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People v. Torres

California Court of Appeals, First District, First Division

May 10, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
MIGUEL ANGEL TORRES, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          Alameda County Superior Court, No. H57417, Hon. Gloria Rhynes Judge.

          Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Rene A. Chacon and Julia Y. Je, Deputy Attorneys General for Plaintiff and Respondent.

          BANKE, J.

         A jury convicted defendant Miguel Angel Torres of one count of second degree robbery causing great bodily injury (Pen. Code, §§ 211, 12022.7, subd. (a)), [1] five counts of digital penetration (§ 289, subd. (a)(1)(A)), one count of sexual battery by restraint (§ 243.4, subd. (a)), and one count of forcible rape (§ 261, subd. (a)(2)). The trial court then found defendant had four prior convictions and sentenced him to eight consecutive 25-years-to-life sentences, for a total of 246 years to life.

         On appeal, defendant contends: (1) the evidence was insufficient to support the great bodily injury enhancement as to the robbery count; (2) the trial court abused its discretion in admitting irrelevant and prejudicial evidence; (3) the prosecutor committed misconduct during closing argument; (4) the trial court improperly imposed a life term for sexual battery by restraint; (5) the trial court improperly imposed consecutive sentences for the digital penetration convictions; and (6) the trial court erred in failing to stay the sentence on the sexual battery conviction.

         We affirm as to the first four issues, but conclude the trial court erred in ruling it was required under the Three Strikes law to impose consecutive sentences for the digital penetration and sexual battery convictions. As we discuss in the published portion of our opinion, in our view, the Three Strikes Reform Act of 2012 (commonly referred to as Proposition 36) largely left intact a sentencing court's limited discretion under the Three Strikes law to impose concurrent sentences for multiple felonies committed on the “same occasion” or arising from the “same set of operative facts, ” and therefore did not alter most of the long-established Three Strikes law sentencing rules set forth in People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix).[2] We therefore remand for resentencing on these convictions and the sexual battery by restraint conviction and otherwise affirm the judgment.

         I. Background

         In the spring of 2014, then 19-year-old Jane Doe participated in a cultural night production at the college she was attending. Afterwards, she attended a cast party at a restaurant and stayed until between 11:30 p.m. and midnight. She left in her car by herself and drove to her apartment. Unbeknownst to Doe, defendant, also in a car, followed her home from the restaurant.

         After Doe parked and began walking towards her apartment, she heard running behind her and “was struck in the back of [her] head.” She felt pain and “blacked out for a couple of seconds.” When she opened her eyes, she was face down on the ground.

         Defendant was on top of and behind her in “sort of like in a spooning type of position, ” and was grabbing her breast. His hand covered her mouth, and he said, “Give me your bag, and everything will be okay, ” and “Don't scream or I'll shoot you.” He then took Doe's purse off her shoulder and put it behind him, and began to touch her. He reached under her shirt and bra and touched her breast, and pulled her jeans down to her upper thigh. He then alternated inserting his fingers into Doe's vagina and anus in an “in-and-out motion, ” “[m]ore than one time.” Defendant pulled down his own pants and tried to put his erect penis inside her vagina. Doe could feel the pressure of the tip of his penis entering, but he “did not fully insert it inside”; he was thrusting “his penis against [her] vagina... lips.” Crying, Doe asked defendant why he was doing this, and he told her to “shut up.” At some point, he stopped thrusting with his penis and reinserted his fingers into her vagina and anus, with the same “in-and-out motion.” Defendant did not ejaculate. When the assault stopped, he told Doe “You've been a good girl, you will get to see your family again.” He then got up and said, “Don't turn around or I'll shoot you.”

         A witness who was at the apartment complex to pick up his girlfriend saw defendant struggling on the ground with a woman. Defendant then ran past him, got into a vehicle, and drove off.

         Once Doe heard defendant's footsteps retreating, she got up and went to her apartment, and then went to her landlord's room and told her what had happened. The two woke up Doe's other roommate (the landlord's daughter) who called the police. When the police arrived, Doe provided a statement and accompanied them to the hospital. There, staff performed a sexual assault rape trauma examination. Doe told the physician's assistant who performed the exam that she had been “ ‘[s]truck in [the] back of [the] head with [the] assailant's forearm' ” and thought the defendant had a gun but did not see one. Doe stated she had pain in her left hand and forearm, as well as her right knee and elbow. She suffered multiple superficial abrasions, including an abrasion on the “external genitalia area, ” as well as tenderness to the posterior fourchette. The examiner stated the findings she made during the examination were consistent with the history Doe provided.

         After the examination, Doe gave another statement to the police. She did not mention that she had “blacked out or that [she was] unconscious, ” but did in a statement she gave later in August. She also told her roommate that she “lost consciousness for a quick second.”

         Immediately after she got home from the hospital, Doe closed her Facebook account, which was under her actual name and contained photographs of herself.

         The next morning, Doe cancelled her credit and debit cards and shared her account information with police. Her credit card company then released a fraud report to law enforcement, which showed that her credit card had been used in an attempt to make a purchase the day after the assault.

         Multiple store surveillance cameras along the route Doe had taken to her apartment showed a car matching defendant's following behind.

         Defendant was then arrested and his vehicle towed and searched. Officers found Doe's Mickey Mouse watch, a women's cosmetic powder puff, and a package of Rhino 7 pills, a sexual stamina enhancement. Police also seized defendant's cell phone and found pictures of Doe from her Facebook account, which defendant had saved to his cell phone the day after the assault. Detectives also took buccal swabs and fingernail swabs.

         Steven Crotti, an expert in the area of “[f]orensic DNA analysis, ” testified he combined cuttings from two areas, which is common practice, and after traditional DNA typing failed, he forwarded the samples for Y-STR testing. Angela Meyers, also an expert in the area of “forensic DNA analysis, ” testified the Y-STR testing showed there were two male contributors to the sperm found in Doe's underwear. This included defendant's halotype, which is the same for all males in defendant's line.

         A clerk from a nearby store recognized defendant from his prior purchases of Rhino 7 pills. The clerk testified defendant came into the store and tried to make another purchase of the pills with Doe's credit card, but the card was declined. Defendant then tried to purchase the pills with his own card. That was also declined. Finally, he paid for the pills in cash.

         In jailhouse recordings, defendant admitted having Doe's wallet and asked a relative to remove items from his room and put them in the garage. When asked if any of the allegations were true, defendant replied “Yeah, ” but he denied hitting Doe or having a gun. He admitted using her credit cards. He also stated he had gotten Doe's pictures from Facebook by searching the name from her credit card, and he asked a relative to report his cell phone as stolen so they could delete his history.

         After a preliminary hearing, defendant was charged by information with one count of second degree robbery with an attached great bodily injury enhancement (§§ 211, 12022.7, subd. (a)-count 1), five counts of digital penetration (§ 289, subd. (a)(1)(A)-counts 2, 3, 4, 5, 8), one count of sexual battery by restraint (§ 243.4, subd. (a)-count 6), and one count of forcible rape (§ 261, subd. (a)(2)-count 7). The information also alleged four prior convictions and as to counts 2-5 and 7-8, that they were serious and violent felonies and require registration as a sex offender (§§ 667, subd. (c), 1192.7, subd. (c), 290). The jury found defendant guilty as charged, and the trial court found the prior convictions true.

         II. Analysis

         A. The Great Bodily Injury Finding

         Defendant contends “the momentary black out Doe suffered as she was stunned by the blow from behind was not a ‘loss of consciousness' sufficient to sustain a finding of great bodily injury” under section 12022.7.

         Section 12022.7 provides in pertinent part: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” (§ 12022.7, subd. (a).) The statute defines “ ‘great bodily injury' ” as a “significant or substantial physical injury.” (§ 12022.7, subd. (f).)

         “ ‘In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] “A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.” ' ” (People v. Cunningham (2016) 244 Cal.App.4th 1049, 1053.)

         Though section 12022.7, itself, provides no definition of “great bodily injury, ” the phrase is “ ‘ “essentially equivalent” ' ” to “ ‘serious bodily injury' ” referred to in section 243, subdivision (f)(4). (People v. Knoller (2007) 41 Cal.4th 139, 143, fn. 2; People v. Wade (2012) 204 Cal.App.4th 1142, 1149-1150; People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375.)

         Section 243, subdivision (f)(4) defines “serious bodily injury” as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness....” Therefore, a victim's loss of consciousness, in and of itself, may support a finding of great bodily injury. (See People v. Wade, supra, 204 Cal.App.4th at pp. 1146-1149 [choking victim's loss of consciousness was enough to constitute serious bodily injury, even though victim did not know how long she was unconscious and required no medical treatment].)

         Defendant acknowledges the equivalency of “great bodily injury” and “serious bodily injury, ” but asserts that such injury “must still be a ‘significant or substantial injury' ” and that it “does not mean a simple, momentary ‘black out' as one is surprised or struck.” However, there is no durational test for loss of consciousness. (See People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750 [noting there is no particular standard for severity in section 12022.7]; People v. Le (2006) 137 Cal.App.4th 54, 58-59.)

         Moreover, “[i]t is well settled that the determination of great bodily injury is essentially a question of fact, not of law, ” and thus is a question for the jury. (People v. Escobar, supra, 3 Cal.4th at p. 750.) “ ‘ “If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ' ” (Ibid.)

         Here, defendant ran up behind Doe and struck her so hard she experienced pain, blacked out, and came to only after she was face down on the ground. This trauma suffices to ...


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