Filed 4/29/21 P. v. Martin CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077515
Plaintiff and Respondent,
v.
(Super. Ct. No. SCN383129)
EDWIN LAMAR MARTIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael D. Washington, Judge. Affirmed and remanded with directions.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Edwin Martin of sexually assaulting three vulnerable
victims—a runaway teen and two homeless women—and falsely imprisoning
one of them. The trial court sentenced Martin to three consecutive 15-to-life
terms (one for each victim), plus three years for the false imprisonment.
Martin raises two issues on appeal. First, he contends the trial court
erred by denying his motion for a mistrial after the prosecutor violated an in
limine order that required her to admonish witnesses not to testify that
Martin was known to have guns, and a victim testified that Martin displayed
a gun before he sexually assaulted her. We conclude the trial court acted
within its discretion by denying the mistrial motion, and instead striking the
offending testimony and admonishing the jury to disregard it.
Second, Martin contends the trial court violated Penal Code section 654
(further undesignated statutory references are to the Penal Code) by
punishing him for both falsely imprisoning a victim and forcing her to orally
copulate him while he falsely imprisoned her. We agree, and direct the trial
court to stay the sentence on the false imprisonment conviction.
In another sentencing issue, Martin and the Attorney General agree
the trial court erred by staying certain sentences under section 654 instead of
imposing them concurrently with the principal term. We agree, and direct
the trial court to sentence Martin accordingly.
In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Charges
In February 2018, Martin was charged with six offenses arising from
his sexually assaulting three victims: forcible rape of 16-year-old G.M.
(§ 261, subd. (a)(2); count 1); forcible rape (count 2) and forcible oral
copulation (former § 288a, subd. (c)(2)(A) [now § 287]; count 3) as to Tracy;
2
and two counts of forcible oral copulation (counts 4 and 5) and one count of
false imprisonment by violence (§§ 236, 237, subd. (a)) as to Norma. Each sex
offense carried a multiple-victim enhancement allegation subjecting Martin
to a potential sentence of 15 years to life, per count. (§ 667.61, subds. (b), (c),
(e).)
Prosecution Case
G.M.
On December 20, 2017, 16-year-old G.M. was spending the day in a
park in Escondido after having run away from home the night before. Martin
approached her and asked if she wanted to smoke marijuana. G.M. initially
declined, but eventually accepted the invitation. Although they had planned
to smoke the marijuana in the back of the park, Martin instead led G.M. to
his car and drove her to his apartment complex.
G.M. “had a . . . bad feeling,” but followed Martin into his apartment
and bedroom, where he gave her a pipe with a packed bowl of marijuana.
G.M. sat on the edge of Martin’s bed smoking the marijuana while he went to
the bathroom. Martin returned to the bedroom naked, so G.M. stood up.
Martin put his hands on G.M.’s shoulders and pushed her onto his bed with
“a lot” of force. He pulled down her pants and inserted his penis into her
vagina. G.M. told Martin “no” several times, “tried to get up,” and “tried to
force him off” of her, but she could not “get out from under him.” Martin
ejaculated inside of G.M. and told her “it was his fantasy” to impregnate her.
Martin eventually took G.M. back to the park. About one week later,
G.M. disclosed the rape to a counselor, and then to police.
G.M. testified she did not know either of Martin’s other victims in this
case.
3
Tracy
Tracy met Martin sometime in 2017 while she was living on the streets
in Escondido. In November 2017, she consensually orally copulated him at
his apartment.
On the night of January 9, 2018 (about three weeks after Martin raped
G.M.), Martin offered Tracy $50 to clean his apartment because his mother,
with whom he lived, was sick. Tracy accepted, but told Martin she “was just
going to clean”—she “wasn’t going to do anything else” because their prior
sexual encounter, though consensual, “wasn’t a pleasant experience.”
Martin let Tracy shower at his apartment before cleaning. When she
got out of the shower, he handed her a towel, “rough[ly]” took her by the arm,
put his hand over her mouth, and brought her to his bedroom. Tracy, who is
4’11”, did not resist because she has “an extensive history of sexual abuse”
and knew that if she resisted she would “get hurt.”
Once inside Martin’s bedroom, he shut the door and “barricaded it with
some type of metal pole” so Tracy could not open it. Martin helped Tracy onto
his bed, used one hand to hold her legs over her head in a “painful” position,
used his other hand to cover her mouth, and inserted his penis into her
vagina. Although Tracy “didn’t say no,” she “resisted, but didn’t pull away.”
