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People v. Brewer

California Court of Appeals, Fifth District

November 17, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
JEREMIAH CHARLIE BREWER, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         APPEAL from a judgment of the Superior Court of Fresno County No. F12904169. W. Kent Hamlin, Judge.

          J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          DETJEN, J.

         INTRODUCTION

         At the conclusion of a court trial, Jeremiah Charlie Brewer (defendant) was convicted of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A); count 1), assault with intent to commit rape or forcible sexual penetration during the commission of first degree burglary (id., § 220, subd. (b); count 2), and kidnapping to commit rape or forcible sexual penetration (id., § 209, subd. (b)(1); count 3). The court found true allegations in count 1 that defendant substantially increased the risk of harm to the victim inherent in the offense by kidnapping her (id., § 667.61, subds. (a), (d)(2)), committed the offense during the commission of first degree burglary with the intent of committing sexual penetration by force (id., § 667.61, subds. (a), (d)(4)), and kidnapped the victim to accomplish the offense (id., § 667.61, subds. (b), (e)(1)). Defendant was sentenced to an unstayed term of 25 years to life in prison.

         In our original unpublished opinion, we held: (1) There was sufficient evidence defendant substantially increased the risk to the victim within the meaning of Penal Code sections 209, subdivision (b)(1), and 667.61, subdivision (d)(2) by moving her within her own apartment; (2) The fact the allegation under subdivision (d)(2) of section 667.61 of the Penal Code was found true does not require reversal of the true finding under section 667.61, subdivision (e)(1) of that code; and (3) Defendant's sentence does not constitute cruel and/or unusual punishment under the federal and state Constitutions, and his trial attorney was not ineffective for failing to object on that ground. Accordingly, we affirmed.

         Defendant petitioned for rehearing, arguing that Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57 or the Act), enacted by the voters on November 8, 2016, applies retroactively to his case and requires a remand to the juvenile court system for further proceedings.[1] We granted rehearing to determine whether defendant is entitled to relief under the Act. In the published portion of this opinion, we conclude Proposition 57 does not apply retroactively to defendant's case. In so holding, we reject claims the Act reduces the range of punishment for all juvenile offenders by giving the juvenile court exclusive jurisdiction over all juveniles, and creates a previously unavailable affirmative defense. In the unpublished portion, we adhere to our original analysis and again find no error. Accordingly, we again affirm.

         FACTS[*]

         On February 10, 2012, Elizabeth F., a college student, lived in a first-floor apartment near California State University, Fresno. The kitchen of the apartment adjoined the living room. There was a window behind the kitchen sink, as well as windows near a sliding glass door in the living room. At the time of events, the blinds to the window behind the sink were open, as were the blinds to the sliding door. There was a public walkway outside the windows. A person could look through the windows into the apartment from that walkway.

         At 4:00 p.m., Elizabeth was alone in the apartment, washing dishes, when she looked up through the window behind the sink and saw a male passing by outside. As the male walked by, he took a couple of steps back, looked through the window blinds, and kept going. Elizabeth saw him a couple of minutes later by the windows near the living room.

         The male, who had walked by twice, stopped the second time he passed by, looked back and forth a couple of times, and knocked on Elizabeth's door. At first, Elizabeth thought it was the maintenance man, whom she had called about an hour earlier. When she answered the door, however, defendant - the person who had walked by twice earlier - was standing there.

         Defendant asked Elizabeth if her husband was at home. She replied she was not married and asked if he was lost. Defendant said he was looking for his cousin and asked to use Elizabeth's phone. Elizabeth let defendant use her cell phone. Defendant stayed outside at first, but before he finished the call, he signaled that he wanted to enter. Elizabeth stepped back and defendant entered her apartment.

         Inside Elizabeth's apartment, defendant handed back her cell phone. She asked defendant to walk out. Defendant turned away as though he was leaving, but slammed the apartment door shut. He immediately grabbed Elizabeth's shoulders and pushed her up against the wall, moving her 10 to 12 feet. Elizabeth asked defendant what he was doing and why. Defendant did not answer.

