(Super. Ct. No. SWF013909) APPEAL from a judgment of the Superior Court of Riverside County, Mark E. Petersen, Judge. Affirmed in part; reversed in part and remanded.
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Aaron Wade Byrd contends the trial court erred when it sentenced him to prison for forcible sodomy (Pen. Code,*fn1 § 286, subd. (c)(2) (count 3) with a fixed-term enhancement for aggravated kidnapping for purposes of committing the crime (§ 667.61, subd. (d)(2)), but refused to stay his sentence for simple kidnapping (§ 207 (count 1)) because, Byrd contends, he committed the sodomy during the same kidnapping. Byrd also contends his case should be remanded for resentencing because the trial court did not recognize it had discretion to impose concurrent, as opposed to consecutive, sentences on counts 1, 2, 3 and 5 based on the trial court's failure to recognize that all the offenses arose on the same occasion or out of the same operative facts.
As we explain, we agree the record fails to show the trial court recognized it had discretion to sentence Byrd concurrently when it sentenced him consecutively on count 5, possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)) under the Three Strikes law. We thus remand for resentencing on count 5 only. In all other respects, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In mid-October 2005 between 8:00 and 9:00 p.m., 17-year-old victim 1 and his friend, 15-year-old victim 2, were together in a pickup truck driven by victim 1. The boys were driving on a dirt road in the Meadowbrook area of Riverside County, headed towards a friend's house. It was dark. Victim 1 and victim 2 saw Byrd step into the middle of road in the path of the pickup. Standing in the light from the headlights of the pickup, the boys saw Byrd holding what turned out to be a .22-caliber rifle. Victim 1 stopped his pickup to avoid hitting Byrd. Victim 1 froze and Byrd pointed his rifle at the boys as he forced his way into the cab of the pickup. Both boys recognized Byrd as a local transient.
Byrd angrily ordered victim 1 to start driving. Byrd gave victim 1 directions and threatened victim 1 with the rifle. At some point, Byrd said he needed to pick up a friend and wanted to get methamphetamine. As they drove, Byrd and victim 1 argued about an old, beat-up computer belonging to Byrd. Apparently, about a week before this incident, victim 1 drove Byrd and victim 1's friend to a location where they unsuccessfully attempted to trade the computer for some drugs. When the deal fell through, Byrd left his computer in the back of victim 1's pickup and that was the last time Byrd saw it.
Victim 2 repeatedly told Byrd he wanted to get out of the pickup, as victim 2 had no knowledge of Byrd's computer or what had happened to it. Byrd eventually agreed and directed victim 2 to get out in "the middle of nowhere." Byrd threatened victim 2 with the rifle and demanded victim 2 get out to make room for Byrd's friend that Byrd wanted to pick up. Victim 2 told victim 1 to "take me home" and victim 1 began driving towards victim 2's home. As they drove, victim 2 implored Byrd to let him go. Byrd finally agreed to let victim 2 go near victim 2's house. Victim 2 estimated he was inside the pickup with Byrd and victim 1 for at least 15 minutes.
Victim 1 testified he gave victim 2 his cell phone before victim 2 got out of the pickup so that victim 2 could call the police. Victim 2 testified he had his own cell phone and victim 1 did not give him a cell phone. In any event, when victim 2 got home he neither called the police nor told anyone what had just happened.
With victim 2 gone, Byrd directed victim 1 to "drive." Byrd eventually had victim 1 drive to a specific location, stop the pickup and walk with Byrd some distance to a trailer. Byrd kept the rifle "on [victim 1] the whole time." Byrd ordered victim 1 into the trailer and, once inside, into an empty room in the back of the trailer. The area around the trailer was dark and there was no light inside the trailer other than from the moonlight. Victim 1 complied with Byrd's demands because Byrd was armed and victim 1 feared for his life if he tried to escape.
Once in the bedroom, Byrd had victim 1 hold lighted matches under tinfoil so Byrd could smoke methamphetamine. Byrd offered victim 1 methamphetamine but victim 1 refused. Victim 1 estimated it took Byrd about an hour to smoke the drug. While in the bedroom, Byrd again brought up the missing computer and asked victim 1 how he intended to compensate Byrd for it. Victim 1 told Byrd he had nothing to do with the loss of the computer and did not owe Byrd anything. Nonetheless, victim 1 offered Byrd some "speakers" but Byrd declined.
Byrd next ordered victim 1 to take off his clothes. When victim 1 refused, Byrd pointed the rifle at victim 1's head and asked victim 1 if he wanted to die. Victim 1 pushed the barrel of the rifle away from his head, but Byrd became angry and insisted victim 1 remove his clothes. Victim 1 complied. During this time, Byrd suggested victim 1 could repay him with oral sex for the lost computer.
