchette "implies that some degree of force was applied to that area." The posterior fourchette was "a common area for you to see injuries" in women who had been sexually assaulted, although a tear in that area would not necessarily be present in a woman who was forcibly assaulted. It was also possible to have such a tear from consensual intercourse. Dr. DeMartinis would not expect to see any tears after consensual intercourse, "[b]ut if somebody was having vigorous sex, then it's possible, and especially if the woman wasn't adequately prepared and her vagina was not lubricated then it's possible."

The prosecutor did not ask Dr. DeMartinis to give his opinion on the age of Mallory's injury. On cross-examination, defense counsel addressed the issue of the injury's age with Dr. DeMartinis as follows:

"Q. Was there anything that you viewed during the course of your examination that could give you any indication how old this injury was?

"A. No. Except the fact that it's present -- injuries to that area heal up very quickly.

"Q. Okay. And is it true that depending on the depth of the injury, they can last anywhere from 2 to 20 days before they heal?

"A. I'm sure there could be an injury that could take 20 days if it was deep enough, yes.

"Q. And you don't have any record how deep this tear was?

"A. I do not."

B. Analysis

After briefing was completed in this case, our Supreme Court held that a sexual assault victim's prior sexual conduct may be admissible for the limited purposes of offering an alternative explanation for the victim's physical injuries. (People v. Fontana (2010) 49 Cal.4th 351, 362-363.) The high court held that such evidence may be admissible under Evidence Code section 782, provided that the evidence is relevant under Evidence Code section 780 and is not barred by Evidence Code section 352. The court reasoned: "In such circumstances, 'it is not the fact of prior sexual activity as such that is important, but something about the special circumstances under which that prior sexual activity took place that renders it important.' [Citation.] Where the prosecution has attempted to link the defendant to physical evidence of sexual activity on the complainant's part, 'the defendant should unquestionably have the opportunity to offer alternative explanations for that evidence, even though it necessarily depends on evidence of other sexual conduct.' [Citation.]" (People v. Fontana, supra, 49 Cal.4th at p. 363.)

The trial court did not have the benefit of the Supreme Court's recent ruling, but even if it had, we conclude the court's refusal to allow defendant to cross-examine Mallory about her prior sexual conduct was harmless under the federal and state standards of harmless error. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-11]; People v. Watson (1956) 46 Cal.2d 818, 836.) This is because Mallory testified at trial that she had no injury or pain in her vaginal area before the attack. No matter what had happened five days before the attack, it had no effect on her at the time of the attack. Moreover, Dr. DeMartinis testified he did not determine the age of the injury, but that its presence suggested to him the injury was recent because injuries in this area of the body heal quickly. Thus, even if cross-examination had been allowed, it would not have resulted in discovering an alternate cause of Mallory's injury.

More significantly, admission of any evidence from such a cross-examination would not have changed the outcome of this trial. The evidence against defendant and his defense of consent was overwhelming. Mallory sought help and reported being raped quickly after the attack. Her demeanor at the time -- crying, scared, completely distraught -- was consistent with someone who had just been traumatized. The injury to her lip supported her testimony that defendant struck her in the mouth when she attempted to scream. The injury to her posterior fourchette was consistent with sexual assault and implied the use of force. Defendant discarded his jacket on the side of a dumpster near the crime scene, indicating a consciousness of guilt on his part. The cologne on the jacket smelled the same as the cologne found on defendant. Defendant's DNA matched that found on Mallory. And defendant even wrote a letter of apology to Mallory, stating, "[F]rom the bottom of my heart I am so very sorry for everything that I have put your through. This was the last thing on my mind that I would have ever done to anybody. . . . [¶] . . . I know I deserve everything or charge you have against me [sic]. I just wanted to apologize to you for everything." This statement is an admission and confession of all Mallory accused defendant of doing to her.

In contrast, defendant's story of what happened that morning changed at least three times. He originally claimed he was never near the Social Security Administration building that morning. Then he claimed he was there, grabbed the victim from behind, made her think he was going to hurt her, but then could not remember what happened after that. In this second version, defendant stated he did not know the victim.

At trial, defendant told a third version completely different from the other two. Defendant claimed he knew Mallory, and that they agreed to have consensual sex in an alley at 7:00 a.m. on a cold December morning a few minutes before Mallory went to work. His only evidence of consent was his third story. In light of all the other evidence indicating an act of forcible rape and sexual assault, there was no likelihood that testimony by Mallory that she had consensual intercourse five days prior to the attack, introduced as an alternate explanation of her physical injury, would have resulted in a more favorable verdict for defendant. The direct and circumstantial evidence was too strong and defendant's credibility too weak for the evidence of prior sexual conduct to change a juror's mind. Any error by the trial court in refusing to allow defendant to cross-examine Mallory on her prior sexual conduct was harmless beyond a reasonable doubt under the federal and state standards of harmless error review.

