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People v. Paz

California Court of Appeals, Second District, Third Division

April 14, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE RODRIGUEZ PAZ, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of Los Angeles County No. LA076450 Michael V. Jesic, Judge. Affirmed as modified.

          Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

          LAVIN, J.

         INTRODUCTION

         Defendant Jose Rodriguez Paz was convicted of aggravated kidnapping, forcible rape, forcible sodomy, and related deadly-weapon and one-strike allegations after abducting H. Ramirez at knifepoint and assaulting her in an isolated parking lot.[1] On appeal, he contends: (1) there is insufficient evidence to support the sexual penetration element of sodomy; (2) trial counsel provided constitutionally deficient representation by failing to object to brief testimony about surveillance footage, failing to request an instruction about how to evaluate that testimony, and failing to object to the term rape kit; (3) the court had a sua sponte obligation to instruct the jury to abide by the interpreter's translation; (4) defendant's consecutive one-strike sentences are unauthorized because no reasonable trier of fact could have concluded he had a sufficient opportunity to reflect during the attack; and (5) he must be resentenced because the court failed to state its reasons for imposing upper terms for two enhancements.

         In the published portion of this opinion, we hold that the sexual penetration element of sodomy requires penetration past the buttocks and into the perianal area, but does not require penetration beyond the perianal folds or anal margin. We conclude the evidence before us is sufficient to establish that element. In the unpublished portion of the opinion, we reject defendant's remaining arguments, modify the judgment to clarify the statutory basis for defendant's sentence, and affirm as modified.

         PROCEDURAL BACKGROUND

         By amended information filed April 20, 2015, defendant was charged with aggravated kidnapping (Pen. Code, § 209, subd. (b)(1); count 2);[2] kidnapping (§ 207, subd. (a); count 3); forcible rape (§ 261, subd. (a)(2); count 4); and sodomy by force (§ 286, subd. (c)(2)(A); count 5).[3] As to counts 2 and 3, the information alleged that defendant personally used a knife (§ 12022, subd. (b)(1)). As to counts 4 and 5, the information alleged that defendant used a deadly weapon in the commission of a sex offense (§ 12022.3, subd. (a)); was armed with a deadly weapon in the commission of a sex offense (§ 12022.3, subd. (b)); kidnapped the victim within the meaning of the One Strike Law (§ 667.61, subd. (a), (d)(2) [movement substantially increased risk of harm], (e)(1) [simple kidnap]); and used a deadly weapon within the meaning of the One Strike Law (§ 667.61, subds. (a), (e)(3)). The information also alleged two prison priors (§ 667.5, subd. (b)). Defendant pled not guilty and denied the allegations.

         After a bifurcated trial at which the victim testified with the assistance of a Spanish-language interpreter and defendant did not testify, the jury found defendant guilty of all counts and found the allegations true. Defendant admitted the prior convictions.

         After a contested hearing, the court sentenced defendant to 70 years to life. The court selected count 4 (§ 261, subd. (a)(2); rape) as the base term and sentenced defendant to 35 years to life-a one-strike term of 25 years to life (§ 667.61, subds. (a), (d)) plus the high term of ten years for the deadly-weapon enhancement (§ 12022.3, subd. (a) [personal use]). The court imposed an identical sentence for count 5 (§ 286, subd. (c)(2)(A)), to run consecutively. The court stayed count 2 (§ 209, subd. (b)(1)) and its related enhancement under section 654 and dismissed count 3 (§ 207, subd. (a)) because it was a lesser-included offense of count 2. The court struck the prison priors (§ 667.5, subd. (b)).

         Defendant filed a timely notice of appeal.

