IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A115488

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1 Filed 3/11/08 P. v. Apodaca CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. AARON L. APODACA, Defendant and Appellant. A (Alameda County Super. Ct. No ) A jury convicted defendant Aaron L. Apodaca of forcible rape and forcible sodomy. (Pen. Code, 261, subd. (a)(2); 286, subd. (c)(2).) 1 The jury found that the sex offenses were committed in the course of the commission of a first degree burglary ( , subd. (e)(2)), and that defendant personally used a dangerous or deadly weapon in the commission of the sex offenses ( , subd. (e)(4)). The trial court sentenced defendant to two consecutive sentences of 25 years to life, one for each sex offense. Defendant raises various challenges to his conviction and sentence. We reject all but one: the contention that the second consecutive sentence of 25 years to life was not authorized by statute. The Attorney General concedes error on this issue. Accordingly, we will remand for resentencing. 1 Subsequent statutory references are to the Penal Code unless otherwise indicated. 1

2 I. FACTS Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.) Defendant committed the sex offenses in He was arrested in 2005 following a DNA match. The victim, Laura Doe, was sitting at her computer in her Alameda apartment at approximately 5:00 p.m. on June 11, Defendant kicked in the front door, held a knife to Doe s throat, threatened to kill her, and tore the telephone cords out of the wall. He demanded money from Doe, and took between $60 to $80. He then ordered Doe to disrobe. She refused. He took out his penis and ordered Doe to suck it. She refused. Defendant reminded Doe that he had a knife. After a struggle, Doe removed her clothes. Defendant took her into the bathroom at knifepoint. He hit her head against the vanity and the toilet, after which Doe stopped resisting him. Defendant placed his knife on the inside of Doe s thigh. He then penetrated Doe s vagina and anus with his finger and his penis. Defendant told Doe, you can thank your neighbor for this, and mentioned a name which sounded like Angelo. (Doe had twice complained to her landlord about noise from a neighbor s apartment.) Defendant then left, after telling Doe he would kill her if she called the police. Doe positively identified defendant at trial as the man who forcibly raped and sodomized her while armed with a knife. The parties stipulated that defendant s fingerprint was found on a telephone in Doe s apartment. In November and December 2001, sperm taken from Doe s body during a sexual assault examination was subjected to a DNA profile analysis and entered in the DNA database for unsolved crimes. On August 19, 2004, the DNA profile of the sperm taken from Doe s body was found to match defendant s DNA profile in the database. 2

3 On April 6, 2005, two police officers, Deutsche and Dwyer, went to Corcoran State Prison where defendant was in custody on an unrelated offense. The officers executed a search warrant to obtain a fresh DNA sample from defendant. The officers Mirandized and then questioned defendant. A tape of that interview was played for the jury. At the outset of the interview, defendant said he could not remember June of He recognized a picture of a man he knew as Angelo, who was one of Doe s neighbors at the time of the sexual assault. Defendant admitted he had visited Angelo daily and sometimes stayed with him for three or four days at a time. Defendant denied ever seeing or talking to any of Angelo s neighbors. Defendant asked the officers why they were talking to him. Officer Deutsche told defendant his DNA and fingerprints had been found in the apartment of Angelo s neighbor, who had been raped in her bathroom. Then defendant began to talk about the sexual assault on Doe. Defendant told the officers he broke into Doe s apartment to steal money and was surprised she was there. He took about $60 from her and demanded she remove her clothes so she could not follow him. He guess[ed] that seeing her undress triggered something ; he was a little deranged,... mixed up on drugs. He guess[ed] he forced myself upon her. He admitted trying to penetrate Doe vaginally, but did not think he succeeded: it didn t really work. He admitted it was possible he had anal sex with Doe. Defendant could not remember whether he had a knife with him at the time of the sexual assault, but admitted he carried a knife frequently and he would have used a knife if he had one: I had been in prison. Stabbed people. And I wasn t afraid to use a knife. So, that was my thing, I used a knife. He didn t think he stabbed Doe, but it s more than likely that I threatened her. Defendant told the officers that Angelo had called him sometime after the sexual assault: I do remember now, Angelo calling me and telling me: What d you do brother? You know what I mean. What d you do? That neighbor said you raped 3