III

Exclusion of Evidence of Internet Posting

Defendant asserts the trial court erred when it excluded evidence of postings on Mallory's Internet MySpace page that defendant claimed showed Mallory's state of mind five days after the attack was not one of someone who had been raped. We conclude the trial court did not abuse its discretion when it refused to admit the evidence, and even if it had, the error would have been harmless under any standard of review.

A. Additional background information

The court recessed trial on a Friday 25 minutes early due to Mallory's demeanor while testifying. According to the court, Mallory "is just almost hysterical. She's just broken down over and over again. She's been crying almost without interruption ever since the examination began. [¶] I am concerned that she is so upset and looks so pitiful that it is going to have an impact on the jury, so I think maybe we better stop for the day finally. [¶] I'm worried about a fair trial here."

The following week, during subsequent cross-examination of Mallory, defense counsel requested the court's permission to introduce evidence of a post Mallory allegedly made to her MySpace page five days after the rape. The post read: "Collecting cardigans. [¶] . . . [¶] My new past time [sic]. [¶] We also taught our kitty, Bruno, to play fetch with his mini catnip tennis ball. Tre cute." Counsel argues this evidence went to Mallory's state of mind and her credibility. Counsel stated, "[T]his is not the conduct of somebody who is five days post brutalization. Her statements do not fit in with the mindset of somebody who is exhibiting all of the symptoms that she's showing in court . . . . [¶] The portrayal that she's given is that she's somebody who's been completely devastated by this event, and yet, when she's speaking to the public about what's going on, she's talking about rather inane issues that do not reflect any sort of brutalization or ongoing trauma as she's trying to portray now."

The prosecutor argued against admitting the evidence, claiming the evidence was irrelevant. Mallory's state of mind five days after the attack was not relevant, and persons who suffer traumatic events still attempt to function in life as best they can: "Just 'cause she is taking a minute or two to write on this does not mean she's not traumatized by this."

The court denied defendant's request, ruling the evidence was irrelevant. The court questioned whether the evidence could survive an Evidence Code section 402 hearing, as it believed anyone could access this Internet site and post statements and pictures under someone's name. It also determined under Evidence Code section 352 that admitting the evidence would require an undue amount of time, as it would require a computer expert to show whether someone could access someone else's MySpace page, and it would confuse the issues and confuse the jury.

Defense counsel argued that Mallory could lay the requisite foundation by testifying if she was the user of this site and if she wrote the post. The court said even if Mallory could establish that foundation, the evidence still was not admissible under Evidence Code section 352.

B. Analysis

We apply the abuse of discretion standard of review to any ruling by the trial court on the admissibility of evidence, including a ruling under Evidence Code section 352. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1449.)

We conclude the trial court did not abuse its discretion by determining the evidence, even if relevant, was inadmissible under Evidence Code section 352. The court believed that admitting the evidence would require expert testimony. It also believed the evidence's probative value was heavily outweighed by how the evidence would confuse the issues and confuse the jury. We cannot say the court abused its discretion under these circumstances.

Even were we to find the court abused its discretion, we would nonetheless conclude the court's error was harmless under both the federal and state standards of harmless error review. As we explained above, the evidence against defendant was overwhelming. The admission of this Internet posting, assuming it was written by Mallory (a fact that was never established), would not have changed the jurors' minds. There was no possibility that a MySpace posting allegedly by the victim mentioning a hobby and a pet five days after the attack would have resulted in a more favorable verdict for defendant. Any error by the trial court in refusing to admit the posting was harmless under any standard of review.

IV

Omission of Instruction on Lesser Included Offense

Defendant claims the trial court erred by not instructing on the lesser included offense of simple kidnapping. He asserts his testimony that he and Mallory engaged in consensual sex provided substantial evidence supporting an instruction on simple kidnapping. We disagree, as there was not substantial evidence to support an instruction on simple kidnapping.

"'In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 548, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1085.)

"'As our prior decisions explain, the existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury. [Citations.] "Substantial evidence" in this context is "'evidence from which a jury composed of reasonable [persons] could . . . conclude[]'" that the lesser offense, but not the greater, was committed. [Citations.]' ([People v. Breverman (1998) 19 Cal.4th 142,] 162.)" (People v. Moye, supra, 47 Cal.4th at p. 553, first italics in original, second italics added.)