         FACTUAL BACKGROUND

         On August 16, 2012, sometime before sunrise, Ramirez left her home in Van Nuys and walked toward her bus stop on Van Nuys Boulevard. Suddenly, a man later identified as defendant grabbed her from behind and put her in a chokehold. He told her to walk. Ramirez struggled but was unable to get free. Defendant pushed her across the street; he remained behind her, with his arm around her neck. As Ramirez continued to struggle, defendant grabbed her hand and placed it on a knife he held to her back; he said he would stab her if she stopped walking. Defendant took Ramirez several blocks away to an alley adjacent to an apartment building on Victory Boulevard. They walked down the alley to a parking area in back. The parking area-essentially a large carport-was deserted.

         Defendant directed Ramirez to the back corner between a wall and a parked car. He told her to undress. When she refused, defendant removed her pants and underwear. He repeatedly told Ramirez to lie down, but she refused. Defendant, who was standing behind her, touched “behind” Ramirez with his penis and “started having anal sex with [her].” The act caused her pain. She told defendant he was hurting her, but he did not stop. At some point, defendant pushed Ramirez to the ground and penetrated her vagina with his penis.

         When Ramirez saw headlights from a car driving by, she told defendant the police were on their way. He stopped the assault and said, “Tell him I'm your boyfriend.” Ramirez agreed. Then she got dressed and walked back to the street. Defendant caught up with Ramirez and demanded her phone, but she refused. She told defendant to leave, then crossed the street and tried to get help from a passerby. When the woman ignored her, Ramirez called her sister, who drove her to the police station.

         At around 9:00 a.m., officers drove Ramirez in a police car as she directed them to the site of her abduction, along the path defendant forced her to walk, and to the parking lot where the attack occurred. Ramirez showed the officers the exact location of the assaults, and the officers secured the scene and dusted a nearby car for fingerprints; the prints were later matched to defendant.

         At about 10:00 a.m., officers took Ramirez to a medical facility, where forensic nurse examiner Cynthia Urena examined her. Urena observed an abrasion on Ramirez's vaginal vestibule and a bruise to the hymen; both injuries were caused by force, pressure, and movement. Ramirez also had two lacerations in her perianal folds, both of which were caused by blunt force. Urena collected swabs from Ramirez's face, mouth, neck, vagina, cervix, perianal area, and rectum. DNA extracted from the semen found in Ramirez's vagina matched defendant's DNA.

         CONTENTIONS

         Defendant contends there is insufficient evidence to support his sodomy conviction because the prosecution failed to establish the “element of anal penetration by a penis” beyond a reasonable doubt. He also argues he received ineffective assistance of trial counsel because counsel failed to object to testimony about out-of-court surveillance footage, failed to ask the court to instruct with CALCRIM No. 333 about lay opinion testimony, and failed to object to the prosecution's use of the term rape kit. Finally, he contends that the court had a sua sponte obligation to instruct the jury that it must abide by the interpreter's translation of Ramirez's testimony, and that his sentence is unauthorized because the court failed to state its reasons for imposing upper terms for two enhancements and lacked discretion to impose consecutive one-strike terms.

         DISCUSSION

         1.There was sufficient evidence of penetration to support count 5.

         Defendant contends there is insufficient evidence of anal penetration to support his conviction for sodomy by force (§ 286, subd. (c)(2)(A); count 5). He argues Ramirez “never testified that [defendant] put his penis inside her anus or rectum, ” and though there was evidence of trauma to Ramirez's perianal area, there was no injury to the anus itself. The People argue Ramirez's testimony that defendant “started having anal sex with” her is sufficient to satisfy the disputed element. As a matter of first impression, we conclude penetration beyond the buttocks and into the perianal folds is sufficient to establish the requisite penetration-namely, sexual penetration of the anal opening. Taken together, Ramirez's testimony and the injuries to the perianal folds were sufficient to support the verdict.

         Elements of sodomy

         A criminal defendant may not be convicted of a crime unless the prosecution proves every fact necessary for conviction beyond a reasonable doubt. (U.S. Const., 5th Amend.; U.S. Const., 14th Amend.; see Cal. Const., art. I, §§ 7, 15; In re Winship (1970) 397 U.S. 358, 364; Jackson v. Virginia (1979) 443 U.S. 307, 316.) This constitutional principle is so fundamental to our system of justice that criminal defendants are always “afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” (United States v. Powell (1984) 469 U.S. 57, 67.)

         To convict a defendant of forcible sodomy (§ 286, subd. (c)(2)(A)), the People must prove:

         the defendant committed an act of sodomy with another person;

         the other person did not consent to the act; and

         the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person.

         (§ 286, subd. (c)(2)(A).) Sodomy, in turn, “is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (§ 286, subd. (a), emphasis added.) Before we can determine whether there is sufficient evidence of sexual penetration, however, we must define that term.

         Sexual Penetration

         At common law, any act of sodomy was criminal. (4 Blackstone, Commentaries 215-216.) When California codified the common law, the new Penal Code contained the same blanket prohibition. Section 286 provided, “Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment ….” (§ 286, as enacted by Pen. Code of 1872.) The codifiers also enacted a companion statute, section 287, which provided, “Any sexual penetration, however slight, is sufficient to complete the crime against nature.” (§ 287, as enacted by Pen. Code of 1872; see People v. Martinez (1986');">1986) 188 Cal.App.3d 19');">188 Cal.App.3d 19 [discussing history of sodomy statute and penetration requirement].) In this regard, section 287 mirrored section 263, which provided that in cases of rape, “Any sexual penetration, however slight, is sufficient to complete the crime.” (§ 263, as enacted by Pen. Code of 1872.)[4]

         The Legislature did not decriminalize sodomy until 1975, when it limited section 286 to three specified circumstances. (Stats. 1975, ch. 71, § 7, p. 133.) At the same time, it amended section 287 to refer to “sodomy” rather than “the crime against nature.” (Stats. 1975, ch. 71, § 9, p. 134.) Although section 287 was subsequently consolidated into section 286 (Stats. 1991, ch. 144, § 2, p. 1353), the Legislature has not made any other change to the text.

         Despite these amendments, section 286 still does not define sexual penetration-but section 289 does. Section 289 provides: “ ‘Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” (§ 289, subd. (k)(1), emphasis added.)

         Section 289, penetration by object, was enacted in 1978 to correct the disparate treatment accorded different forms of nonconsensual vaginal and anal penetration.[5] (Stats. 1978, ch. 1313, § 1, p. 4300; Health & Welf. Agency, Enrolled Bill Rep. on Sen. Bill No. 1640 (1977-1978 Reg. Sess.) Aug. 17, 1978, p. 1 (hereafter Enrolled Bill Rep.) [“The measure was introduced … to correct a deficiency in existing law.”].) Until that point, a defendant who used his penis to penetrate a victim could be convicted of rape or sodomy-but a defendant who used an object to commit the same act could not. (People v. Harrison (1989) 48 Cal.3d 321, 327-328.)

         Because section 289 was enacted to correct this problem-not to create a wholly novel offense-it shares “a very close relationship” with the rape and sodomy statutes. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1369-1370; Enrolled Bill Rep., supra, p. 1 [bill “was substantially amended during the course of hearings so that its language parallels existing forcible sodomy and oral copulation statutes. … Its main benefit is to make more specific the elements which constitute this offense, thus allowing for more effective prosecution.”]; Assem. Com. on Crim. J., Analysis of Sen. Bill. 1640 (1977-1978 Reg. Sess.) as amended Aug. 14, 1978, p. 2');">p. 2 [“The language of this bill currently parallels the language of the forcible sodomy and oral copulation statutes.”].) In short, the Legislature did not intend to create a new standard; it simply made explicit what had theretofore been implicit.[6] (See People v. Martinez, supra, 188 Cal.App.3d at p. 2');">p. 25 [“ ‘when the Legislature enacts a law “framed in the identical language” of a previous law on the same subject, it is presumed that the new law has the same fundamental meaning as the old law.' [Citation.]”].)