She testified “it felt like . . . rape.”
After about 10 or 15 minutes, Martin took his hand off Tracy’s mouth,
“pulled [her] hair really tight,” “pushed [her] head down to his penis,” and
forced it into her mouth. Martin ejaculated in Tracy’s mouth and forced her
to swallow.
Martin dropped off Tracy at a park the next morning. She initially told
a park ranger she had been “assaulted” and “victimized,” but did not “go into
detail.” A few weeks later, Tracy reported the assault to police.
4
Tracy testified she did not know G.M., and was only a “casual
acquaintance[ ]” of Martin’s other victim in this case (Norma), who had
earlier introduced Tracy to Martin.
Norma1
Norma, a 38-year-old homeless woman, had an extensive history of
drug use and dealing with Martin.2 In the late hours of January 12 or early
morning hours of January 13, 2018 (a few days after Martin sexually
assaulted Tracy), Martin asked Norma if she wanted to smoke a “blunt” with
him. She said yes. They planned to buy rolling papers at a convenience
store, but Martin instead drove Norma to his apartment.
When Norma was hesitant to enter Martin’s apartment, he reassured
her he was “not a weirdo” and was “not going to do anything to [her].”
Although it “didn’t feel right” in her “gut,” Norma went with Martin into his
apartment through the back gate. Martin locked the gate and backdoor
behind them. Norma sat on a chair in Martin’s bedroom, and he locked the
bedroom door with a pole “that straddled the doorknob and went into the
ground.” Norma thought, “Oh, shit”—she “was in some kind of trouble”
because there were “[t]oo many locks.”
Martin seemed angry that Norma had been with other men but not
him. His demeanor became aggressive, and he showed her several weapons
1 We provide more detail regarding Martin’s sexual assault of Norma
because it is the subject of Martin’s section 654 challenge.
2 Norma testified against Martin under a grant of immunity pertaining
to her testimony about her drug conduct.
5
that he had stored in his closet.3 Martin handed Norma some crystal meth
and snorted a line. Norma pretended to inject hers intravenously, but really
injected it into a cigarette filter. Martin kept asking her, “ ‘How are you
feeling?’ ” He pulled down his shorts and began masturbating.
Norma told Martin she wanted to leave, but he responded, “You are not
fucking going [any]where till you suck my dick.” He grabbed her by the head,
started shaking it, and “cuss[ed]” at her. Norma was scared and cried.
Martin “got more aggressive” and told Norma “to be quiet” because “his
mother was in the next room.” Norma pleaded with him to let her leave.
Martin called Norma an “[u]ngrateful bitch” for not giving him sexual
favors after he gave her drugs. Martin fought and “tussle[d]” with Norma for
several hours to keep her from leaving. He pushed her, grabbed her, threw
her, pulled her hair, and hit her. He “socked” her so hard he left knots on her
legs, and he threatened to kill her and “take [her] sight” from her one good
eye. Whenever Norma thought about exiting through the door or a window,
Martin blocked her. He threatened to kill Norma, to “beat [her] ass,” and
that he would “not let [her] go until [she] sucked his dick.”
Martin tried to unbutton Norma’s pants, but she resisted and told him
“[he] might as well kill [her].” Martin then forced his penis into Norma’s
mouth, and she orally copulated him so “that he would let [her] go.” Martin
pushed on the back of Norma’s head and pulled her hair until he ejaculated
or preejaculated in her mouth.
3 We discuss Norma’s testimony about weapons in greater detail in
Discussion part I.A., below.
6
A few minutes later, Martin reinserted his penis into Norma’s mouth
and ejaculated again. He then used his penis to aggressively rub ejaculate on
Norma’s face.
Norma asked Martin if she could leave, and he escorted her to his car to
drop her off somewhere. When he dropped her off, he did not bring his car to
a complete stop before pushing her out.
The next day, Norma—who was usually “uncooperative” with law
enforcement—reported the sexual assault to police officers she approached in
a parking lot.
Norma testified she did not know G.M., and knew Tracy only to the
extent of exchanging pleasantries.
Defense Evidence
Martin acknowledged he had had sexual encounters with G.M., Tracy,
and Norma, but he maintained they were all consensual. He believed the
women were falsely accusing him because they were “jealous and env[ious]
because [he] [had] things.” He also believed the police were conspiring
against him.
