The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jonathan Michael Rodriguez of kidnapping to commit specified sex offenses, sexual penetration with a foreign object, commission of a lewd act on a child at least 10 years younger than defendant, first degree burglary, and misdemeanor resisting arrest. The jury found other enhancement allegations true and defendant admitted a prior strike conviction. The trial court sentenced him to 59 years to life in prison.
Defendant contends (1) his admissions should have been excluded at trial because his Miranda rights were violated (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2) the trial court abused its discretion in admitting evidence of five of his prior convictions for impeachment purposes; (3) he cannot be punished for both sexual penetration with a foreign object and lewd conduct because the jury's verdict might have been based on the same act; (4) it violates Penal Code section 654 to punish defendant for (a) kidnapping to commit specified sex offenses, and (b) the sex offenses; and (5) the trial court abused its discretion in denying his request to dismiss the prior strike conviction.
Defendant's fourth contention has merit. Accordingly, we will stay the sentence on the kidnapping conviction. In all other respects, we will affirm the judgment. We will also direct the trial court to correct clerical errors in the abstract of judgment.
On the morning of June 18, 2008, Robert Griffiths and his wife went to work, leaving their five children at home. The children were ages 2, 5, 8, 10, and 12. Their babysitter, Jane Doe, was going to arrive later that morning. After the Griffiths left but before Jane Doe arrived, defendant came to the side door and asked Kyle, who was eight, if his parents were home. When Kyle indicated they were not, defendant said, "I need to go to the bathroom and get a drink." Defendant entered the Griffiths's home holding an open pocket knife in his hand.
Jane Doe arrived shortly after defendant entered the home. Kyle informed her that there was a strange man in the house, but when she checked the home she did not find anyone. Around 15 minutes later, Jane Doe went into the girls' bedroom to change the diaper of the youngest Griffiths child. Defendant was standing behind the door holding a knife in his hand. Jane Doe was "taken aback" and asked what he wanted. Defendant "herded [her] into the room" and then shut the door and locked it. Defendant was dressed "haphazardly" in a black beanie with blue sequins, a partially buttoned long-sleeved shirt, and gray shorts. Jane Doe asked again what he wanted, and defendant replied he did not know. Defendant played with the knife intermittently, in a manner that made Jane Doe think he was reminding her that he was in power.
When defendant saw Kyle looking in through the bedroom window, defendant led Jane Doe down the hall to the master bedroom and locked the door. She felt like she was losing control of the situation, and her primary concern was for the toddler, whom she was carrying. Jane Doe tried to make conversation and told defendant that it was her 14th birthday that day. She urged defendant to leave and not to make "bad choices," but he was not "buying it." She noticed that defendant had a "swirly" tattoo on his stomach. The Griffiths boys began throwing rocks at the master bedroom window, and then used their slingshot on the bedroom door.
Defendant moved Jane Doe into the master bathroom, still carrying the toddler. He became more "touchy feely," touching her back and the top of her bottom. Jane Doe told him to stop but he ignored her. Defendant told her to turn and face the wall, but she refused. Defendant started getting angrier and, while holding his knife, told her to take off her clothes or he would cut them off. The knife blade was very close to Jane Doe's face. They went back into the master bedroom and she asked defendant if he was going to rape her. He replied no, he "just want[ed] to see her."
Defendant lifted up Jane Doe's shirt and cut her sports bra in half before removing her tee shirt and undershirt. He sat behind her, grabbed her breasts, and rubbed her belly for one or two minutes. Jane Doe felt violated, sickened and repulsed during the assault. Defendant then stood up and told Jane Doe to stand up. Defendant removed her shorts and underwear. He stood behind her, put most of his finger "under the two flaps of skin" of her vagina and felt around.
Defendant told Jane Doe to lie down on the bed, and when she refused he dragged the dull side of the knife blade across her throat. He started to get "really mad," so she complied and lay face down. Defendant forced her legs apart, pulled back the skin and looked at her vagina. He attempted to penetrate her with his finger but, although his finger got past the flaps of skin, it did not go in her vagina.
Deputy Sheriff Mark Hollitz and other law enforcement officers were dispatched to the Griffiths's residence after receiving a call that there was a strange man in the house. Deputy Hollitz arrived right after defendant sexually penetrated Jane Doe. Jane Doe heard someone knock on the bedroom door and announce "police." Deputy Hollitz asked if everything was alright; Jane Doe replied "No" and unlocked the bedroom door. When Deputy Hollitz entered the room, Jane Doe was naked and holding a toddler. She pointed to the bathroom window. Deputy Hollitz turned and saw someone leaving through the window.
Defendant ran from the residence, drove off in a red Nissan Sentra and crashed through a parking lot gate with police in pursuit. He was apprehended a short time later while hiding inside the home of Daniel Williams.
Defendant was interviewed. Both the recording and the written transcript of the interview were admitted at trial. Defendant admitted entering the Griffiths's residence, but claimed an 8 or 10-year-old boy gave him permission to do so. He denied committing any sex offenses on Jane Doe, but admitted he had a knife, Jane Doe told him "you're kind [of] scaring me," and he got the impression she wanted him to leave. Defendant was ashamed of "how it went down," but denied any penetration occurred and claimed that even if there was any sexual contact, it would have been no more than statutory rape.
The doctor who examined Jane Doe observed bruising on her hymen and small cuts on the edges, consistent with sexual penetration past the labia majora and labia minora.
Defendant testified at trial. He claimed he was with his friend, Travis Kneebone, on the day in question and that Kneebone stopped at the Griffiths's residence. The two went into the house and defendant used the bathroom. As defendant walked down the hallway, he came upon Jane Doe, who was with a toddler. After a brief conversation, they went into the girls' bedroom and Jane Doe asked him to close and lock the door. She changed the toddler's diaper while defendant fiddled with his folding knife as a "nervous habit."
After changing the toddler's diaper, Jane Doe suggested going to see what Kneebone was doing. Defendant put his hand on her shoulder, making an "after you" gesture, and they walked to the master bedroom where they found Kneebone. Kneebone locked the door and defendant offered Jane Doe some marijuana, but she declined. Defendant took out his knife again and accidentally cut his finger. He went into the master bathroom to wash the cut.
Defendant came out of the bathroom when he heard a loud noise like a rock on the window. Kneebone and Jane Doe were sitting on the bed, and Kneebone gestured for defendant to leave. Defendant went into the bathroom and sat on the toilet seat. After a time, the door opened and Kneebone came in with Jane Doe, who was still holding the toddler. The other children came to the door and Jane Doe told them to go away. After they left, Kneebone and Jane Doe went back into the bedroom, and within five minutes defendant heard sirens. Defendant went into the bedroom and saw Kneebone on the bed with Jane Doe, who was naked from the waist up. Defendant denied he sexually touched the victim. He also denied using the knife to threaten her, or to cut off her clothing.
Defendant testified that when the police knocked on the door, Jane Doe instructed him to leave via the window and told Kneebone to get into a trunk at the foot of the bed. Defendant jumped out of the window and ran to his car. He drove away from the officer in the parking lot because he was being tailgated. He left his car at a park and eventually went to Daniel Williams's house, where he was arrested.
A detective who participated in the initial walkthrough of the crime scene said he did not notice the trunk at the foot of the bed because it was covered with a sheet. However, he searched the trunk later in the afternoon and it was filled with neatly folded bedding and clothing. It would have been very difficult for Kneebone to either fit or be concealed in the trunk.
Travis Kneebone testified that defendant came by his house that day but Kneebone did not go with him to the victim's house. Kneebone did not have any tattoos on his stomach. Neither Kyle nor Jane Doe saw another man inside the house that day. None of the fingerprints lifted from the Griffiths's house and the Nissan Sentra matched ...