         Elizabeth tried to fight defendant off. Defendant looked toward the window, then turned and saw Elizabeth's bedroom.[2] As Elizabeth struggled with him, defendant forced her to her bedroom. Elizabeth tried to yell, but defendant covered her mouth. He pushed Elizabeth onto the bed in her bedroom. Elizabeth kept telling defendant to stop and asked him why he was doing this. She also yelled for help. The windows and blinds in Elizabeth's bedroom were closed. Although the sliding door and windows in the living room area were open because Elizabeth had been mopping and wanted to air out her apartment, Elizabeth was farther away from the walkway and apartment entrance when in her bedroom than when in the living room.

         Defendant pulled off Elizabeth's basketball shorts and underwear. Elizabeth became more frightened and tried yelling “Fire, ” but “it didn't come out” and so she yelled for defendant to stop. Defendant kept Elizabeth in place on the bed with one hand, while trying to remove his pants with the other. When he was unsuccessful, he penetrated her vagina with his first two fingers past the second knuckle of the fingers for 15 to 20 seconds.

         To get defendant to stop, Elizabeth told him a couple of times that her father was a cop. Then Elizabeth noticed the sound of the dishwasher and running water. She told defendant her boyfriend was in the shower. Elizabeth repeated this multiple times and told defendant her boyfriend was going to kill him. Defendant stopped, got up, and left through the front door. Elizabeth ran into her bathroom, locked the door, and called 911.

         Fresno Police Officer Hansen was dispatched to Elizabeth's apartment immediately after the assault. Hansen took a statement from Elizabeth and described her emotional state as being “extremely upset.” Elizabeth was crying the entire time. A sexual assault examination subsequently was performed. Elizabeth suffered bruises from the assault.

         Hansen retrieved a phone number from Elizabeth's phone with an area code of 405, the Oklahoma City area. Detective Gray, who was assigned to the sexual assault unit, called the number and left a message. On March 6, 2012, Gray spoke to a woman named Malasia G., who said she lived in Oklahoma City. Malasia said she knew someone on Facebook who lived in Fresno named Jeremiah Brewer. Gray determined defendant lived in an apartment complex not far from Elizabeth. Shown a photographic lineup, Elizabeth identified defendant as her assailant.

         Gray arrested defendant and brought him back to police headquarters for interrogation. Defendant was advised of and waived his constitutional rights. After initially denying he was involved in the assault, defendant admitted he came into Elizabeth's apartment and used her cell phone. Defendant said Elizabeth let him into the apartment. Defendant denied touching Elizabeth first. Defendant said Elizabeth “came on” to him and led him to the bedroom, and they lay on the bed together. Defendant denied forcible conduct or rape and said he touched her leg “and stuff like that.” He also denied grabbing Elizabeth and dragging her into the bedroom.

         Defendant initially denied that things got out of hand, but admitted Elizabeth apparently changed her mind and pushed him away. Defendant again denied raping Elizabeth and said he did not remember putting his fingers into her vagina. When he was asked if things changed after he placed his finger inside Elizabeth's vagina, defendant replied, “Yeah.” Defendant admitted things got out of hand but continued to deny he raped Elizabeth and said he guessed she did not want him to place his fingers inside her vagina. Defendant wrote a letter apologizing to Elizabeth.

         DISCUSSION

         1. Sufficiency of Evidence of Kidnapping to Commit Sex Offense[*]

         Introduction

         Defendant contends there was insufficient evidence to: (1) support his conviction for kidnapping to commit forcible sexual penetration (Pen. Code, § 209, subd. (b)(1)); (2) support the trial court's true findings in count 1 that in committing sexual penetration by force he kidnapped the victim (id., §§ 289, subd. (a)(1)(A), 667.61, subd. (e)(1)); and (3) establish he kidnapped the victim by employing movement that substantially increased the risk of harm to the victim (id., § 667.61, subd. (d)(2)). Defendant argues any movement was only incidental to the commission of the underlying sexual offense and did not substantially increase the risk to the victim. We disagree.