Martin’s mother testified that her bedroom and Martin’s bedroom share
a wall, and she did not hear any commotion coming from his room the night
Norma claimed they had fought for hours.
Prosecution Rebuttal Evidence
The detective who investigated Martin’s case testified about her post-
arrest interview of Martin. Portions of the recorded interview that
impeached Martin’s trial testimony were played for the jury.
The following statement by Martin during the interview was also
played for the jury: “[I]t’s pissing me off, that you[’re] going to bring some
7
raggedy fucking bitches, drug-fiend prostitute ass bitches and believe what
the fuck they say, when they sucked a million dicks a fucking day.”
Jury Verdicts and Sentencing
The jury found Martin guilty on all counts, and found true the
multiple-victim enhancement allegations attached to each of the sex offenses.
The trial court sentenced Martin to the following consecutive terms:
Count 1 (rape of G.M.): 15 to life
Count 2 (rape of Tracy): 15 to life
Count 3 (oral copulation by Tracy): Stayed under § 654
Count 4 (oral copulation by Norma): 15 to life
Count 5 (oral copulation by Norma): Stayed under § 654
Count 6 (false imprisonment of Norma): 3 years
DISCUSSION
I. Denial of Mistrial
A. Background
Martin moved in limine to “[e]xclude testimony from the witnesses . . .
regarding suspicion that [Martin] is known to have guns.” (Italics omitted.)
The impetus for the motion was that “[i]n one or more statements[,]
witnesses indicate[d] that [Martin] is known to have guns.” Martin argued
the evidence should be excluded as unduly prejudicial. (Evid. Code, § 352.)
At the hearing on the motion, the prosecutor advised that although she
did not expect any witnesses would testify that they knew Martin owned
guns, such evidence would be relevant to establish a lack of the victims’
consent. Defense counsel countered that none of the victims had thus far
indicated they submitted to Martin because they believed he had guns; thus,
the evidence would be “inconsistent with . . . multiple previous statements,
8
and the only reason to proffer that evidence . . . would be to unfairly prejudice
[Martin].”
The trial court granted the defense motion and “exclude[d] any
testimony from any witness that [Martin] was a person known to have guns.”
The court also ordered counsel that “potential witnesses be likewise
admonished not to make any reference to any knowledge that they might
have had that [Martin] had guns and not to make any statements that
suggest that during their testimony.”
During direct examination of Norma, the prosecutor asked what was
going through her mind when she saw Martin secure the bedroom door with
the metal pole. Norma responded that she knew she “was in some . . . kind of
trouble” because there were too many locks and Martin’s “attitude was
getting a little different.” When the prosecutor asked how Martin’s attitude
was changing, Norma explained that Martin “started showing [her] weapons
that he had stored in his closet. . . . [T]here was a taser, some knives, a gun
or something.” (Italics added.) Defense counsel immediately requested a
sidebar conference, which the court granted.
During the sidebar, defense counsel reminded the court that it had
granted the in limine “motion dealing with weapons and not having
witnesses bring them up” and “instruct[ing] the prosecutor to admonish the
witnesses not to bring it up.”
The prosecutor acknowledged she had not admonished Norma
regarding the in limine order, but explained that the testimony about the gun
was unexpected because it was the first time Norma had mentioned one.
Further, the prosecutor noted she had not had a chance to meet with Norma
because Norma had recently been arrested for a probation violation, was in
custody, and arrived late to the trial. Finally, the prosecutor argued that
9
Norma’s testimony was probative and did not violate the in limine order
because the court prohibited testimony that Martin was known to have guns,
not that he actually displayed one immediately before committing a charged
offense. The prosecutor suggested Norma’s testimony was “subject to cross-
examination because it’s the first time we are hearing that” Martin displayed
a gun, and subject to cross-examination of police witnesses to establish that
their search of Martin’s apartment pursuant to a warrant did not yield any
weapons. The prosecutor assured the court she would move on to a new line
of questioning.
When the court asked defense counsel what remedy he sought, counsel
requested a mistrial. The court denied the request, explaining “that’s an
extraordinary remedy.” In the alternative, counsel asked that the offending
testimony “be stricken and that the jurors be . . . directed to disregard the
information.”
