People v. Beard CA5 ( 2021 )

Filed 2/22/21 P. v. Beard CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076716
Plaintiff and Respondent,
(Super. Ct. No. BF146573A)
v.
DUREE ANTHONY BEARD, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, for Plaintiff and Respondent.
-ooOoo-
Duree Anthony Beard contends on appeal the trial court (1) erred in failing to give
a unanimity instruction, (2) abused its discretion in imposing consecutive sentences, (3)
violated Penal Code section 6541 in imposing separate sentences for two crimes premised
upon the same act, and (4) erred in imposing multiple enhancements for each prior prison
term. After briefing was complete, we invited the parties to submit further briefing
regarding the impact of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136)
on the prior prison term enhancements. The parties agree Beard’s prior prison term
enhancements should be stricken. We strike the prior prison term enhancements and
affirm in all other respects.
PROCEDURAL SUMMARY
On December 13, 2016, the Kern County District Attorney charged Beard with
rape (§ 261, subd. (a)(2); count 1), forcible oral copulation (former § 288a, subd. (c)(2),
current § 287, subd. (c)(2)(A); count 2), first degree robbery (§ 212.5, subd. (a); count 3),
unlawfully dissuading a witness (§ 136.1, subd. (c)(1); count 4), and false imprisonment
(§ 236; count 5). As to counts 1 and 2, the information also alleged Beard committed the
crimes during the commission of a residential burglary with the intent to commit a sex
offense (§ 667.61, subd. (d)(4)). As to all counts, the information further alleged Beard
personally used a deadly weapon in the commission of the charged crimes (§§ 667.61,
subd. (e)(3), 12022, subd. (b)(1)) and had served five prior prison terms (§ 667.5, subd.
(b)). Beard pled not guilty to all counts and denied all special allegations.
Count 3 was dismissed prior to trial.
On November 6, 2017, the jury found Beard guilty on counts 1, 2, 4, and 5; found
true the weapon allegations on counts 1, 2, 4, and 5; and found true the burglary to
commit a sex offense allegations on counts 1 and 2.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
In a bifurcated proceeding on November 6, 2017, the trial court found true the
allegations that Beard had served three prior prison terms, two for convictions of second
degree burglary (§ 460, subd. (b)) in 2007 and 2010, and one for convictions of recklessly
evading a peace officer (Veh. Code, § 2800.2) and possession of a stolen vehicle (§ 496d)
in 2005. Based on the parties’ stipulation, the court dismissed the fourth and fifth prior
prison term allegations.
On December 5, 2017, the trial court sentenced Beard to prison for 65 years to life
as follows: on count 1, 25 years to life, plus three 1-year prior prison term enhancements;
on count 2, 25 years to life, plus three 1-year prior prison term enhancements, to be
served consecutively to the sentence on count 1; on count 4, four years, plus a one-year
personal use of a deadly weapon enhancement, plus three 1-year prior prison term
enhancements, to be served consecutively to the sentence on count 1; on count 5, eight
months, plus a four-month personal use of a deadly weapon enhancement, to be served
consecutively to the sentence on count 1.
FACTUAL SUMMARY
Prosecution’s Case
D.H. and the Neighbors
D.H. testified that on January 13, 2013,2 she made her husband move out of the
house after he physically abused her. Two elderly women and a younger man lived next
door to her.3 The man slept in the garage. D.H. had talked to the women three or four
times but never communicated more than simple messages because she spoke only
Spanish and they spoke no Spanish. She saw the man on several occasions, but she never
spoke to him and could not identify him. She may have heard his voice at some point,
but she said she would not recognize it if she heard it again. She was unable to identify
2 All further dates refer to the year 2013 unless otherwise stated.
3 D.H. did not recognize Beard as the man who lived next door to her.
3.
Beard in the courtroom. She testified she never had consensual sex with Beard or any
man around the time she separated from her husband.
The Sexual Assault
On January 16, three days after her husband moved out, 60-year-old D.H. walked
from her bedroom to her kitchen at roughly 10:00 p.m. As she did so, she encountered a
man in the hallway of her house wearing a hooded sweatshirt with the hood pulled up,
dark clothing, and gloves. She did not recognize the man and could not make out his
appearance because it was dark in the hall. However, she was sure he was not her
husband. The man then covered D.H.’s mouth with his hand and forced her to her
bedroom by pressing a metal icepick or screwdriver that measured between eight and 10
inches against her back. He told her to take her clothes off, but she did not immediately
understand what he was saying because she did not speak English. When she did not
undress, he used gestures to make himself understood. D.H. then understood and
disrobed. The man forced her to her knees and forced her to orally copulate him for “a
long time.” He then forced her to brush her teeth.
At some point after the forced oral sex, the man raped D.H. while she was face
down on the bed. Then he forced her to take a shower in the bathroom connected to the
bedroom. She took a shower and put on a robe. D.H. then tried to escape but the man
caught her and brought her back to the bedroom. He took the robe off of her, forced her
to lie on her back on the bed, and raped her a second time.4 He then forced her to shower
again.
4 Initially, D.H. testified she did not remember what happened when the man forced
her onto her back on the bed after she attempted to escape. She later testified that the
man raped her more than one time and forced her to take a shower more than one time.
She testified that at least one of the times she was raped, she was lying face down on her
bed. She was not sure if she was completely on the bed or bent over the bed.
4.
Next, the man made D.H. walk around the house in front of him. He commented
that she did not have any valuables. He then took a laptop computer in a case and left the
house through the front door.
At least two hours after the man left, at 12:59 a.m. on January 17, D.H. called 911,
when she heard a knock on her front door.5 She did not see who knocked on the door,
but she feared it was the man who had raped her. She did not call the police sooner
because she was “scared” and “ashamed.” The man had told her he would kill her if she
called the police.
D.H. testified she “resent[ed]” her husband for moving out, but she did not make
up the story about getting raped to get back at him.
The Police Response
The First Interview
Bakersfield Police Officer Gabriel Herriott responded to D.H.’s 911 call. He
arrived at D.H.’s house at approximately 1:10 a.m. on January 17. D.H. “was crying, …
pacing back and forth inside … her residence[,] … and kept [repeating] … that she had
just been raped.” D.H. spoke “very limited” English, so Herriott called a police
dispatcher to translate.
D.H. told Herriott that at about 11:00 p.m. on January 16, as she went to take her
medication in her kitchen, an unknown man grabbed her from behind, holding an icepick.
He told her not to scream, forced her to the bedroom, “told to remove her clothes,” and
“forced [her] to orally copulate” him. After several minutes, he “instructed her to lay on
the bed, [face] down, where he forced himself sexually on her by placing his penis in her
vagina.”6 During the rape, he said, “ ‘You like it, don’t you? You like it, bitch.’ ” After
5 The 911 call was in Spanish. A portion of the call was played for the jury. The
parties also provided the jury with a translated transcript of the call.
