People v. Paz

Decision Date14 April 2017
Docket NumberB265251
Citation217 Cal.Rptr.3d 212,10 Cal.App.5th 1023
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Jose Rodriguez PAZ, Defendant and Appellant.

Certified for Partial Publication.*

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

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

LAVIN, J.

INTRODUCTION

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

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 In the unpublished portion of the opinion, we reject defendant's remaining arguments, modify the judgment to clarify the statutory basis for defendant's sentence, and affirm as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

PROCEDURAL BACKGROUND

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

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

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

The court struck the prison priors (§ 667.5, subd. (b)).

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

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

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

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

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

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

CONTENTIONS

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

DISCUSSION

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

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

1.1. Elements of sodomy

A criminal defendant may not be convicted of a crime unless the prosecution proves every fact necessary for conviction beyond a reasonable doubt. (U.S. Const., 5th Amend.; U.S. Const., 14th Amend.; see Cal. Const., art. I, §§ 7, 15 ; In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 ; Jackson v. Virginia (1979) 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560.) This constitutional principle is so fundamental to our system of justice that criminal defendants are always "afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." (United States v. Powell (1984) 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461.)

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

the defendant committed an act of sodomy with another person;
• the other person did not consent to the act; and
the defendant accomplished the act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person.

(§ 286, subd. (c)(2)(A).) Sodomy, in turn, "is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration , however slight, is...

To continue reading

Request your trial
31 cases
  • People v. Cadena, B281175
    • United States
    • California Court of Appeals
    • August 27, 2019
    ..."vagina" colloquially—albeit inaccurately—to refer generally to female genitalia or " ‘private parts.’ " (See People v. Paz (2017) 10 Cal.App.5th 1023, 1037, 217 Cal.Rptr.3d 212 ; People v. Quintana (2001) 89 Cal.App.4th 1362, 1367, 108 Cal.Rptr.2d 235.) For the sake of consistency, we will......
  • People v. Vierra
    • United States
    • California Court of Appeals
    • February 9, 2023
    ...Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).) In People v. Paz (2017) 10 Cal.App.5th 1023, we held the sexual penetration element of sodomy "requires penetration of the tissues that surround and encompass the lower border of the ......
  • People v. Vierra
    • United States
    • California Court of Appeals
    • February 9, 2023
    ...Any sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subd. (a).) In People v. Paz (2017) 10 Cal.App.5th 1023, we held the sexual penetration element of sodomy "requires penetration of the tissues that surround and encompass the lower border of the ......
  • Sosa v. Bird
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • March 17, 2023
    ...statutes do not provide clear definitions or explain precisely what constitutes anal penetration. We turn to People v. Paz (2017) 10 Cal.App.5th 1023 (Paz), which gave thorough treatment to question. In Paz, the court considered the historical development of the sodomy law and its relation ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT