People v. Saphao

• Citation: 24 Cal.Rptr.3d 453,126 Cal.App.4th 935
• Decision Date: 10 February 2005
• Docket Number: No. A103716.,A103716.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edilberto SAPHAO, Defendant and Appellant.

24 Cal.Rptr.3d 453

126 Cal.App.4th 935

The PEOPLE, Plaintiff and Respondent, v. Edilberto SAPHAO, Defendant and Appellant.

No. A103716.

Court of Appeal, First District, Division 2.

February 10, 2005.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing March 1, 2005.

Review Granted June 8, 2005.

David D. Martin, Under the Assisted Case Assignment of the First District Appellate Project, for Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Christina Vom Saal, Deputy Attorney General, for Respondent.

RUVOLO, J.

Appellant Edilberto Saphao appeals from his convictions of rape, penetration with a foreign object, and assault with a firearm. We affirm, concluding in the published portion of this opinion that: (1) there was no legal error in the trial court's determination that the sex offenses did not occur on a "single occasion" under Penal Code section 667.61¹; (2) the imposition of two separate sentences pursuant to section 667.61 was error because the trial court's, rather than the jury's, factual finding that the offenses did not occur on a "single occasion" resulted in an increase in Saphao's sentences, and therefore, violated Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely); (3) such Blakely error was harmless beyond a reasonable doubt; (4) the court did not err in ordering the separate sentences to be served consecutively pursuant to section 667.6, rather than under section 667.61; and, (5) the court's imposition of consecutive sentences upon a finding that the offenses occurred on "separate occasions" under section 667.6 was supported by substantial evidence and did not violate Blakely.

In the unpublished portion of this opinion we reject Saphao's additional arguments that the firearm enhancement was inadequately pled, and that there was insufficient evidence that he used a firearm, thereby requiring that both the conviction for assault with a firearm and the enhancements for firearm use be invalidated.

I. PROCEDURAL BACKGROUND

Saphao was charged by amended information with sexual penetration with a foreign object (count 1) (§ 289, subd. (a)(1)), forcible rape (count 2) (§ 261, subd. (a)(2)), assault with a firearm (§ 245, subd. (a)(2)), and two counts of assault with a stun gun (counts 3 & 4) (§ 244.5, subd. (b)). The information also alleged that Saphao used a dangerous or deadly weapon or firearm and tied or bound the victim in committing counts 1 and 2 (§ 667.61, subds. (e)(2), (e)(4) & (e)(6)). The information further alleged that Saphao used a firearm in the commission of the sex offenses (§§ 12022.5, subd. (a)(1), & 12022.53, subd. (b)).

The trial court dismissed the two counts of assault with a stun gun based on insufficient evidence. A jury found Saphao guilty of the remaining counts and found the enhancing allegations true. At sentencing, the trial court found that the two sexual offenses committed by Saphao did not occur on a "single occasion" under section 667.61, subdivision (g). The court sentenced him to a prison term of 25 years to life for each sex offense, to run consecutively. This timely appeal followed.

II. FACTUAL BACKGROUND

I.F.², a 20-year-old college student, lived with her mother and stepfather, Edilberto Saphao. On August 22, 2002, at about 1:30 p.m., she was home alone taking a shower. After her shower, she went to her bedroom and dressed. As she left her bedroom, a man wearing a ski mask jumped out of an adjacent room and grabbed her. I.F. struggled with the man, who used a stun gun to repeatedly sting her neck, arm and leg. He also carried a small black gun that I.F. "wasn't sure ... was a real gun or not," but which appeared to be a handgun. I.F. described the man as being about five feet, nine inches tall, 150 to 160 pounds, and having brown eyes. He wore a dark knit ski mask with eye-holes, and a dark blue uniform shirt. The shirt had a patch on the shoulder with the word "cadet" in gold.

The man handcuffed I.F.'s hands behind her back and put duct tape over her mouth and eyes. He pushed I.F. onto the bed in the guest room, where he touched her vagina over her underwear. I.F. heard the man leave the room and open drawers in her bedroom. He returned and inserted his fingers in I.F.'s vagina while she was still on the bed.

The man then went downstairs and out the back door of the house. I.F. knew he went into the backyard because the home had a doorbell chime that sounded when the door to the backyard was opened. He returned and bound I.F.'s ankles with straps, one to a chair and one to another object. At some point after the man returned from the backyard, she felt him put something cold against her temple and she heard a click. I.F. thought it was a gun. The man pulled up I.F.'s dress and sucked her right breast. I.F. felt something limp brush against her vagina. Then, the man "thrusted once," and she felt something penetrate her vagina. At the time, she was not sure if the man penetrated her with his penis, but later realized he did.