6 Herriott testified D.H. only told him about one rape.
5.
the rape, he forced her to take a shower. After she showered, he took her to the living
room, where he took her laptop computer, and left through the interior garage door.
D.H. described the man who raped her as “a black male adult, approximately 30
[to] 35 years old, … wearing a black hooded sweatshirt.”
D.H.’s House
As Herriott took D.H.’s statement, Bakersfield Police Officer Clifton Ary searched
D.H.’s house and found a Chapstick, a Leatherman multi-tool, and a lighter at the foot of
D.H.’s bed. None of those items belonged to D.H.
Meanwhile, Bakersfield Police Officer Donald Cegielski looked for any signs of
forced entry. D.H.’s garage, which was attached to her house, was adjacent to the
neighboring garage that Beard lived in, separated by the two side yards and a five-to six-
foot-tall wooden fence. Cegielski examined the exterior “man door” into D.H.’s garage
from the side yard. The wooden door, which opened in, was covered with a metal
security screen door, which opened out. Cegielski found damage to the wooden door
near the door latch and also fresh pry marks on the exterior of the wooden door frame.
The deadbolt on the wooden door was not engaged. There were no noticeable signs of
tampering on the security screen door. Cegielski concluded the man had entered the
garage through this man door.
The Sexual Assault Examination
On the morning of January 17, after Herriott finished interviewing D.H. and the
other officers finished investigating at her house, Herriott took her to the hospital where
she was physically examined. The nurse examined D.H.’s external genital area, looking
for “abrasions, cuts, bruises, tears, [or] anything [unusual].” The nurse found and
photographed “a small laceration” on D.H.’s “posterior fourchette.” The injury was
consistent with “some type of trauma to that area.” The nurse also found and
6.
photographed a bruise on D.H.’s right hand. After the nurse finished the physical
examination, she took swabs from D.H.’s mouth, neck, vagina, and external genital area.
The Second Interview
At 6:45 a.m. on January 17, Bakersfield Police Detective Jeremy Blakemore
interviewed D.H. at the police station with the assistance of a translator.7
D.H. told Blakemore she saw the man in her living room when she exited her
bedroom. He brandished a screwdriver or icepick at her as a weapon, held it near her
chest, and forced her to the bedroom. He told her to take off her clothes and she
complied. He told her to get onto her knees and she responded that she could not because
she had pain in her knees. He forced her to sit on the bed and orally copulate him for
several minutes. The man then forced D.H. onto her stomach and raped her. He told her
to brush her teeth and take a shower, directing her to “scrub her waist region,” but told
her not to wet her hair. After D.H. complied with those instructions, the man brought her
back to the bedroom and raped her a second time and ejaculated. Either during or
immediately after the second rape, he looked at some paperwork scattered on the bed that
bore D.H.’s husband’s name, gestured to it, and called the husband a “bastard.”8 D.H.
responded that “all men were bastards.” The man then suggested D.H. get a job at a
Wendy’s restaurant. After the second rape, he forced D.H. to take a second shower.
After the second shower, the man led D.H. around the house, looking at various
pieces of her property. He took a laptop computer that was in her bedroom. He then left
the house through the front door as D.H. lay on her couch covered by a blanket. D.H.
immediately got up and locked the front door. Within about an hour, she heard a knock
7 The interview was video recorded. The recording was played for the jury.
8 Blakemore initially indicated D.H. said the man’s discussion with her about the
paperwork did not take place until after the second incident of vaginal penetration.
However, on cross-examination, he acknowledged that according to his notes the man
may have temporarily ceased the sexual assault to comment on the papers.
7.
at the front door and heard what she believed to be the man’s voice, saying, “ ‘This is
Alex.’ ” She called 911.
When Blakemore asked D.H. how she thought the man got into her house, she told
him she was “certain” the door leading into the house from the garage was left unlocked
and “fairly certain” the wooden man door leading into the garage from the side yard was
unlocked. She did not comment on whether the security screen door was locked.
D.H. also told Blakemore she was unable to see the face of the man who raped her
because he directed her to look away. However, the man sounded like Beard, to whom
she had briefly spoken once or twice in the preceding month. She previously spoke to
Beard and his mother9 about having suffered domestic abuse by her husband.
The Recovery of D.H.’s Property and Search of Beard’s Residence
On January 17, Cegielski “put an alert out to different pawnshops” for the laptop
brand and model stolen from D.H.’s house. On the same date, an employee at the
Wooden Nickel pawn shop called Cegielski, telling him Beard had sold a laptop that met
his description. Cegielski browsed the contents of the laptop and found photographs of
D.H. He then obtained the pawn shop sales receipt bearing Beard’s name. Cegielski
showed the laptop to D.H. who confirmed it was the laptop stolen from her house by the
man who raped her.
Officers learned Beard was on probation and, on January 17, at approximately
11:00 a.m., conducted a search of the garage next door to D.H.’s home where he resided.
Bakersfield Police Officer Daniel McAfee, testified he found drawers in the garage
labeled with Beard’s name and a certificate bearing his name. Police Crime Laboratory
Technician Destinie Martinez recovered an empty black Leatherman multi-tool case and
a black hooded sweatshirt from the garage.
9 The women Beard lived with were actually his foster mother (Roberta Y.) and her
daughter (Marianne R.).
8.
Martinez and McAfee also discovered a laptop case in a trash can outside of the
garage. The laptop case contained an orange beanie, a pair of black utility gloves, and a
letter from D.H.’s husband. D.H. confirmed the laptop case was hers. In the same trash
can, Martinez and McAfee also found a trash bag containing a pair of size 13 Nike shoes
and a green towel.
Identification of Beard
Blakemore showed D.H. two different photographic lineups containing Beard’s
photo. Different photographs of Beard were used in each lineup. D.H. did not identify
Beard as her rapist or her neighbor in either of the two photographic lineups.
On January 18, Blakemore took a buccal swab from D.H. On November 22, 2016,
Bakersfield Police Officer Eric Littlefield took a buccal swab from Beard. Kern Regional
Crime Laboratory forensic laboratory technician Carol Williams prepared samples for
DNA testing of the buccal swabs from D.H. and Beard; the Leatherman multi-tool, the
Chapstick, and the cigarette lighter recovered in D.H.’s bedroom; and the swabs taken
from D.H. during the sexual assault examination. Williams took samples from two of the
four internal vaginal swabs obtained from D.H. during the sexual assault examination.
Both samples tested positive for semen and a visual examination using a microscope
showed the presence of sperm cells. Williams testified that, based on the level of
deterioration of the sperm cells, it was possible the sperm sample was collected more
than 24 hours after intercourse. However, based on the number of visible sperm cells, the
morphology of the sperm cells, and the strength of the response of the test for semen as
compared to the same testing in other cases, the sample was “probably [collected] within
12 hours” of deposit.
Williams also took a sample from one of the two external genital area swabs and a
sample from one of the two oral swabs. Both samples tested negative for sperm cells.
Finally, she took samples from the lighter, Chapstick, and multi-tool for DNA analysis.
9.
Kern Regional Crime Laboratory criminalist Brook Ramirez processed DNA
samples from D.H.’s vaginal swabs, the Leatherman multi-tool, the Chapstick, and the
lighter. Ramirez extracted the DNA from the samples and created DNA profiles from the
extracted DNA. Kern Regional Crime Laboratory forensic laboratory technician Alfredo
Bayaca processed the known samples taken from D.H. and Beard. He extracted the DNA
from the samples and created DNA profiles from the extracted DNA.
Kern Regional Crime Laboratory criminalist Mandi Van Buren interpreted the
DNA profiles created from the vaginal swabs, the Leatherman multi-tool, the Chapstick,
and the lighter, and the known DNA profiles from D.H. and Beard. D.H. was excluded
as a contributor to the DNA profile created from the lighter, but Van Buren could not
conclude whether Beard was a contributor to the DNA profile created from the lighter.
As to the Leatherman multi-tool, again D.H. was excluded as a contributor to the DNA
profile, but Beard could not be excluded as a contributor to the profile. Beard was
57 quadrillion times more likely than a random match from the African-American
population to have been a contributor to the Leatherman multi-tool profile, 11 quadrillion
times more likely than a random match from the Caucasian population, and
65 quadrillion times more likely than a random match from the Hispanic population. As
to the Chapstick, Beard was 1.9 quintillion times more likely to have been a contributor
than a random match from the African-American population. As to the sperm cell
isolated from the vaginal sample, Beard was 500 quadrillion times more likely to have
been a contributor than a random match from the African-American population.
Defense Case
Marianne R. testified that Beard was her mother’s foster child. In January 2013,
Marianne and her mother, Roberta Y., lived next door to D.H. Beard occasionally stayed
nights in their garage during that time. Marianne only permitted Beard to spend the night
if he arrived home before 10:00 p.m.
10.
Marianne testified D.H. came to her approximately three times because D.H. was
having problems with her husband. D.H. told Marianne that her husband abused her and
he had brought a mistress to Bakersfield from Las Vegas.
Beard testified in his own defense. Beard admitted a 2010 conviction for burglary,
a 2008 conviction for burglary, a 2004 conviction for possession of stolen property, and a
2002 conviction for petty theft. During 2012 and January 2013, Beard spent some nights
in his foster mother’s garage, some nights with his girlfriend, and some nights with his
brother. He stayed in the garage between one and three times per week.
In June 2012, Beard met D.H. and her husband while they were doing yardwork.
Beard saw D.H. go into his foster mother’s house on one occasion, but he was not present
for their conversation. On a second occasion, he saw D.H. walking to his foster mother’s
house and she appeared angry. They talked and D.H. told Beard that her husband had hit
her. Beard offered to help her. In November 2012, Beard went to D.H.’s house to help
her. He spoke to her in the driveway in front of her house and she told him about her
husband’s abuse and her husband’s mistress. D.H. told Beard that her husband brought
the mistress to her house.
In late November 2012, Beard was outside of his foster mother’s house and knew
he could not go inside because he was under the influence of alcohol. D.H. invited him
into her house to “sober up.” She told him she wanted him to hurt her husband. She
offered Beard a laptop and a bag of methamphetamine in exchange for hurting her
husband. Beard accepted the laptop and methamphetamine from D.H. Although there
was a language gap, Beard understood that D.H. wanted him to hurt her husband because
she made a gun gesture with her hand when she asked Beard to hurt him.
Beard testified he had consensual sex with D.H. once in late December 2012 or
early January 2013. He denied ever having broken into D.H.’s house. Beard also denied
ever having had sex with D.H. without her consent.
11.
Beard testified that at some point after D.H. asked him to hurt her husband, he
found a .38-caliber revolver in his foster mother’s garage and purchased .38-caliber
ammunition. He eventually decided not to follow through on the agreement to hurt
D.H.’s husband, and he told D.H. he was not going to do it. D.H. was “mad” and
demanded that Beard give the laptop and methamphetamine back. Beard refused.
Beard testified he kept the laptop for approximately two weeks after D.H. gave it
to him. Then, on January 17, before 10:00 a.m., he sold the laptop to the Wooden Nickel
pawn shop. At 2:09 p.m. on the same day, he got on a bus leaving town. Beard testified
that he left town because his foster mother told him police had searched the house and
found bullets. He knew that if he returned, he likely faced a parole violation or new
charges based on the ammunition he was not permitted to possess.
Beard testified the Leatherman multi-tool, the Chapstick, and the lighter found in
D.H.’s house all belonged to him. He did not know when he left those items at her house
because he had been in the house multiple times. However, Beard testified he had not
been to D.H.’s house for several days before he sold the laptop and left town. Beard
testified he threw the laptop case in the garbage at his foster mother’s house “a couple of
days” before he left town. He also threw out his Nike tennis shoes because they were
dirty.
DISCUSSION
I. Unanimity Instruction
Beard was charged with and convicted of one count of forcible rape. Beard argues
that a unanimity instruction was required because “[t]he prosecutor introduced evidence
of two separate acts that could have constituted the alleged rape violation.” The People
respond that a unanimity instruction was not required because “[t]he two forcible rapes
happened as part of one continuous course of conduct and there was no reasonable basis
for the jury to distinguish between them.” The People are correct.
12.
A. Standard of Review
Appellate review of a trial court’s decision “to give any particular instruction in
any particular case entails the resolution of a mixed question of law and fact,” but the
inquiry is “predominantly legal.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Therefore, a claim of instructional error is “examined without deference.” (Ibid.)
B. Background
The prosecutor introduced evidence that could support a finding that Beard
committed two acts of rape. D.H. testified the man raped her more than one time, but she
did not clearly describe the differentiating details of the different acts. Detective
Blakemore testified D.H. told him the man raped her, forced her to take a shower, and
then raped her a second time. Officer Herriott, however, testified D.H. told him she was
raped one time.
During trial, the court considered whether to give a unanimity instruction,
explaining:
“I have flagged the Court’s unanimity [instruction], which I have proposed
I will withdraw at this time. The Court had articulated to counsel that there
are two individual acts, based upon the best evidence of the People’s case
of rape by [Beard] of [D.H.], which was interrupted to look at certain
documents[.] [T]hat will be one view of the evidence. And the Court was
somewhat concerned that maybe the jury needed to have an election
between [the acts] if they were going to convict [Beard] of the charge of …
rape. [After d]iscussion with counsel off the record, I think the People’s
position of this is this was a continuous course of conduct. And as such, I
don’t think unanimity is required whe[re] there’s a continuous course of
different sexual acts. I don’t think the jury is required to elect between
these particular acts under these circumstances. So I’m inclined not to give
that, unless either side wants to be heard further on it.”
Neither side asked to be heard further on the issue and the court did not give the
unanimity instruction.
Later, during closing argument, the prosecutor did not elect a single act as the
basis for the rape charge. Instead, she argued: “[Beard] turned [D.H.] on her stomach,
13.
bent her over the bed, and he raped her. He made her take a shower and brush her teeth.
She attempted to run, but he grabbed her back. [¶] Then he bent her over again, he raped
her again, and this time he ejaculated.”
C. Analysis
In a criminal case, a jury verdict must be unanimous. (U.S. Const., 6th Amend.;
Cal. Const., art. I, §16; People v. Anzalone (2013) 56 Cal.4th 545, 555.) Further, “the
jury must agree unanimously the defendant is guilty of a specific crime.” (People v.
Russo (2001) 25 Cal.4th 1124, 1132.) “Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must elect among
the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.)
A unanimity instruction eliminates the danger a criminal defendant will be convicted
without the jurors agreeing that the defendant committed a single criminal offense. (Ibid;
People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) However, “ ‘ “[a] unanimity
instruction is required only if the jurors could otherwise disagree which act a defendant
committed and yet convict him of the crime charged.” ’ ” (People v. Champion (1995) 9
Cal.4th 879, 932 (Champion), overruled on other grounds in People v. Combs (2004) 34
Cal.4th 821, 860.)
As the People assert, the continuous course of conduct exception to the
requirement of a unanimity instruction applied in this case. This exception, as relevant
here, applies in two situations where no possibility of juror disagreement exists—the
single transaction situation and the same defense situation. The single transaction
situation arises when “ ‘ “the acts were substantially identical in nature, and close enough
in time to constitute a single transaction, such] that any juror believing one act took place
would inexorably believe all acts took place.” ’ ” (Champion, supra, 9 Cal.4th at p. 932;
accord People v. Hernandez (2013) 217 Cal.App.4th 559, 572 (Hernandez) [where two
criminal acts were part of a “single transaction or course of criminal conduct,” no
14.
unanimity instruction is required]; see People v. Gonzalez (1983) 141 Cal.App.3d 786,
791 (Gonzalez), fn. omitted [“the possibility of disagreement exists where the defendant
is accused of a number of unrelated incidents, such as alleged rapes at different times or
places, leaving the jurors free to believe different parts of the testimony and yet convict
the defendant”], disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d
322, 330; People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings) [no unanimity
instruction is required “ ‘when the acts [were] so closely connected in time as to form
part of one transaction’ ”].)
The same defense situation arises “ ‘ “ ‘when the defendant offers essentially the
same defense to each of the acts, and there is no reasonable basis for the jury to
distinguish between them.’ ” ’ ” (Hernandez, supra, 217 Cal.App.4th at p. 572; see
Jennings, supra, 50 Cal.4th at p. 679; Gonzalez, supra, 141 Cal.3d. at p. 792, fn. omitted
[“[d]isagreement may … exist where the defendant offers a defense which could be
accepted or rejected as to some but not all of the acts”].)
In Champion, both situations applied. There, “the rape victim testified that [the]
defendant … raped her twice, but the two rapes were virtually identical. After raping [the
victim] in the bathroom, [the defendant] left, returning shortly thereafter to rape her
again. [The defendant] offered no evidence tending to show that he committed one of the
rapes but not the other; rather, his counsel argued that he did not participate in any of the
[charged] crimes.” (Champion, supra, 9 Cal.4th at p. 932.) Our Supreme Court
determined no unanimity instruction was required because, “once a juror determined that
[the] defendant … committed one of the two rapes, it [was] inconceivable that the juror
would not also conclude that [the defendant] also committed the second rape of the same
victim.” (Ibid.)
Similarly, both situations applied here also. First, as in Champion, there was no
risk of jury disagreement as a result of the two possible acts underlying the rape
15.
conviction having been committed at different times or places. (Champion, supra, 9
Cal.4th at p. 932.) D.H. was raped twice in her bedroom, interrupted by Beard forcing
her to shower and brush her teeth (and possibly by Beard reading documents on her bed,
calling her husband a “bastard,” and giving her advice on where to find a job). The two
acts of rape constituted a continuous course of conduct. Once a juror concluded the first
rape took place, he or she would necessarily have concluded the second rape also took
place. For that reason, no unanimity instruction was required.
Second, as in Champion, Beard’s defense was that he did not participate in any of
the offenses of which he was accused. (Champion, supra, 9 Cal.4th at p. 932.) Beard did
not raise any defense that the jury could have accepted as to one of the acts of rape but
rejected as to the other. Beard testified he had sex with D.H. only one time, in late
December 2012 or early January 2013. He testified he was not at D.H.’s house on the
day the rape occurred, did not break into her house, and did not have sex with her that
day. He suggested D.H. fabricated the story because he refused to hurt her husband after
accepting the laptop and methamphetamine as payment. Based on that defense, the jury
could not reasonably have concluded he “committed one of the rapes but not the other.”
(Champion, supra, at p. 932.) For this reason also, no unanimity instruction was
required.
Accordingly, in this case, no unanimity instruction was required because the two
acts of rape were part of a single transaction, and because Beard’s defense was the same
for both acts and there was no reasonable basis for the jury to distinguish between the
acts.
Beard argues D.H.’s “waver[ing] … recollection of when [the] second act of
intercourse occurred” and Officer Herriott’s testimony that D.H. only reported one rape
could have led the jury to “rel[y] on [one] or the other of the incidents as the basis to
convict [Beard] of this count.” We disagree. As the People note, our Supreme Court in
16.
People v. Riel (2000) 22 Cal.4th 1153 rejected a similar argument. In Riel, the defendant
robbed a truck stop clerk at the till then forced him into a car where, according to a
codefendant, the defendant robbed him of his wallet. (Id. at pp. 1173-1199.) The
defendant was charged with a single count of robbery. (Id. at pp. 1172, 1199.) He
argued the absence of a unanimity instruction could have allowed a divided jury to
convict him without deciding on which act of robbery he committed. (Id. at p. 1199.)
Our Supreme Court rejected that theory, explaining “[i]t was conceivable that some, or
even all, of the jurors might have had a reasonable doubt that the robbery in the car
occurred. They might have considered it a possible embellishment on [the
codefendant’s] part. These jurors might have found [the] defendant guilty based on the
truck stop robbery but not the car robbery. But the reverse is not true. If the jury
believed [the codefendant], [the] defendant was clearly guilty of the truck stop robbery,
which the physical evidence shows occurred. It is inconceivable that a juror would
believe [the codefendant’s] testimony that [the] defendant committed the robbery in the
car but somehow find he did not commit the truck stop robbery.” (Id. at pp. 1199-1200.)
The same is true here. D.H. testified she was raped more than once. Officer
Herriott testified D.H. told him Beard forced her to orally copulate him, raped her, then
made her shower. Detective Blakemore testified D.H. told him Beard forced her to orally
copulate him, raped her, made her shower, raped her again, then made her shower again.
Even if it was conceivable that jurors could have found Beard committed the first act of
rape but not the second, it is inconceivable the jury could have concluded that Beard
committed only the second rape. Because the jury returned a guilty verdict on the rape
charge, the jurors necessarily all concluded Beard committed at least the first act of rape.
Next, Beard contends “[t]he continuous course of conduct exception does not
apply here because there was a reasonable basis for the jury to distinguish between the
acts.” In support of that proposition, Beard directs us to the trial court’s comment when it
17.
was considering whether to impose a consecutive sentence—“there is no way [for the
court] to determine which act of rape that the jury determined was the act of rape” that
sustained the conviction. The court’s comment was made in the context of determining
whether Beard had an opportunity to reflect on his actions, which would tend to support a
finding he committed the sex offenses on “separate occasions.” (§§ 667.61, subd. (i),
667.6, subd. (d) [“In determining whether crimes against a single victim were committed
on separate occasions …, the court shall consider whether, between the commission of
one sex crime and another, the defendant had a reasonable opportunity to reflect upon his
or her actions and nevertheless resumed sexually assaultive behavior.”])
Whether crimes were committed on separate occasions for purposes of imposing
consecutive sentences is a distinct inquiry from whether criminal acts were committed as
part of a continuous course of conduct for purposes of requiring a unanimity instruction.
For consecutive sentencing purposes, “[a] finding that the defendant committed the sex
crimes on separate occasions ‘does not require a change in location or an obvious break
in the perpetrator’s behavior.’ ” (People v. King (2010) 183 Cal.App.4th 1281, 1325
(King).) Indeed, a trial court may properly find that a defendant had “reasonable
opportunity for reflection” and therefore his sex crimes took place on “separate
occasions” for purposes of section 667.6, subdivision (d), even where the defendant
“ ‘merely’ changed positions” in the same location (People v. Irvin (1996) 43
Cal.App.4th 1063, 1071; People v. Jones (2001) 25 Cal.4th 98, 104-105) or momentarily
ceased and then resumed the series of sex acts (King, supra, at p. 1325).
Conversely, for unanimity instruction purposes, whether several acts constitute a
single course of conduct depends on the nature of the offenses and their proximity in
time. (Champion, supra, 9 Cal.4th at p. 932; Gonzalez, supra, 141 Cal.App.3d at p. 791.)
As seen in Champion, a series of similar sex offenses, even when interrupted by the
defendant leaving the location of the crime, can constitute a single course of conduct,
18.
removing the need for a unanimity instruction. (Champion, at p. 932; People v. Mota
(1981) 115 Cal.App.3d 227, 233 [a continuous course of conduct existed where a
defendant kidnapped and repeatedly raped the victim over the course of two hours in the
back of a moving vehicle].)
In like fashion, whether a reasonable basis exists to distinguish between acts for
purposes of requiring a unanimity instruction is unrelated to whether a defendant had the
opportunity to reflect upon his misconduct for purposes of consecutive sentencing. Even
where a defendant had ample time to reflect between acts, no unanimity instruction is
required unless the jury could find one act true and the other untrue. (E.g. People v.
Percelle (2005) 126 Cal.App.4th 164, 182 (Percelle) [no reasonable basis to distinguish
between the defendant’s first attempted fraud and his second attempted fraud an hour
later].)
Here, the trial court evidently understood the distinction between the separate
occasion inquiry for consecutive sentencing purposes and the continuous course of
conduct inquiries for unanimity instruction purposes. It found the rapes occurred on
separate occasions and recognized that the jury did not have to distinguish between the
acts that could sustain the rape conviction because they could consider the entire course
of conduct. The trial court’s comment did not suggest either that the two acts of rape
were not substantially similar in nature and close in time or that it was possible for the
jurors to distinguish between the acts in a manner that would permit them to find Beard
committed one act but not the other. Further, there is nothing inconsistent about the
court’s determinations that the two rapes occurred on separate occasions and constituted
a continuous course of conduct.
Next, Beard contends a unanimity instruction was required because the “court also
commented that the prosecutor could have alleged a second count of rape” based on the
facts presented. However, “[i]t is immaterial [for purposes of instructing on unanimity]
19.
that the two acts might have been charged as two separate [counts].” (Percelle, supra,
126 Cal.App.4th at p. 182.) Where there is no evidence from which the jury could have
found the defendant committed one act but not the other, a unanimity instruction was not
required. (Ibid., citing People v. Riel, supra, 22 Cal.4th at p. 1199.) As explained above,
the jury could not have concluded that Beard committed the second act of rape but not the
first.
Finally, even if we were to assume such an instruction was required, the failure to
give it was harmless even under the Chapman v. California (1967) 386 U.S. 18(Chapman) standard of beyond a reasonable doubt. (Hernandez, supra, 217 Cal.App.4th
at pp. 576-577 [acknowledging a split of authority on the correct standard for determining
if a trial court committed harmless error when it fails to give a unanimity instruction];
People v. Vargas (2001) 91 Cal.App.4th 506, 561.)10
“[E]rroneous failure to give a unanimity instruction is harmless if disagreement
among the jurors concerning the different specific acts proved is not reasonably
possible.” (People v. Napoles (2002) 104 Cal.App.4th 108, 119, fn. omitted.) Where a
“defendant offered the same defense to all criminal acts, and ‘the jury’s verdict implies
that it did not believe the only defense offered,’ failure to give a unanimity instruction is
harmless error.” (Hernandez, supra, 217 Cal.App.4th at p. 577; People v. Wolfe (2003)
114 Cal.App.4th 177, 188 [failure to give unanimity instruction was harmless error where
jury clearly rejected unitary defense to all criminal acts].) Such is the case here—the
jury’s verdict makes clear it did not believe Beard’s defense that he was not at D.H.’s
10 In the context of a trial court’s failure to give a unanimity instruction, “[s]ome
cases hold that the prejudice must be deemed harmless beyond a reasonable doubt under
Chapman … [, supra,] 386 U.S. 18 …. Other cases hold that the test is as enunciated in
People v. Watson (1956) 46 Cal.2d 818, 836 … (Watson), which is whether ‘it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (People v. Vargas, supra, 91 Cal.App.4th. at
pp. 561-562.)