Back in open court, the trial court instructed the jury as follows:
“Ladies and gentlemen, the last question and the last answer by the witness
are to be disregarded. You are not supposed to consider that for any purpose
during this trial. The motion to exclude is granted . . . .”
Defense counsel later established through cross-examination of a police
detective that a search of Martin’s residence revealed no weapons.
After the close of evidence, the trial court instructed the jury, “If I
ordered testimony stricken from the record, you must disregard it and must
not consider that testimony for any purpose.”4
4 The court had similarly instructed the jury at the start of trial:
“During this trial, the attorneys might object to questions asked of a witness.
I’ll rule on those objections according to the law. . . . [I]f I order the testimony
10
B. Legal Principles
“ ‘A trial court should grant a mistrial only when a party’s chances of
receiving a fair trial have been irreparably damaged . . . .’ ” (People v. Clark
(2011) 52 Cal.4th 856, 990 (Clark); see People v. Montes (2014) 58 Cal.4th
809, 888 [“A motion for ‘ “mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.” ’ ”]; People v.
Dunn (2012) 205 Cal.App.4th 1086, 1094 (Dunn).) “Whether a particular
incident is so prejudicial that it warrants a mistrial ‘requires a nuanced, fact-
based analysis,’ which is best performed by the trial court.” (Dunn, at
p. 1094.)
“We review a trial court’s order denying a motion for mistrial under the
deferential abuse of discretion standard.” (Dunn, supra, 205 Cal.App.4th at
p. 1094; see Clark, supra, 52 Cal.4th at p. 990; People v. Jenkins (2000) 22
Cal.4th 900, 986 (Jenkins) [“ ‘Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.’ ”].) “ ‘Under this
standard, a trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” (Dunn, at p. 1094.)
C. Analysis
Although the prosecutor admittedly failed to comply with the trial
court’s in limine order that she admonish witnesses not to testify that Martin
“was a person known to have guns,” we conclude the trial court acted within
the scope of its discretion in denying Martin’s motion for a mistrial.
to be stricken, you are to disregard that testimony and not consider it for any
purpose.”
11
Martin acknowledges in his briefing that (1) “a curative instruction to
disregard improper testimony ordinarily is sufficient to cure the prejudice of
an improperly volunteered statement”; (2) “juries are presumed to follow a
court’s admonishment”; and (3) “the trial court struck the improperly
volunteered testimony and admonished the jury.” Martin maintains this is
an extraordinary case to which these general principles do not apply. We
disagree.
The extent of the violation of the in limine order was not extraordinary.
As the Attorney General points out, Norma’s testimony that Martin showed
her a gun did not, strictly speaking, violate the order excluding testimony
that Martin was known to have guns. Her testimony conveyed her firsthand
observations just before Martin committed a charged offense, whereas the in
limine ruling addressed rumor and speculation. Thus, we are left with the
prosecutor’s concession that she committed an essentially technical violation
of the order by failing to admonish Norma regarding the scope of the order.
In this circumstance, the trial court reasonably concluded the violation could
be cured by striking Norma’s testimony that Martin showed her a gun, and
by instructing the jury to disregard the stricken testimony.
Martin further maintains the prosecutor’s violation of the in limine
order was extraordinary because Norma’s testimony was irrelevant. He
argues “[n]one of the charged offenses were alleged to involve weapons and
the People never advised the court or the defense that it intended to elicit
evidence that a complainant’s will was overcome by the use of a firearm.” We
disagree. Norma’s testimony that Martin displayed a gun before she orally
copulated him was highly relevant to the issue of consent. (See People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 836 (Daveggio and Michaud)
[evidence that police found a gun and crossbow in the defendants’ van “was
12
relevant to whether the sexual penetration of [the victim] was accomplished
by force or fear”]; People v. Dearborne (2019) 34 Cal.App.5th 250, 259 [the
“defendant press[ing] what [the victim] thought was a gun up against her
side . . . surely helped induce the fear needed to overcome [her] will.”].)
Nor has Martin specifically contended or shown that the prosecutor’s
failure to disclose Norma’s testimony—which the prosecutor, herself, stated
was unexpected—undermined the testimony’s relevance or violated any
pretrial discovery or disclosure obligations.