         As if to underscore that point, in 1986');">1986, the Legislature tried to bring additional consistency to the four “major sex offenses of rape, sodomy, oral copulation, and sexual penetration” by criminalizing the same conduct in each offense. (People v. White (2017) 2 Cal.5th 349, 358-359 (White); see id. at pp. 357-360 [discussing parallel construction of sex crime statutes]; see also Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3485 (1985-1986');">1986 Reg. Sess.) as amended June 30, 1986');">1986, p. 2');">p. 2 [“This bill would conform the criteria used to determine the commission of each of the four major sex offenses”]; Sen. Com. on Rules, Analysis of Assem. Bill No. 3485 (1985-1986');">1986 Reg. Sess.) as amended Aug. 20, 1986');">1986, p. 5 [bill's “author believes that the ‘circumstantial criteria used to determine the commission of each of the four major sex offenses …' should be consistent.”].) Lawmakers hoped that by standardizing the substantive elements of each offense, they could “reduce the potential for dismissal of cases containing circumstances inadvertently omitted from the definition of the specific crime.” (Sen. Com. on Rules, supra, at p. 2');">p. 2.)

         In light of this intent, the California Supreme Court recently construed four sex offense statutes-rape (§ 261), oral copulation (§ 288a), sodomy (§ 286), and object penetration (§ 289)-as reflecting a consistent legislative scheme despite their different language. The Court explained: “Substantively, the provisions regarding the four major sex crimes parallel each other. The conduct and mental state of the perpetrator … that, when accompanying the acts …, transform these sexual acts into crimes are essentially identical.” (White, supra, 2 Cal.5th at p. 357.) Though White did not specifically hold that section 289 applies to the other offenses, the opinion compels that result. (See also People v. Harrison, supra, 48 Cal.3d at pp. 327-334 [discussing penetration requirements in rape and sodomy statutes, both of which “relate to the same subject matter-unlawful penetrations of the genitals and anus”]; People v. Quintana, supra, 89 Cal.App.4th at pp. 1369 [“It would be anomalous and confusing if … ‘sexual penetration' in section 289 meant something other than ‘sexual penetration' in section 263, where those words first appeared.”], 1370 [section 289 “is a form of rape, and there is no reason to distinguish the degrees of penetration required to commit different forms of this same crime.”]; People v. Romanowski (Mar. 27, 2017, S231405) __ Cal.5th __ [2017 Cal. Lexis 2326, *21-22] [definitional statute that “sets the ground rules for how theft crimes are adjudicated” applies to crimes “set out in a variety of other sections.”].)

         We therefore hold that the definition of sexual penetration in section 289 applies equally to the sexual penetration element of section 286.[7] Section 289 defines sexual penetration, in relevant part, as “the act of causing the penetration, however slight, of the … anal opening.” (§ 289, subd. (k)(1).) Thus, the question before us is whether there is sufficient evidence that defendant's penis penetrated Ramirez's anal opening.[8]

         Anal Opening

         Defendant contends he touched-but did not penetrate-Ramirez's anal opening.[9] But the distinction between touching and penetration depends on the meaning of anal opening-and contrary to defendant's implication, that term is not synonymous with anus, either anatomically or legally. For the reasons discussed below, we conclude forcible sodomy requires something more than penetration of the buttocks (see State v. A.M. (Wash.Ct.App. 2');">p. 2011) 163 Wash.App. 414');">163 Wash.App. 414 [penetration of buttocks not sufficient]; State v. Wells (Ohio 2001) 740 N.E.2d 1097');">740 N.E.2d 1097 [same]), but does not require penetration past the anal verge or into the anal canal.

         Plain Meaning

         Unlike sexual penetration, the Penal Code does not define anal opening. The term's meaning, therefore, is a “question[] of statutory interpretation that we must consider de novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71.) As with any case involving statutory interpretation, our primary goal is to ascertain and effectuate the lawmakers' intent. (People v. Park (2013) 56 Cal.4th 782, 796.) To determine intent, we first examine the statutory language and give the words their ordinary meaning. (Ibid.) “Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning.” (§ 7, subd. (16); see People v. Gonzales (Mar. 23, 2017) __ Cal.5th __ [2017 Cal. Lexis 2091, *19-20 & fn. 12] [because term of art “must be understood as it is defined, not in its colloquial sense, ” courts must assume the Legislature knew the ramifications of its word choices].)