20.
house on the date of the rape and that D.H. fabricated the story when he refused to hurt
her husband. If nothing else, the jury concluded Beard forced D.H. to orally copulate
him, raped her, robbed her, and threatened to harm her if she reported his crime. Failure
to give a unanimity instruction was therefore harmless under either Watson or Chapman.
II. Consecutive Sentencing
Beard argues the trial court erred in imposing the term on count 2, the oral
copulation count, to run consecutively to the term imposed on count 1, the rape count.
He contends that (1) because the trial court could not determine from the verdict whether
the jury based the rape conviction on the first or second act of rape, the court violated his
Sixth Amendment right to confrontation in concluding that the oral copulation and rape
were committed on separate occasions for purposes of imposing a consecutive sentence;
and (2) the trial court erroneously applied the “continuous course of conduct” standard of
section 654, rather than the “separate occasions” standard of section 667.61, subdivision
(i), in imposing a consecutive sentence. The People counter that (1) the Sixth
Amendment does not require juries to determine facts necessary to the imposition of
consecutive sentences, and (2) the trial court properly applied the section 667.61,
subdivision (i) standard. We agree with the People on both accounts.
A. Background
The trial court explained the factual basis and its reasoning for imposition of a
consecutive sentence:
“[THE COURT:] From putting together both the testimony of
[D.H.] as well as her earlier statements at the time she was interviewed by
law enforcement, … it appears that, as [defense counsel] has described it,
you have the oral copulation followed immediately by the sexual
intercourse or the rape, which there isn’t a lot of things—factors in there—
… you could argue that both ways, but that’s much more difficult to
separate those two instances.
“You do clearly have the break where she was taking a shower. In
that break, where she attempted to flee, is probably the time period when he
21.
came back, and then there was actually, it would appear, a second act of
rape, which was then probably interrupted based upon the discussion about
the paper, and then resumed.
“I don’t know for sentencing purposes—and this is occurring to me
now; I’m thinking out loud a little bit here—the jury had a continuous
course of conduct to make a determination on. There’s no need for them to
distinguish one act from the other. There was—I think the facts support
the—and the law support[s] the verdict of the jury.
“But for purposes of determining the Court’s sentencing, whether
it’s consecutive or concurrent; that is, was there a sufficient break to allow
[Beard] to contemplate his actions and choose to seek another course of
action, or did he choose, then, to continue on with it? To justify the
consecutive sentencing, I think, under your argument, [prosecutor], there
[were] clearly several major breaks, and he resumed the acts, that’s clearly
true. With [defense counsel’s argument], there was the earlier act, where
they just flowed from one to the other, and I don’t think the facts there
would justify a consecutive sentencing. But you have a number of different
breaks, which clearly show he had a chance to change the direction of what
was going on, insist [D.H.] take a shower, restrain her from flight, and then
take her back and continue. That clearly justifies a consecutive sentencing.
The rape, broken by discussion regarding the tax paperwork, then to resume
the rape, that clearly justifies. But the first, I think … the transition from
the oral copulation to the rape, that transition, initially on the bed, seemed
to flow from one act to the other without a significant break.” (Italics
added.)
The court continued:
“I think, [defense counsel], your argument that transition from the
oral cop[ulation] to the forcible rape was a continuous course of conduct [is
correct]. I agree with [the prosecutor], though, that … there were several
breaks …. I think there was actually factually two separate breaks after that
which gave [Beard] sufficient time to reflect and move out of the room or
move around the room, from the bedroom to the bathroom, back to the
bedroom; from the bedroom then, to look at these papers, and then back.
[¶] … I think from an overall point of view, when you have a significant
course of conduct that lasts for a duration of an hour or more involving a
number of different sex acts with significant breaks in them, and factually
the jury could have decided that the rape occurred immediately following
the oral copulation, the rape occurred after the first bathroom break; the
rape occurred after the break to look at the papers. Factually, the jury could
22.
make a determination anywhere along there. We don’t know what
determination they made.”
The court concluded:
“So for appellate review I want it clear that … I [have] laid out the
facts as I believe they exist that the jury considered; that I understand the
defense argument, and I agree with it, and that there is no way to determine
which act of rape that the jury determined was the act of rape, and they
didn’t have to; they could have considered it in the totality of the
circumstances. That under these facts it does justify the consecutive
sentencing because it shows a significant course of conduct, significant
changing of opportunity for [Beard] to reflect and to cease his attack at
any time and yet the attacks continued to resume. So I think under these
facts it does justify a consecutive sentencing on [the] second count.”
(Italics added.)
B. Statutory Framework
Section 667.61, subdivision (i) requires that the trial court “impose a consecutive
sentence for each [listed sex] offense that results in a conviction … if the crimes …
involve the same victim on separate occasions as defined in subdivision (d) of
Section 667.6.”11 “In determining whether crimes against a single victim were
committed on separate occasions …, the [trial] court shall consider whether, between the
commission of one sex crime and another, the defendant had a reasonable opportunity to
reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.
Neither the duration of time between crimes, nor whether or not the defendant lost or
abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the
issue of whether the crimes in question occurred on separate occasions.” (§ 667.6,
subd. (d).) When section 667.61, subdivision (i) does not mandate imposition of
consecutive sentences, a trial court has discretion to impose concurrent or consecutive
sentences pursuant to section 669. (§ 669, subd. (a); People v. Valdez (2011) 193
Cal.App.4th 1515, 1524.)
11 Forcible rape and oral copulation are both listed sex offenses for purposes of
section 667.61, subdivision (i). (§ 667.61, subd. (c)(1), (c)(7).)
23.
Section 654, subdivision (a) provides that “[a]n 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.” The inquiry to determine whether
separate sentences can be imposed pursuant to section 654 is “[w]hether a course of
criminal conduct is divisible and therefore gives rise to more than one act.” (Neal v. State
of California (1960) 55 Cal.2d 11, 19 (Neal); People v. Correa (2012) 54 Cal.4th 331,
335-336 (Correa).) That inquiry turns on “ ‘the intent and objective’ ” of the defendant.
(Correa, at p. 336.) “ ‘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.’ ” (Ibid.)
C. The Constitutional Challenge
Beard contends that because the jury did not necessarily conclude he committed
the second act of rape, the trial court’s consideration of the second act of rape to impose a
consecutive sentence violated his constitutional right to have a jury find true beyond a
reasonable doubt any fact used to increase his maximum sentence. We disagree.