Next, Martin suggests that evidence of gun-possession is uniquely
inflammatory to juries and improperly suggests the possessor has a
propensity “to brandish and use” them and is predisposed to violence. None
of the authorities Martin cited support this assertion. (See Jenkins, supra, 22
Cal.4th at p. 1006 [involving cellmate’s testimony that the defendant
confessed to committing the charged offense]; People v. Branch (2001) 91
Cal.App.4th 274, 278 (Branch) [involving evidence of prior sexual
molestation]; People v. Sam (1969) 71 Cal.2d 194, 204 [involving the
defendant’s propensity to kick people “with whom he disagrees”]; cf. Daveggio
and Michaud, supra, 4 Cal.5th at p. 836 [evidence of weapon-possession was
not improper character evidence where the “ ‘fact’ of . . . possession was
relevant to prove something beyond defendants’ ‘disposition to commit’
misconduct”]; People v. Powell (2018) 6 Cal.5th 136, 168 [evidence that the
defendant possessed a gun shortly before the charged murder and had
displayed it months earlier was relevant to the charged murder and “did not
merely reflect general criminal propensity”].)
Finally, Martin argues that Norma’s testimony about his gun-
possession “had an incurable effect on [his] defense” by impeaching his
testimony that all of the sexual encounters with the victims were consensual.
13
But “[e]vidence is not [unduly] prejudicial . . . merely because it undermines
the opponent’s position or shores up that of the proponent.” (Branch, supra,
91 Cal.App.4th at p. 286.) Indeed, the “ ‘ “ ‘ “ability to do so is what makes
evidence relevant.” ’ ” ’ ” (Daveggio and Michaud, supra, 4 Cal.5th at p. 824.)
Moreover, the prosecutor suggested during the sidebar several ways the
defense could impeach Norma’s testimony (e.g., by cross-examining her about
the fact she had never mentioned it before, and by establishing through police
testimony that they found no weapons in Martin’s apartment when they
searched it).
In light of the nature of the prosecutor’s violation of the in limine order,
the court’s striking of the offending testimony, and the court’s repeated
admonitions to the jury to disregard stricken testimony, the trial court did
not abuse its discretion in denying Martin’s motion for a mistrial.
II. Section 654
Martin contends the trial court violated section 654 by punishing him
for both falsely imprisoning Norma and for forcing her to orally copulate him
while she was falsely imprisoned.5 We agree.
A. Legal Principles
Section 654 “generally precludes multiple punishments for a single
physical act that violates different provisions of law [citation] as well as
multiple punishments for an indivisible course of conduct that violates more
than one criminal statute.” (People v. Newman (2015) 238 Cal.App.4th 103,
5 Although Martin “did not object to his sentence in the trial court, . . .
because a sentence imposed in contravention of section 654 is an
unauthorized sentence, the error may be raised on appeal even in the absence
of an objection.” (People v. Kelly (2018) 28 Cal.App.5th 886, 903; see People v.
Brents (2012) 53 Cal.4th 599, 618 (Brents).)
14
111-112; People v. Rodriguez (2009) 47 Cal.4th 501, 507.)6 “ ‘Whether a
course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than
one.’ ” (Rodriguez, at p. 507, italics omitted.) “If, on the other hand, ‘[the
defendant] entertained multiple criminal objectives which were independent
of and not merely incidental to each other, he may be punished for
independent violations committed in pursuit of each objective even though
the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (People v. Martin (2005) 133 Cal.App.4th 776, 781; see
People v. Leonard (2014) 228 Cal.App.4th 465, 499.)
“The question whether section 654 is factually applicable to a given
series of offenses is for the trial court, and the law gives the trial court broad
latitude in making this determination.” (People v. Hutchins (2001) 90
Cal.App.4th 1308, 1312.) “In the absence of any reference to . . . section 654
during sentencing, the fact that the court did not stay the sentence on any
count is generally deemed to reflect an implicit determination that each
crime had a separate objective.” (People v. Tarris (2009) 180 Cal.App.4th
612, 626.) “A trial court’s express or implied determination that two crimes
were separate, involving separate objectives, must be upheld on appeal if
supported by substantial evidence.” (Brents, supra, 53 Cal.4th at p. 618.)
6 Section 654 provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under
more than one provision.” (Italics added.)
15
B. Analysis
Martin contends section 654 precludes punishing him for both falsely
imprisoning Norma and forcing her to orally copulate him because the “false
imprisonment was the means by which [he] accomplished the sex offense.”