         If statutory language is unambiguous, its plain meaning controls; if the statutory language is ambiguous, “ ‘ “we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.” [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]' ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321.) We begin by examining the term's plain meaning.[10]

         The anus contains two sections-a mucosa-lined anal canal at the top and an epidermis-lined perianal margin at the bottom. (Internat. Agency for Research on Cancer, World Health Organization Classification of Tumours. Pathology and Genetics of Tumours of the Digestive System (Aaltonen & Hamilton edits., 2000) Tumours of the Anal Canal, p. 147 (hereafter IARC).) At the top, the rectum connects the large intestine to the anal canal. (Taber's Cyclopedic Medical Dictionary (16th ed.1989) p. 1570.) At the bottom, the anal verge connects the end of the anal canal to the anal margin. (Mills (3d ed. 2007) Histology for Pathologists, ch. 27, p. 664 (hereafter Mills) [“The anal verge can be defined as the point (line) where the walls of the anal canal come in contact in their normal resting state.”]; Cal. Off. of Emergency Services, Cal. Medical Protocol for Examination of Sexual Assault and Child Sexual Abuse Victims (2001) appen. N (hereafter OES, Medical Protocol) [defining anal verge as “the tissue overlying the subcutaneous external anal sphincter at the most distal portion of the anal canal (anoderm) and extends exteriorly to the margin of the anal skin.”].)

         “The anal margin begins approximately at the anal verge …. It represents the transition from the squamous mucosa to the epidermis-lined perianal skin, and extends to the perianal skin.” (Ryan & Willett (2011) Classification and Epidemiology of Anal Cancer, figure 1.) The outer “boundary [of the anal margin] is indistinct …, and anatomically;” its location varies by person. (American Joint Committee on Cancer (6th ed. 2002) Staging Manual, ch. 13, p. 125.)

         “The perianal skin (the anal margin) is defined by the appearance of skin appendages.” (IRAC, supra, at p. 147; see Mills, supra, at p. 670 [“At the lower border of the anal canal, the dull, wrinkled perianal skin with hair follicles is obvious”].) However, the “perianal region is not well defined” (Mills, supra, at p. 667), and “[t]here exists no generally accepted definition of its outer limit.” (IRAC, supra, at p. 147; see OES, Medical Protocol, supra, at appen. M, p. 2');">p. 27 [defining perianal skin folds as “[w]rinkles or folds of the perianal skin radiating from the anus, which are created by the contraction of the external anal sphincter.”].) Indeed, “much confusion continues about definitions and nomenclature” of these structures generally. (Mills, supra, p. 664; see, e.g., id. at p. 665 [“It would seem natural to start with a definition of the anal canal; but, because there are several definitions and new terms are still introduced, a description of the anatomical landmarks and epithelial zones may be the best introduction to this never-ending discussion.”]; Rociu et. al, Normal Anal Sphincter Anatomy (2000) 217 Radiology 395-401, 399 [“There have been many contradictory and often confusing theories of the anatomy of this region.”].) It appears, therefore, that the terms anal verge, anal margin, perianal area, perianal folds, and perianal skin all describe at least part of the anal opening-the outer boundary of the anus.

         Given that medical professionals cannot agree on what to call the areas between the rectum and the buttocks, it is not surprising that the courts-which until recently referred to sodomy in wholly euphemistic terms-have struggled as well. (See, e.g., People v. Gann (1968) 259 Cal.App.2d 706, 710 [“On account of the degrading nature of the crime of sodomy it is uniformly held that it is not necessary to describe the offense with the same particularity which is required in other crimes.”], 712 [“the commonly understood meaning of the euphemism, ‘infamous crime against nature, ' in ...


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