Under the Sixth Amendment to the United States Constitution, as explained by
Apprendi v. New Jersey (2000) 530 U.S. 466 at page 490 (Apprendi), “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (People v. Nguyen (2009) 46 Cal.4th 1007, 1015 (Nguyen).)
However, the United States Supreme Court has also made clear the Sixth Amendment
does not preclude judges, rather than juries, from finding of facts necessary to the
imposition of consecutive, rather than concurrent, sentences for multiple offenses.
(Oregon v. Ice (2009) 555 U.S. 160, 168-172 (Ice);12 People v. Scott (2015) 61 Cal.4th
12 “As pointed out (and criticized) by the dissent in Ice, the focus of the majority’s
rationale [in Ice] was not on whether the trial court’s finding of facts necessary to support
the imposition of consecutive sentences increased the overall punishment for the
24.
363, 405; People v. Capistrano (2014) 59 Cal.4th 830, 884, overruled on another ground
by People v. Hardy (2018) 5 Cal.5th 56, 104; see Nguyen, at p. 1018, fn. 9 [“It is also
now clear that Apprendi does not require a jury determination of facts bearing on whether
to impose concurrent or consecutive sentences for separate offenses.”]; see also People v.
Wiley (1995) 9 Cal.4th 580, 586 [“the ability of courts to make factual findings in
conjunction with the performance of their sentencing functions has never been
questioned”].)
In his reply, Beard acknowledges “sentencing determinations are generally not
covered by Apprendi considerations.” However, Beard argues that this case is different
because the guilty verdict does not necessarily indicate that the jury found he committed
the second act of rape. Beard contends the jury may have concluded that he committed
the forced oral copulation, then transitioned directly into the first act of rape, and did not
commit a second act of rape at all. Because the jury may have so concluded, Beard
argues, the trial court was not permitted to “rely on its own factual finding of guilt of an
uncharged crime—[i.e. the second act of rape—]as a basis to impose consecutive
sentencing.” Beard argues therefore that imposing a consecutive sentence based on the
second act of rape was effectively judicial factfinding on a separate crime and a violation
of the Sixth Amendment.
Preliminarily, as we concluded in section II. of the Discussion, ante, the two acts
of rape were part of a continuous course of conduct and neither Beard’s defense nor the
evidence before the jury provided any reason for the jury to distinguish between the acts.
defendant’s crimes ‘beyond the prescribed statutory maximum.’ ” (People v. Mosley
(2015) 60 Cal.4th 1044, 1058-1059.) “Instead, the majority in Ice relied on historical
practice evidencing the absence of any traditional role played by jury at common law in
the determination whether to impose consecutive sentences, as well as principles of state
sovereignty over the States’ administration of their criminal justice systems, to conclude
Apprendi’s Sixth Amendment jury trial guarantee is not implicated in a decision to
impose consecutive sentences.” (Id. at p. 1059.)
25.
For that reason, the jury’s verdict reflects that the jury found Beard to have committed
both acts of rape. The trial court therefore did not rely on any facts at sentencing not
necessarily determined by the jury to be true beyond a reasonable doubt.
Next, even assuming Beard is correct that the jury could have found the second act
of rape did not take place and still arrive at its verdict, the Sixth Amendment is not
implicated. The trial court’s factual finding—that the offense involved “a significant
course of conduct that last[ed] for a duration of an hour or more[,] involving a number of
different sex acts with significant breaks in them”—was made for purposes of
determining whether to impose a concurrent or consecutive sentence. The trial court did
not, as Beard suggests, find that the sentences on counts 1 and 2 should run consecutively
because Beard committed an uncharged rape. Nor did the court impose any punishment
for an uncharged rape. For purposes of imposing consecutive sentences, the court found
that the entire course of conduct (the first and second acts of rape) provided the factual
basis for Beard’s single rape conviction. That determination was not subject to the
Apprendi line of cases and was not required to be submitted to the jury to be found
beyond a reasonable doubt because it was a determination made only for the purpose of
determining whether to impose a consecutive term of imprisonment. (Ice, supra, 555
U.S. at p. 170; People v. Scott, supra, 61 Cal.4th at p. 405 [“ ‘the Sixth Amendment’s
restriction on judge-found facts’ is ‘inapplicable’ when a trial judge makes factual
findings necessary to the imposition of consecutive terms”].)
The trial court did not commit constitutional error in imposing a consecutive
sentence on count 2.
D. Statutory Challenge
Beard contends the trial court inappropriately applied the standard for section 654,
rather than section 667.61, subdivision (i), in deciding whether to impose consecutive
sentences. He points to the trial court’s comment that “the significant issue of the
26.
sentencing[] is whether [the sentence on the rape count should be stayed pursuant to
section] 654.” We disagree with his conclusion.
A review of the trial court’s explanation of its reasons for imposing a consecutive
sentence as to the rape conviction belies Beard’s argument. The trial court set out the
correct standard: “[F]or purposes of determining the Court’s sentencing, whether it’s
consecutive or concurrent; that is, was there a sufficient break to allow [Beard] to
contemplate his actions and choose to seek another course of action, or did he choose,
then, to continue on with it?” (See §§ 667.6, subd. (d) [“In determining whether crimes
against a single victim were committed on separate occasions under this subdivision, the
court shall consider whether, between the commission of one sex crime and another, the
defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless
resumed sexually assaultive behavior.”], 667.61, subd. (i) [incorporating the “separate
occasions” test set out in § 667.6, subd. (d)].) The trial court then clearly explained that
“factually [there were] two separate breaks after [the oral copulation and first act of rape]
which gave [Beard] sufficient time to reflect and move out of the room or move around
the room, from the bedroom to the bathroom, back to the bedroom; from the bedroom[,]
then[] to look at these papers, and then back.” The court later concluded “consecutive
sentencing [is justified] because [the facts of the case] show[] a significant course of
conduct [and] significant changing of opportunity for [Beard] to reflect and cease his
attack at any time and yet the attacks continued to resume.” Although the trial court used
the term “course of conduct”—language used both in the context of giving a unanimity
instruction and determining whether separate sentences can be imposed pursuant to
section 654—the court’s finding tracks the language of section 667.6, subdivision (d).
Specifically, the court concluded Beard had time to reflect but nevertheless resumed
sexually assaultive behavior—in other words, it concluded that the oral copulation count
and the rape count constituted “separate occasions” for purposes of section 667.6,
27.
subdivision (d) and section 667.61, subdivision (i). Because the trial court concluded
Beard committed the oral copulation and rape on “separate occasions,” it was required to
impose consecutive sentences. (§ 667.61, subd. (i).) We find no error.