The Attorney General maintains multiple punishments are permissible
because Martin falsely imprisoned Norma not only with the intent to force
her to orally copulate him, but also to attempt to rape her after she initially
refused his attempts at oral copulation. Martin has the better argument.
Martin’s position is supported by the California Supreme Court’s
decision in People v. Latimer (1993) 5 Cal.4th 1203 (Latimer). The victim in
Latimer consensually entered the defendant’s car, but the defendant did not
stop where he was supposed to; instead he drove the victim to a desert and
raped her and forced her to orally copulate him. (Id. at p. 1206.) The
defendant then drove further into the desert and raped the victim again.
(Ibid.) The defendant then drove further into the desert and stopped, at
which point the victim jumped out of the car and fled. (Ibid.) The defendant
pleaded no contest to two counts of rape and one count of kidnapping. (Ibid.)
The trial court sentenced him to six years for each rape, and one year eight
months for the kidnapping. (Ibid.) The Court of Appeal held that section 654
precluded punishment for both the kidnapping and the rapes, and the
Supreme Court affirmed. (Id. at pp. 1206-1207.) The Supreme Court
reasoned that “[a]lthough the kidnapping and the rapes were separate acts,
the evidence does not suggest any intent or objective behind the kidnapping
other than to facilitate the rapes. ‘Since the kidnapping was for the purpose
of committing the sexual offenses and [defendant] has been punished for each
of the sexual offenses,’ section 654 bars execution of sentence on the
kidnapping count.” (Latimer, at p. 1216.)
16
The Court of Appeal reached a similar result in People v. Wall (1979) 95
Cal.App.3d 978 (Wall), in which the victim voluntarily entered the
defendant’s car and he refused to let her out and raped her. (Id. at pp. 981-
982.) The appellate court concluded that because the defendant’s “ ‘intent
and objective’ was manifestly the crime of rape, and the false imprisonment
was but a means of its accomplishment,” the defendant could be convicted of
both crimes, but “may be punished only for one.” (Id. at p. 990; see People v.
Walker (1983) 146 Cal.App.3d 34, 36-37, 41 [section 654 precluded
punishment for false imprisonment and multiple sex offense committed
during the false imprisonment].)
In contrast to Latimer and Wall, courts have allowed separate
punishment for false imprisonment or kidnapping and a sex offense when the
restraint on liberty and sex offense were independent of one another. (See
People v. Ratliffe (1981) 124 Cal.App.3d 808, 818 (Ratliffe) [“If the sex crimes
were an afterthought, appellant’s course of conduct will not be deemed an
indivisible transaction, because the crimes committed as an afterthought did
not facilitate the commission of the initial offense (kidnapping).”]; People v.
Saffle (1992) 4 Cal.App.4th 434, 439-440 (Saffle) [multiple punishment
permissible where the defendant completed sex acts and then falsely
imprisoned the victim to dissuade her from reporting the crime to the police].)
We find Latimer controlling, and Wall persuasive. Martin made clear
to Norma that his objective in falsely imprisoning her was to facilitate forcing
her to orally copulate him. When Norma first told Martin she wanted to
leave his locked bedroom, he responded, “You are not fucking going
[any]where till you suck my dick.” Martin repeatedly blocked Norma as she
attempted to flee, and reiterated he would “not let [her] go until [she] sucked
his dick.” It was not until immediately after Norma finished orally
17
copulating Martin a second time that he finally granted her request to leave.
On this record, Martin’s “ ‘intent and objective’ was manifestly the crime of
[forcible oral copulation], and the false imprisonment was but a means of its
accomplishment.” (Wall, supra, 95 Cal.App.3d at p. 990.) There is no
indication the forcible oral copulation was “an afterthought” to the false
imprisonment (Ratliffe, supra, 124 Cal.App.3d at p. 818), or that Martin
falsely imprisoned Norma only after he had already forced her to orally
copulate him to dissuade her from reporting him to the police (Saffle, supra, 4
Cal.App.4th at pp. 439-440).
Citing People v. Perez (1979) 23 Cal.3d 545 (Perez) and its progeny, the
Attorney General maintains Martin harbored separately punishable criminal
intents because he intended not only to force Norma to orally copulate him,
but he also intended to rape her (as evidenced by his attempt to unbutton her
pants while tussling) and to humiliate her (as evidenced by using his penis to
aggressively rub his ejaculate on her face). The Attorney General’s reliance
on Perez is misplaced.