Here, there was insufficient evidence at trial that defendant was guilty only of kidnapping but not aggravated kidnapping so as to justify an instruction on simple kidnapping. Simple kidnapping involves moving a person against his will from one place to another by the use of force or fear. (§ 207, subd. (a).) Aggravated kidnapping, in this case kidnapping for rape, requires a showing that the defendant kidnapped a person for purposes of committing rape. (§ 209, subd. (b)(1).)

Mallory testified defendant put her in a headlock, pulled her into the alley, and then raped her. Defendant, on the other hand, testified he never grabbed Mallory or forcibly moved her into the alley. This evidence gave the jury only two choices: either defendant committed aggravated kidnapping, or he did not kidnap her at all. There was no substantial evidence or theory at trial that defendant committed only a simple kidnapping. Thus, the court was under no requirement to give an instruction sua sponte on the lesser included offense of simple kidnapping.

V

Separate, Consecutive Prison Terms for Sexual Offenses

Defendant contends the trial court improperly sentenced him to full, separate and consecutive prison terms for the three sex offense convictions. He argues the sexual assaults were a continuous, uninterrupted incident that occurred on the same occasion, and thus they did not qualify for full, consecutive sentencing under section 667.6, subdivision (d). We disagree.

Subdivision (d) of section 667.6 requires the defendant to serve a "full, separate, and consecutive term" for each of his sex crime convictions if the crimes involve "the same victim on separate occasions." (§ 667.6, subd. (d).)

"In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his . . . opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (§ 667.6, subd. (d).)

"Our Supreme Court has recently summarized case law construing the 'separate occasions' requirement of section 667.6, subdivision (d) as follows: 'Under the broad standard established by . . . section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location. Thus, the Court of Appeal herein cited People v. Irvin (199[6]) 43 Cal.App.4th 1063, 1071, for the principle that a finding of "separate occasions" under . . . section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: "[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter." Similarly, the Court of Appeal in People v. Plaza (1995) 41 Cal.App.4th 377, 385, affirmed the trial court's finding that sexual assaults occurred on "separate occasions" although all of the acts took place in the victim's apartment, with no break in the defendant's control over the victim. (But see People v. Pena (1992) 7 Cal.App.4th 1294, 1316 [defendant's change of positions between different sexual acts was insufficient by itself to provide him with a reasonable opportunity to reflect upon his actions, "especially where the change is accomplished within a matter of seconds"]; People v. Corona (1988) 206 Cal.App.3d 13, 18 [holding, after the respondent implicitly conceded the point, that the trial court erred in imposing consecutive sentences for different sexual acts when there was no cessation of sexually assaultive behavior "between" acts].)' (People v. Jones [(2001)] 25 Cal.4th 98, 104-105.)

"Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1091-1092.)

Applying this deferential standard, we conclude the trial court here could reasonably have decided that defendant had a reasonable opportunity for reflection after completing each offense before initiating his subsequent offenses. There was an appreciable time interval between each of defendant's acts. First, there was time for reflection between the forcible sexual penetration with a foreign objection and the forcible oral copulation. After defendant committed the penetration, he unzipped his zipper, removed his penis and demanded Mallory to masturbate him. Mallory complied. At one point, she pleaded with him to allow her to stop. Defendant ignored her pleas, told her to spit on her hand and to continue rubbing him.

Then, defendant told Mallory she was going to have to orally copulate him for four minutes. Mallory complained, and defendant dropped his requirement to three minutes. Mallory continued to plead with him not to do this. Defendant then dropped his demand to 30 seconds. Defendant then told Mallory to turn around and face him. When she did, he had covered up part of his face with his jacket. This all occurred before defendant forced Mallory to orally copulate him. There was sufficient time for defendant to reflect upon his actions between the penetration and the oral copulation crimes.

Similarly, there was sufficient time for defendant to reflect upon his actions between forcing Mallory to orally copulate him and his raping her. After the oral copulation, defendant instructed Mallory to get up. She did and turned back around to face the wall. Defendant asked her if she liked it "doggy style," and Mallory said no. Defendant placed his hand underneath Mallory's bra and shirt and fondled her breast. He then pulled down Mallory's skirt and underclothing, placed his hands between her legs, and told her to spread them. After all this, he commenced raping her.

Thus, between the oral copulation and the rape, defendant required Mallory to stand up and change her position, and he committed a separate uncharged sex offense. There can be no doubt that a reasonable trier of fact would conclude defendant had sufficient time to reflect upon his actions between the completion of the oral copulation and the commencement of the rape.

Under these circumstances, we easily conclude the trial court did not err by imposing separate, full and consecutive sentences for defendant's three sex offense convictions.*fn3

DISPOSITION

The judgment is affirmed.

We concur:

ROBIE,J. SIMS,J.*fn4


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