4 her. Defendant told the officers he replied to Angelo: What! Whatever, man. She s tripping. On April 13, 2005, the DNA lab received the fresh DNA sample the two officers took from defendant. On May 9, 2005, the fresh sample was used to confirm the DNA match. Defendant testified. He admitted prior convictions for auto and residential burglary, auto theft, forgery using another person s credit card, and possession of narcotics for sale. He testified he broke into Doe s apartment for money, was surprised to see her there, and only decided to rape her after he forced her to undress. He admitted trying to rape Doe, but claimed he did not achieve penetration of her vagina or anus with his penis. He did not believe he had a knife with him. He denied telling Doe she could thank [her] neighbor for the sexual assault. He was under the influence of drugs at the time of the assault. The People had charged defendant with two counts of forcible rape (counts 1 and 4) and two counts of forcible sodomy (counts 2 and 3). The jury convicted defendant of one count of forcible rape (count 1) and one count of forcible sodomy (count 2). With regard to each count, the jury found that the offense was committed during the course of a burglary of an inhabited dwelling, and that defendant personally used a dangerous and deadly weapon. The jury apparently could not reach a verdict on counts 3 and 4, which were dismissed on motion of the People. The trial court sentenced defendant to 25 years to life on count 1, a consecutive sentence of 25 years to life on count 2, and an additional 1 year for two prior convictions, for a total term of 51 years to life. II. DISCUSSION Defendant contends (1) his prosecution is time-barred; (2) the court erred by giving CALCRIM No. 362; (3) his prison statement was involuntary; (4) the second consecutive sentence violated his right to jury trial; (5) the second consecutive sentence, on count 2, was not authorized by statute; and (6) his sentence constitutes cruel and unusual punishment. We reject all contentions but (5), in which the People concede 4

5 error. Accordingly, we affirm the conviction and the indeterminate sentence on count 1, but remand for resentencing on count Purported Revival of Statute of Limitations. The parties agree that at the time of defendant s offenses, the statute of limitations was six years. Thus, the statute of limitations would have expired on June 10, The parties further agree that in 2000, before the expiration of the limitations period, the Legislature extended the limitations period to 10 years. Defendant contends that the Legislature revived an expired limitations period in violation of the ex post facto clause as interpreted by Stogner v. California (2003) 539 U.S. 607 (Stogner). But the Legislature did not revive an expired limitations period, but extended one prior to expiration. This is constitutionally permissible. (Stogner, supra, at pp ; People v. Terry (2005) 127 Cal.App.4th 750, ) An arrest warrant issued for defendant on April 26, 2005, within 10 years from the date of the offenses. There is no ex post facto violation. 2. CALCRIM No This instruction, the successor to former CALJIC No. 2.03, tells the jury that if a defendant makes a knowingly false, or intentionally misleading, statement relating to the crime charged, that statement may show an awareness of guilt. The trial court gave the instruction because of defendant s false statement to Angelo that Doe was tripping when she accused him of raping her. Defendant contends the instruction should not have been given because the statement that Doe was tripping was equivocal. But tripping is clearly slang for telling a story or disregarding fact, and is not equivocal. Defendant also contends the instruction should not have been given because his statement that Doe was tripping about the rape accusation was not inconsistent with his trial testimony that he only attempted to rape Doe, but did not succeed in committing actual rape. He relies on People v. Rubio (1977) 71 Cal.App.3d 757 (Rubio), which has been soundly rejected as having been overruled sub silentio by the California Supreme Court on the issue before 5