         Legal Principles

         When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same whether the People primarily rely on direct or on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)

         Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before a reviewing court can set aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

         Penal Code section 209, subdivision (b) does not require, for an aggravated kidnapping, proof the movement of the victim substantially increased the risk of harm to the victim. It does, however, require proof the movement was more than merely incidental to the enumerated offense and increased the risk of harm above that inherent in said offense. (People v. Robertson (2012) 208 Cal.App.4th 965, 978-982; see People v. Vines (2011) 51 Cal.4th 830, 869-871.)[3]

         “The One Strike law, [Penal Code] section 667.61, requires a sentence of 25 years to life in prison whenever a defendant (1) is convicted of a current offense specified in subdivision (c), and (2) either ‘one or more of the circumstances specified in subdivision (d)' or ‘two or more of the circumstances specified in subdivision (e)' are present. ([Pen. Code, ] § 667.61, subd. (a).)” (People v. Hammer (2003) 30 Cal.4th 756, 761, fns. & italics omitted.) The law requires a sentence of 15 years to life in prison whenever a defendant (1) is convicted of a current offense specified in subdivision (c), and (2) “one of the circumstances specified in subdivision (e)” is present. (Pen. Code, § 667.61, subd. (b).)

         Sexual penetration, in violation of Penal Code section 289, subdivision (a), constitutes an offense specified in subdivision (c)(5) of Penal Code section 667.61. Penal Code section 667.61, subdivision (e)(1) incorporates by reference section 209 of the Penal Code, as it sets out the following circumstance applicable to the offenses specified in subdivision (c): “Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.” Penal Code section 667.61, subdivision (d)(2) sets out the following circumstance applicable to the offenses specified in subdivision (c): “The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).” Thus, subdivision (d)(2) of section 667.61 of the Penal Code requires a substantial increase of risk of harm from the defendant's asportation of the victim beyond that necessarily present in the underlying sexual offense. Any substantial asportation involving forcible control of the victim satisfies the risk of harm test. (People v. Jones (1997) 58 Cal.App.4th 693, 713.)

         A seminal case from our Supreme Court relied on by defendant is People v. Daniels (1969) 71 Cal.2d 1119 (Daniels).[4] It held that aggravated kidnapping for robbery requires a movement of the victim that (1) is not merely incidental to the commission of robbery, and (2) substantially increases the risk of harm over and above what is present in the crime of robbery itself. (Daniels, supra, at p. 1139.) In Daniels, though there was a movement of some distance, it was inside a building and the court found the movement incidental. (Id. at p. 1140.)

         In People v. Rayford (1994) 9 Cal.4th 1 (Rayford), the high court observed that in determining whether the movement was merely incidental to the crime-the first prong of the Daniels analysis-the trier of fact must consider the scope and nature of the movement. This includes the actual distance the victim is moved; however, there is no minimum number of feet a defendant must move a victim to satisfy this requirement. (Rayford, supra, at p. 12.) The court noted that in Daniels, the movement involved was merely incidental where, in the course of robbing and raping three women in their own homes, the defendants forced the victims to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet. (Rayford, supra, at p. 12; see Daniels, supra, 71 Cal.2d at pp. 1126, 1140.)

         Rayford explained that the second prong of Daniels refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in the underlying offense. (Rayford, supra, 9 Cal.4th at p. 13.) “This includes... such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.]” (Id. at pp. 13-14.) It also includes both the victim's desperate attempts to extricate himself or herself as well as unforeseen intervention by third parties. (Id. at p. 13.) That these dangers do not in fact materialize does not mean the risk of harm was not increased. (Id. at p. 14.)

         The sexual assault victim in Rayford was forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall beside a small tree, 34 feet from the street. The wall, tree, and bushes at the end of the wall limited any chance the victim might be seen by passersby. An area beyond the wall bordered a two-lane street, but was undeveloped. Although there was some light, there was no evidence whether the victim and defendant were detectable from the street. (Rayford, supra, 9 Cal.4th at p. 23.) The court held this constituted sufficient evidence of asportation from which the jury could reasonably conclude the victim's forcible movement for this distance and under these circumstances was not merely incidental to the commission of attempted rape and substantially increased the victim's risk of harm. (Ibid.)

         Several cases decided after Rayford have found an increased risk of harm to the victim of a sexual assault who was moved a short distance to a more secluded location within a building or to a space farther from public view. In People v. Dominguez (2006) 39 Cal.4th 1141, 1153, the defendant moved the victim in the middle of the night from the side of a road to a spot in an orchard 25 feet away and 10 to 12 feet down a steep hill. In People v. Shadden (2001) 93 Cal.App.4th 164, 167-170, the defendant moved the owner of a video store nine feet from a space behind the store counter to a back room where the defendant was able to close the door and keep the victim out of public view. In People v. Diaz (2000) 78 Cal.App.4th 243, 248-249, the defendant moved the victim from a well-lighted area on the sidewalk to the back of a recreation center, a location still outdoors but more secluded from public view. In People v. Jones (1999) 75 Cal.App.4th 616, 628-630, the victim was moved by the defendant across a parking lot and pushed into her car where, although the car alarm was sounding, the victim was no longer in public view. In People v. Smith (1995) 33 Cal.App.4th 1586, 1594, the defendant moved the victim 40 to 50 feet from a driveway open to a view from the street, into a camper. In People v. Salazar (1995) 33 Cal.App.4th 341, 344, 348, the victim was moved 29 feet from an outside walkway to the bathroom of a motel room, where the defendant closed the door. In each of these cases, the defendant's conduct was held to have caused increased risk of harm to the victim because of how and where the defendant moved the victim to commit a sexual assault.

         “[E]ach case must be considered in the context of the totality of its circumstances.” (People v. Dominguez, supra, 39 Cal.4th at p. 1152.) In the present case, Elizabeth's apartment was on the first floor of her apartment building. Elizabeth testified she was cleaning the common areas of her apartment with the window blinds open over the sink. The blinds for the sliding glass door were also open, as was the sliding glass door itself. From these windows and the door, anyone walking by Elizabeth's apartment could look in and view the kitchen and living room area. After entering the apartment, defendant slammed the apartment door shut, grabbed Elizabeth, and forced her, against her struggles, about 10 feet to the wall. He then looked toward the window because the blinds were open, turned and saw Elizabeth's bedroom, and forced Elizabeth to her bedroom. The windows and blinds in the bedroom were closed, and the bedroom was farther away from the walkway and entrance into the apartment than was the living room. Once in the bedroom, defendant began his sexual assault.

         The facts in the instant action demonstrate defendant moved Elizabeth twice, the second movement leading her into a secluded room not visible from outside the apartment. This was more movement than necessary to effectuate the offense of digital penetration. The movement also significantly increased the risk of harm to Elizabeth. It greatly reduced the possibility a passerby would see defendant's assault or at least hear Elizabeth's cries for help. The facts of this case are as strong as, if not stronger than, the facts found to show an increased risk of harm to the victims in Rayford, Dominguez, Shadden, Diaz, Jones, Smith, and Salazar. We reject defendant's contention his movement of Elizabeth was only incidental to his sexual assault and did not pose a significantly greater risk of harm to her.

         2. True Findings of Multiple Subdivisions of Penal Code Section 667.61[*]

         Defendant contends the trial court's true findings under subdivisions (d)(2) and (e)(1) of Penal Code section 667.61 cannot both stand. According to defendant, subdivision (e)(1) is expressly inapplicable where subdivision (d)(2) applies. The People say the language of Penal Code section 667.61, subdivision (e)(1) is definitional and does not preclude an additional finding under ...


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