Byrd next ordered victim 1 to lie down on the floor on his stomach. After victim 1 complied, victim 1 looked over his shoulder, saw the gun in Byrd's right hand and Byrd taking off his pants and shirt and heard Byrd opening what sounded like a condom package and spitting on himself for lubrication. Byrd then used his legs to push victim 1's legs apart, got on top of victim 1 and inserted his penis into victim 1's anus. Byrd sodomized victim 1 for about a half-hour, moving back and forth inside him, and removing his penis from victim 1's anus "several times" and reinserting it. Victim 1 did not attempt to escape because Byrd kept the rifle in his right hand the entire time.
After victim 1 felt Byrd ejaculate onto victim 1's back and anus, Byrd sat and dressed. Victim 1 grabbed his clothes and dressed. He testified he told Byrd, "[Y]ou know, you don't tell anybody--I wouldn't-tell-anybody type thing, you know. Kind of like said, 'Can I go, pretty much, as long as I don't tell anybody, if I don't say anything?' Made it seem like I wouldn't say anything." Byrd shook his head, and victim 1 left, walked to his pickup and drove straight home. Victim 1 took a shower and went to bed.
The next morning, victim 1 told his mother what had happened. Victim 1's mother called the police, who met with victim 1 at his house. The police then drove victim 1 to the location where Byrd had made victim 1 park his pickup near the trailer. The police then took victim 1 to the hospital for a physical examination.
Police showed victim 1 a photographic lineup and he immediately identified Byrd as the perpetrator. Police examined the underwear worn by victim 1 on the night of the incident and found it tested positive for seminal fluid and spermatozoa. A DNA analysis established Byrd was the primary contributor of the sperm and seminal fluid while victim 1 was a "possible" secondary contributor of the sperm. Police arrested Byrd the day after the incident.
The District Attorney of Riverside County filed a five-count second amended information (information) charging Byrd in count 1 with the October 14, 2005 kidnapping of victim 1 (§ 207, subd. (a)), in count 2 with kidnapping of victim 2 (ibid.)), in count 3 with forcible sodomy of victim 1 (§ 286, subd. (c)(2)), in count 4 with forcible sodomy of a person under the age of 18 (id., subd. (b)(1)) and in count 5 with possession of a firearm by a convicted felon. (§ 12021, subd. (a)(1).) In connection with count 3, the information alleged Byrd personally used a firearm (§§ 667.61, subd. (d)(2), 1192.7, subd. (c)(8)), Byrd kidnapped victim 1 in connection with the commission of the offense (§ 667.61, subd. (d)(2)) and personally used a firearm and a deadly and dangerous weapon, namely a .22-caliber rifle. (§§ 12022, 12022.3, 12022.5, 667.61, subd. (e)(4).) For all counts, the information alleged Byrd had served prison terms (§ 667.5, subds. (a), (b)), had two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions. (Id., subds. (c), (e)(2)(A), § 1170.12, subd. (c)(2)(A).) At trial, Byrd did not present a defense.
A jury convicted Byrd on all counts and made true findings on the enhancements with the exception of section 667.61, subdivision (e)(4)--use of dangerous or deadly weapon or a firearm in connection with offense specified in subdivision (c)--in connection with count 3. The trial court subsequently made true findings on the prior convictions, prison terms and strike enhancements that were specifically alleged in each of the charges.
In early November 2009, the trial court sentenced Byrd to a total prison term of 190 years to life computed as follows: for count 3, forcible sodomy of victim 1, the court imposed a term of 25 years to life pursuant to section 667.61, subdivision (a) and tripled that sentence based on Byrd's two prior robberies alleged as strikes, for an aggregate term of 75 years to life. The court imposed an additional 10 years for the section 12022.53, subdivision (b) enhancement and an additional 10 years for the two prior robberies pursuant to section 667, subdivision (b). The court struck the allegations of prior convictions brought pursuant to section 667.5, subdivisions (a), (b). Thus, the total term imposed by the court on count 3, which the court deemed the principal term, was 95 years to life.
As to count 1, kidnapping (victim 1), the court imposed a consecutive third strike sentence of 25 years to life, plus an additional five years for each of the section 667, subdivision (a) robbery priors for a total term of 35 years to life. As to count 2, kidnapping (victim 2), the court sentenced Byrd to a consecutive third strike term of 25 years to life plus an additional five years for each of Byrd's two section 667, subdivision (a) priors for a total term of 35 years to life.
As to count 4, sodomy with a person under the age of 18, the court sentenced Byrd to a third strike term of 25 years to life, but stayed the imposition of that sentence and the enhancements pursuant to section 654. As to count 5, ex-felon in possession of a firearm, the court imposed a consecutive third strike sentence of 25 years to life.
A. Stay of Punishment on Count 1
Byrd first contends the trial court erred when it refused to stay the execution of his sentence for kidnapping victim 1 in violation of section 207, subdivision (a) (count 1) because kidnapping was the only qualifying circumstance used to sentence Byrd under subdivision (a) of section 667.61 (the One Strike law) ...