III. Section 654 Stay
Beard argues his sentence for false imprisonment should be stayed because the
convictions for rape and false imprisonment were predicated on an indivisible act or
transaction that pursued a single intent. Beard caught D.H. when she tried to run away,
forced her to the bed, and raped her, all for the single objective of raping D.H. The
People respond that “[t]he false imprisonment facilitated not only the assault but also the
theft of [D.H.’s] property, for which [Beard] was not separately convicted or sentenced.”
For that reason, the People argue, Beard was appropriately sentenced for false
imprisonment and rape. We agree with the People.
A. Background
In her closing argument, the prosecutor argued the false imprisonment took place
when D.H. “tried to run away from … [Beard], and he grabbed her hand and grabbed her
back.” At sentencing, the court also set out its view of the factual basis for the offense:
“This was the restraint of [D.H.] … during one of the breaks between the sexual attacks
where she attempted to flee out of the bathroom and was restrained forcibly by [Beard].”
The trial court found, with respect to all of the crimes of conviction: first, “the
crimes and their objectives were predominantly independent of each other; second, the
crimes were committed at different times or separate places rather than being committed
so closely in time and in place as to indicate a single period of abhorrent behavior; and
third, the crimes involved separate acts of violence with threats of violence.” Based on
those findings, the court imposed (and did not stay) sentences for each offense.
28.
B. Analysis
As noted in section II.B. of the Discussion, ante, the test for whether separate
sentences can be imposed pursuant to section 654 is “[w]hether a course of criminal
conduct is divisible and therefore gives rise to more than one act.” (Neal, supra, 55
Cal.2d at p. 19.) That inquiry turns on “ ‘the intent and objective’ ” of the defendant.
(Correa, supra, 54 Cal.4th at p. 336.) “ ‘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.’ ” (Ibid.) “In such a case, the proper procedure is to stay execution of sentence
on one of the offenses.” (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) “On the
other hand, if the evidence discloses that a defendant entertained multiple criminal
objectives, which were independent of and not merely incidental to each other, the trial
court may impose punishment for independent violations committed in pursuit of each
objective even though the violations shared common acts or were part of an otherwise
indivisible course of conduct.” (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1112
(DeVaughn).)
“The question of 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. [Citation.] Its findings on this question must be upheld on appeal if
there is any substantial evidence to support them.” (DeVaughn, supra, 227 Cal.App.4th
at p. 1113.) “ ‘ “We must ‘view the evidence in a light most favorable to the respondent
and presume in support of the [sentencing] order the existence of every fact the trier
could reasonably deduce from the evidence. ” ’ ” (Ibid.)
Beard contends the evidence supports only the conclusion that he grabbed D.H.
“as she tried to run out of the bathroom … to enable further sexual contact with her.”
Beard argues there is no evidence “in the record suggesting that grabbing the victim was
necessary to take her laptop from her residence. There was no reported resistance to him
29.
taking the item, nor is there any other evidence suggesting the [false imprisonment and
theft] were related.” The People argue the fact Beard stole D.H.’s laptop suggests that his
objectives in restraining D.H. when she attempted to flee also included stealing her
property.13
As a preliminary matter, we note that Beard’s position on appeal is inconsistent
with the argument defense counsel presented to the jury. At trial, defense counsel argued
the jury should find the burglary with intent to commit rape enhancement not true
because Beard had none of the “supplies that someone who intends to commit a rape
carries with them.” Instead, “the perpetrator had items only that would be considered
useful in a burglary, in a theft.” “[I]t’s a reasonable conclusion that the entry was only
for the purpose of theft.”
Next, the evidence suggested Beard entered the house and restrained D.H. with the
objectives of both stealing from D.H. and raping her. D.H. testified that after the second
act of rape, Beard forced her to walk in front of him around the house to search for
valuables and commented when he found nothing valuable. That evidence supports a
finding Beard planned to steal from D.H. because he searched for valuables. (See People
v. Ratcliffe (1981) 124 Cal.App.3d 808, 818-819.) Committing a theft appeared to be
part of Beard’s plan rather than merely an afterthought. Here, a reasonable trier of fact
could have concluded Beard restrained D.H. with at least two objectives—to rape her and
to force her to show him her valuables so he could steal from her.
13 Alternatively, the People present a wider view of the factual basis for the false
imprisonment conviction: “the court could have reasonably concluded that the false
imprisonment extended through the time that [Beard] led [D.H.] through the house to
rifle through her belongings.” However, we need not reach that argument because we
conclude substantial evidence supported the trial court’s conclusion that the false
imprisonment, committed when Beard grabbed D.H. as she fled, was committed to steal
from D.H. as well as to rape her.
30.
Substantial evidence supported the trial court’s determination that Beard harbored
multiple intents and objectives, including stealing from and raping D.H., when he falsely
imprisoned her. Those objectives were not merely incidental to each other and Beard
was not otherwise punished for the theft offense. (See People v. Davis (1987) 191
Cal.App.3d 1365, 1369 [where the defendant entertained the objectives of robbing and
raping the victim, which “were in no way merely incidental to each other,” the defendant
could be separately punished for rape and kidnapping for purpose of robbery].) For that
reason, the trial court was not required to stay the sentence on the false imprisonment
conviction. (DeVaughn, supra, 227 Cal.App.4th at p. 1112.) We find no error.
IV. Senate Bill No. 136
In supplemental briefing, Beard asserts, and the People concede, that Beard’s nine
1-year enhancements for prior prison terms served for non-sexually violent offenses
should be stricken. We agree.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5,
subdivision (b), to limit prior prison term enhancements to only prior terms that were
served for a sexually violent offense as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill No. 136’s
effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.)
Here, the trial court imposed three 1-year prior prison term enhancements on
counts 1, 2, and 4, for a total of nine additional years. Two of the prior prison terms were
served for second degree burglary and the third was served for possession of a stolen
vehicle and evading a peace officer, none of which are sexually violent offenses as
defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, Beard’s case was not yet final. Therefore, as the parties agree, Beard is entitled to
31.
the ameliorative benefit of Senate Bill No. 136’s amendment to section 667.5,
subdivision (b).14
Because the trial court imposed the maximum possible sentence, there is no need
to remand the matter to the trial court to exercise its discretion. (People v. Buycks (2018)
5 Cal. 5th 857, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
DISPOSITION
The nine section 667.5, subdivision (b), enhancements are stricken. The trial court
is directed to prepare a new abstract of judgment reflecting the modification and forward
a copy to the California Department of Corrections and Rehabilitation. As so modified,
the judgment is affirmed.
SMITH, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.
14 Beard’s claim that enhancements should not have been imposed more than once
per prior prison term is now moot.
32.