I.F. heard the man go down the stairs and exit her home. She then heard the door open and Saphao entered the house. She sat up and removed the tape from her eyes and mouth and the strap from her left ankle, and called 911. The 911 tape was played for the jury. Saphao's voice can be heard in the background of that telephone conversation.

Police arrived while I.F. was still on the telephone with the 911 operator. Saphao was in the front room with I.F., who was still handcuffed. Police officer Becky Campbell testified that I.F. had six red marks equidistant apart that were consistent with stun gun injuries. After removing I.F.'s handcuffs with bolt cutters, police transported her to North Bay Medical Center for a sexual assault exam.

Saphao remained at the home while Detective Joel Orr and other officers conducted their investigation. Detective Orr asked him to sign a consent form to search the house and two vehicles police observed in the driveway, which Saphao did. Police found a third vehicle during their search of the garage, which Saphao stated was his. Saphao consented to a search of the vehicle, and unlocked it for police. Inside, police found a "Fairfield Police Department[-] type shirt with our patches and cadet rockers above them." They also found an officer's badge, a stocking mask with holes cut in it, a black belt, gloves, a sexual device, a stun gun, and a revolver with two rounds of ammunition.

Detective Orr interviewed I.F. at the hospital. She told him that she believed her assailant was her stepfather based on "the way he breathed, the way he smelled, his height, his build, the color of his skin [and] his mannerisms." I.F. revealed that her stepfather had molested her for years as a child, only stopping when she was 13 years old and yelled "no" loudly in front of her mother.

Registered nurse Judy Herriman conducted a sexual assault examination of both I.F. and Saphao. The examination of I.F. revealed scratches and bruises, red marks consistent with stun gun injuries, vaginal bruising and bleeding, a torn hymen and a foreign pubic hair. Nurse Herriman took swabs from I.F.'s breasts, which revealed saliva consistent with Saphao's genetic profile. She also took swabs from Saphao's penis and scrotum, which contained blood consistent with I.F.'s genetic profile.

Tanya Vermeulen, a senior criminalist with the California Department of Justice, performed the genetic testing of the material on the swabs. She testified that the genetic profile of the DNA found in the saliva taken from I.F.'s breast was found in approximately one in 620 billion African Americans, one in 720 billion Caucasians, and one in 1.4 trillion Hispanics. The genetic profile found in the blood swab taken from Saphao's penis and scrotum is found in approximately one in 12 trillion African Americans, one in 9.9 trillion Caucasians, and one in 3 trillion Hispanics.

III. DISCUSSION

A. Imposition of Two 25-Years-to-Life Sentences Under Section 667.61

Saphao contends that the trial court erred in imposing two 25-years-to-life sentences pursuant to section 667.61. Section 667.61 mandates a sentence of 15 or 25 years to life when a defendant is convicted of certain sex offenses committed under enumerated aggravating circumstances. (§ 667.61, subds. (c) & (e).) The aggravating circumstances must be "alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (i).) Multiple sentences under section 667.61 are imposed under certain conditions. Section 667.61 provides in that regard as follows: "The term specified ... shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion...." (§ 667.61, subd. (g).) This provision "may only be reasonably interpreted as providing separate terms for offenses committed on each single occasion." (People v. Jackson (1998) 66 Cal. App.4th 182, 193, 77 Cal.Rptr.2d 564.)

Saphao argues that the court erred in finding that the sexual offenses did not occur during a "single occasion" because it "misapplied" the test set forth in People v. Jones (2001) 25 Cal.4th 98, 104 Cal.Rptr.2d 753, 18 P.3d 674 (Jones). In Jones, the defendant was convicted of forcible rape, three counts of forcible sodomy and forcible oral copulation. (Id. at p. 102, 104 Cal.Rptr.2d 753, 18 P.3d 674.) All five sex crimes were committed in the backseat of an automobile over an estimated hour and a half time period. (Id. at p. 101, 104 Cal.Rptr.2d 753, 18 P.3d 674.) The three sodomy offenses took place over a period of approximately one hour. (Ibid.)

The court analyzed the meaning of "single occasion" under subdivision (g) of section 667.61, contrasting it with the "separate occasion" language of section 667.6. (Jones, supra, 25...