6 us. 2 (See People v. Williams (1995) 33 Cal.App.4th 467, ; People v. Edwards (1992) 8 Cal.App.4th 1092, ) As these two cases observe, CALJIC No and therefore CALCRIM No. 362 may be given even if a false pretrial statement is consistent with a defendant s self-serving trial testimony. 3. Purported Involuntariness of Defendant s Prison Statement. Defendant contends that his prison statement to Officers Dwyer and Deutsche was involuntary. The trial court conducted an Evidence Code section 402 hearing, at which Officer Deutsche testified, and concluded the statement was voluntary. Defendant disagrees, pointing to the inherently coercive setting of state prison and Officer Dwyer s passing reference to his own belief in God at the outset of the interview, in response to defendant s mentioning that he had become a Jehovah s Witness. But we accept the trial court s factual conclusions and independently conclude that the statement was voluntary after our review of the record. (See People v. Maury (2003) 30 Cal.4th 342, ; People v. Whitson (1998) 17 Cal.4th 229, 248.) Defendant relies on cases in which the police used extreme methods of religious-based psychological ploys to provoke a statement. That is not the case here when the religious reference is put in context. Defendant, moreover, conceded at trial that he freely made the statements to the officers. 4. Alleged Cunningham Error in Consecutive Sentencing. Defendant contends his consecutive sentence on count 2 violates his right to jury trial under the rule of Cunningham v. California (2007) 549 U.S., [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham). But Cunningham does not apply to consecutive sentencing. (People v. Black (2007) 41 Cal.4th 799, ) 5. Imposition of Two Consecutive Sentences. Defendant contends he should only have been sentenced to one consecutive term of 25 years to life under the applicable statute. The Attorney General agrees. So do we. 2 The court expressly disapproved Rubio, supra, 71 Cal.App.3d 757 on a separate, unrelated ground. (People v. Freeman (1978) 22 Cal.3d 434, ) 6

7 The trial court sentenced defendant as follows: THE COURT: Okay. As to Count 1, Mr. Apodaca, you will be sentenced as follows: That sentence for the forcible rape during a residential burglary, with the... personal use of a knife, is a mandatory 25-years-to-life in prison, and that will be the sentence for Count 1. [ ] As to Count 2, forcible sodomy during a residential burglary, [with the] personal use of a knife, [the sentence] will be 25-to-life and that will be consecutive. For the two priors, under [section] 667.5(b), there will be one year, [an] additional one year, for a total of 51-years-to-life. The parties agree that at the time defendant committed his offense and at the time of sentencing, the commission of the sex offenses during a residential burglary and while armed with a knife placed defendant under the One Strike Law ( ) and subjected him to a sentence of 25 years to life for offenses against a single victim on a single occasion. The People concede that under the reasoning of People v. Jones (2001) 25 Cal.4th 98, (Jones), interpreting former section , subdivision (g), defendant could only be sentenced to one 25 years-to-life term because the rape and the sodomy were committed on a single occasion, i.e., were committed in close temporal and spatial proximity. (Jones, supra, at p. 107.) We therefore hold that the consecutive sentence of 25 years to life on count 2 is invalid as unauthorized by statute. There remains the question of remedy. As the Attorney General observes, former section , subdivision (g) provided that a sentence for a second sex offense committed on a single victim on a single occasion could be imposed under section (See Jones, supra, 25 Cal.4th at p. 104.) The Attorney General contends that under section 667.6, subdivision (d), the trial court must impose a consecutive determinate term on count 2 because that offense was committed on a separate occasion, a phrase statutorily defined differently than single occasion. ( 667.6, subd. (d); see Jones, supra, at pp ) But that would require the trial court to make certain findings. And, as defendant points out, under the law in effect in 1995 a consecutive sentence would not be mandatory on count 2, but the trial court would have discretion to sentence concurrently. 7

8 We therefore remand for resentencing to a determinate term on count 2, either consecutive or concurrent. 6. Cruel and Unusual Punishment. Defendant contends that section is unconstitutional because a sentence of 25 years to life under the circumstances of this case amounts to cruel and unusual punishment. But such a sentence, for a forcible rape and a forcible sodomy committed during the course of a burglary, is not cruel and unusual punishment for the reasons set forth in People v. Alvarado (2001) 87 Cal.App.4th 178, , and People v. Estrada (1997) 57 Cal.App.4th 1270, ) No circumstances personal to defendant are sufficient to render such a sentence cruel and unusual as to him. III. DISPOSITION The conviction and the indeterminate sentence on count 1 are affirmed. The indeterminate sentence on count 2 is reversed, and the matter is remanded for resentencing on count 2. Marchiano, P.J. We concur: Stein, J. Margulies, J. 8