The defendant in Perez was convicted of rape, forcible sodomy, and
forcible oral copulation for a sexual assault he committed against a single
victim in a single location over the course of about 45 minutes to one hour.
(Perez, supra, 23 Cal.3d at p. 549.) The trial court punished him for the rape,
but stayed punishment under section 654 on the sodomy and oral copulation
convictions. (Perez, at p. 549.) On the People’s appeal, the Perez court
rejected the defendant’s contention that section 654 applied because his
separate sex offenses were “all committed with the single intent and objective
of obtaining sexual gratification.” (Perez, at p. 550.) The Perez court found
that “[s]uch an intent and objective is much too broad and amorphous” in the
context of determining whether section 654 applies to sex offenses. (Perez, at
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p. 552.) Instead, the Perez court held that multiple sex offenses committed
during a single course of conduct can be separately punished as long as
“[n]one of the sex offenses was committed as a means of committing any
other, none facilitated commission of any other, and none was incidental to
the commission of any other.” (Perez, at pp. 553-554.)
Perez does not support the Attorney General’s position for two reasons.
First, it is factually distinguishable. Perez considered only the imposition of
punishment for one sex offense vis-à-vis other sex offenses; it did not consider
multiple punishments for a sex offense vis-à-vis a non-sex offense. (See
Perez, supra, 23 Cal.3d at p. 551 [“Although certain general principles may be
distilled from prior decisions on section 654, we do not attempt in this case to
determine their proper application to other than sex offenses.”].) Indeed, the
Latimer court repeatedly cited Perez, yet concluded section 654 precluded
punishing the defendant for both the sex offense (rape) and the non-sex
offense (kidnapping) committed to facilitate that sex offense. (See Latimer,
supra, 5 Cal.4th at pp. 1209, 1211, 1212.)
Second, even if Perez otherwise applied, it would not allow multiple
punishment for Martin’s false imprisonment and forcible oral copulation
convictions because, as discussed above, Martin clearly committed the false
imprisonment “as a means of committing”/to “facilitate commission
of”/“incidental to the commission of” the forcible oral copulation. (Perez,
supra, 23 Cal.3d at pp. 553-554.)
The Attorney General argues—and we acknowledge—that by falsely
imprisoning Norma and forcing her to orally copulate him, Martin is more
culpable than he would have been had he committed only one offense or the
other. But the Latimer court observed that section 654’s purpose of ensuring
that punishments are commensurate with culpability will not always be
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fulfilled. (See Latimer, supra, 5 Cal.4th at p. 1211 [“A victim . . . who is
forcibly transported into the desert, then raped, would be astonished to learn
that the rape and the kidnapping were considered to be the same ‘act or
omission’ (§ 654), and would find little consolation in the explanation that the
defendant had only a single ‘intent and objective.’ ”].) We are bound to follow
Latimer.
Thus, although Perez would allow Martin to be punished separately for
forcing Norma to orally copulate him twice during the same course of
conduct, Latimer does not allow him to be punished separately for the false
imprisonment he committed as a means of committing those sex offenses.
Accordingly, we will direct the trial court to stay Martin’s sentence on
his false imprisonment conviction.
III. Correction of Martin’s Sentence
As noted, the trial court sentenced Martin to consecutive 15-to-life
terms on counts 1 (raping G.M.), 2 (raping Tracy), and 4 (first count of forcing
Norma to orally copulate him). The court exercised its discretion not to
impose additional consecutive 15-to-life sentences on counts 3 (forcing Tracy
to orally copulate him) and 5 (second count of forcing Norma to orally
copulate him). Instead, the court stayed punishment on those convictions
under section 654.
The parties agree section 654 does not preclude punishment on counts
3 and 5, and the trial court should have imposed 15-to-life sentences on those
convictions, but run them concurrently to the principal term of 15-to-life on
count 1. Consistent with our discussion in part II, above, we agree, and will
direct the trial court to sentence Martin accordingly.
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DISPOSITION
The trial court is ordered to (1) impose a sentence of 15 years to life on
each of counts 3 and 5, to run concurrently to the principal term of 15 years
to life on count 1; (2) stay the sentence on count 6 (false imprisonment) under
section 654; and (3) amend the abstracts of judgment to reflect these changes,
and forward the amended abstracts to the Department of Corrections and
Rehabilitation.
In all other respects, the judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
GUERRERO, J.
DO, J.
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