The opinion of the court was delivered by: Butz ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Alejandro Alfonso Sanchez of one count of rape by force or threat (Pen. Code, § 261, subd. (a)(2)),*fn1 with an enhancement for kidnapping (§ 667.61, subds. (b) & (e)(1)). Defendant was also convicted of one count of kidnapping (§ 207, subd. (a)), and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). He was sentenced to 15 years to life in state prison.
On appeal, defendant complains of ineffective assistance of counsel, inadequate voir dire of the jury panel, and sentencing error. We shall correct the sentence but in all other respects affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
At approximately 1:00 a.m. on January 24, 2009, 14-year-old D.C. snuck out of her parent's house in Woodland to meet her boyfriend Fernando, who was on house arrest and unable to leave his residence. Pursuant to their arrangement, Fernando's cousin Heriberto picked up D.C. and gave her a ride in a car that belonged to defendant's mother. Defendant and D.C.'s friend Ramiro were passengers. D.C. knew defendant from school, but they were not friends. While at Fernando's house, everyone but Heriberto smoked marijuana.
Around 4:30 a.m., the group left Fernando's house in the car belonging to defendant's mother. After Heriberto dropped himself off, defendant took the wheel. He drove Ramiro home and continued toward D.C.'s house, located only three or four blocks away. However, defendant spotted a police car and abruptly veered in the opposite direction.
After some distance, defendant parked the car, grabbed D.C., and said, "You're about to get fucked, bitch." D.C. wriggled free and ran from the vehicle, but defendant chased her down the street, grabbed her, and forced her back to the car while covering her mouth. He warned her not to scream because he had a knife.
Once inside the car, defendant apologized. They agreed D.C. would drive herself home with defendant in the back seat. As D.C. stopped in front of her house, defendant wrapped his arm around her neck from the back seat and blocked the door handle. He forced D.C. to drive while keeping his arm around her neck. Once she parked the car, defendant pulled D.C. by her armpits into the backseat.
D.C. struggled with defendant and repeatedly resisted his demands that she have sex with him. When D.C. refused to take off her jeans, defendant punched her in the cheek and choked her until she fainted. When D.C. awoke, defendant was driving in a remote area and she was lying naked on the back seat with semen in her hair and mouth. D.C. got dressed and opened the window to catch her breath because her throat was closed and swollen.
Trying to escape, D.C. threw herself out of the moving vehicle, breaking her ankle. A passing vehicle stopped and gave D.C. a ride home. Just before 6:30 a.m., D.C. limped into her driveway. Her clothes were covered with dirt. She sustained multiple scratches and was missing a shoe.
D.C. was taken to the hospital for a sexual assault examination. She needed surgery to repair her broken ankle. D.C. was a virgin before this incident, and she told the examining nurse that her vagina had been bleeding. She had multiple abrasions covering her body, a bite mark on her cheek, and broken blood vessels on her face and neck, which are commonly associated with strangulation. Her genitals were injured in a way consistent with acute sexual assault, and semen matching defendant's DNA profile was found on her cheek. D.C. told the examining nurse that she remembered defendant trying to put his penis in her mouth and ultimately penetrating her vagina with his penis as she slipped in and out of consciousness.
Defendant was charged in count 1 with forcible rape (§ 261, subd. (a)(2)), with enhancements for kidnapping which substantially increased the risk of harm and personal infliction of great bodily injury (§ 667.61, subds. (a), (b), (d)(2), (e)(1) & (3)). Count 2 charged defendant with kidnapping with an enhancement for personal infliction of great bodily injury (broken ankle). (§§ 207, subd. (a), 12022.7, subd. (a).) The information also alleged two counts of assault by use of force likely to produce great bodily injury: count 3 for "choking" with an enhancement for personal infliction of great bodily injury ("unconsciousness"); and count 4 for "punch to face." (§§ 245, subd. (a)(1), 12022.7, subd. (a).)
The jury found defendant guilty of counts 1 through 3 (rape, kidnapping, and assault based on "choking"), and found true the aggravated kidnapping enhancement attached to count 1 (§ 667.61, subd. (b)). However, they acquitted him on count 4 ("punch to face") and deadlocked on the remaining enhancements, which were eventually dismissed. Defendant was sentenced to state prison on count 1 for an indeterminate term of 15 years to life. Punishment on the remaining counts was stayed pursuant to section 654.
I. Ineffective Assistance on the ...