Filed 8/24/20 P. v. Jaramillo CA2/6

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


 THE PEOPLE,                                                   2d Crim. No. B296712
                                                            (Super. Ct. No. 18CR05562)
      Plaintiff and Respondent,                               (Santa Barbara County)

 v.

 JORGE PEREZ JARAMILLO,

      Defendant and Appellant.




      Jorge Perez Jaramillo appeals the judgment entered after a
jury convicted him of attempted rape of an unconscious or asleep
person (Pen. Code,1 §§ 261, subd. (a)(4)(A), 664; count1) and
attempted forcible rape (§§ 261, subd. (a)(2), 664; count 2).2 The

      All statutory references are to the Penal Code unless
         1

otherwise noted.

        Appellant was charged with rape of an unconscious or
         2

asleep person and forcible rape. The jury found him not guilty of
trial court sentenced him to three years in state prison,
consisting of the midterm of three years on count one and a
concurrent three-year term on count 2. Appellant was also
ordered to pay various fines, fees and assessments including a
$900 restitution fine (§ 1202.4, subd. (b)), $80 in court operations
assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal
conviction assessments (Gov. Code, § 70373).
       Appellant contends that his conviction of attempted forcible
rape in count 2 must be reversed because insufficient evidence of
the charge of forcible rape was adduced at the preliminary
hearing, and the evidence at trial was insufficient to establish the
force element of the offense. Appellant also contends that a
concurrent term was imposed on count 2 in violation of section
654. Finally, appellant claims the court erred in imposing the
restitution fine and the court operations and criminal conviction
assessments without first determining his ability to pay them, as
contemplated in People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas). We affirm.
                    STATEMENT OF FACTS
                            Prosecution
       On the night of May 31, 2018, Jane Doe went to her friend
Janie Tinoco-Thornhill’s home in Santa Maria with plans to stay
the night. Doe knew Tinoco-Thornhill through Tinoco-Thornhill’s
roommate Juan Posada, whom Doe had previously dated.
       After Doe and Tinoco-Thornhill purchased beer, Doe drank
a 32-ounce beer in the garage of the house. Doe later purchased
another 32-ounce beer and returned to the garage at about


those offenses, but guilty of the lesser included offenses of
attempted rape of an unconscious or asleep person and attempted
forcible rape.




                                 2
midnight. At about 2:00 or 2:30 a.m., appellant, whom Doe had
not previously met, joined Doe and Tinoco-Thornhill in the
garage. After Doe had consumed about one-fifth of her second
beer, she, appellant, and Tinoco-Thornhill each drank a shot of
tequila.
        Doe, Tinoco-Thornhill, and appellant purchased food and
returned to the garage. A short time later Doe vomited in the
hallway bathroom. Tinoco-Thornhill took Doe into her bedroom.
Tinoco-Thornhill then returned to the garage and had sex with
appellant.
        Doe lay down on Tinoco-Thornhill’s bed while fully clothed
and fell asleep. She later woke up to discover that her pants and
underwear were pulled down and that a man she later identified
as appellant was lying behind her and “having sex with [her],”
i.e., his “penis was inserted in [her] vagina.” Doe reached back
and stated, “Who the fuck are you?” and “What the fuck are you
doing?” She told appellant to “stop” but he did not do so. When
Doe extended her left arm toward appellant and tried to turn
around, he “grabbed” her wrist, “directed it back in the position it
was,” and said “Shhhh.” Appellant eventually stopped having
intercourse with Doe, left the bedroom, and entered the hallway
bathroom. Doe then recognized appellant as the perpetrator.
        Doe went to Posada’s bedroom and lay down in the bed next
to Posada. She was crying but did not tell Posada what had
happened. Posada told Doe he would drive her home, but Doe
replied that she wanted Tinoco-Thornhill to do so. Doe then went
into the hallway and told Tinoco-Thornhill that appellant had
raped her. Tinoco- Thornhill drove Doe home and Doe called the
police.




                                 3
       Later that morning, a sexual assault examination was
performed on Doe. A low amount of male DNA was subsequently
detected on a swab obtained from Doe’s inner thigh and on the
non-sperm fractions of swabs taken from Doe’s posterior
fourchette and vagina. An analysis of the swab from Doe’s inner
thigh resulted in a partial Y haplotype (DNA profile) which was
consistent with appellant’s reference haplotype. Appellant was
excluded as a DNA contributor to the sperm fraction of the
posterior fourchette swab. Swabs from Doe’s underwear and the
waistband of her pants both contained a mixture of DNA from at
least two males, with one major contributor and at least one
minor contributor. Appellant could not be excluded as the major
source of the DNA because the detected major haplotype was
consistent with his reference haplotype.
       Jamie Gerigk testified as an expert on rape trauma
syndrome. Gerigk described the three stages of rape trauma
syndrome: (1) in the acute stage after the assault, the victim
often feels shock, disbelief, and confusion; (2) in the outward
adjustment stage, the victim tries to forget the assault but starts
to decline emotionally; and (3) in the resolution stage, the victim
starts to emotionally deal with the assault.
                               Defense
       The day after the incident, Doe told the police that
appellant had ejaculated inside of her. She also said she had
difficulty understanding what had happened because she was
very intoxicated when the incident happened.
       Marc Taylor, the owner and director of a Ventura forensic
science laboratory, reviewed the forensic tests performed in
appellant’s case. Taylor found no evidence of vaginal penetration
from the DNA results as to the vaginal swab. Taylor also opined




                                 4
that the DNA found on the inner thigh swab did not require
sexual activity. Taylor also explained that it is difficult to
exclude an individual as the contributor of DNA when the
detected DNA is a mixture of multiple individuals.
                           DISCUSSION
                      Count 2 - Information
       Appellant contends his conviction of attempted forcible
rape in count 2 must be reversed because the charged offense of
forcible rape was not supported by evidence presented at the
preliminary hearing. We disagree.
       An information filed after a preliminary hearing “must
‘charge the defendant with either the offense or offenses named
in the order of commitment or any offense or offenses shown by
the evidence taken before the magistrate to have been
committed.’ (§ 739.) The information cannot thereafter be
amended ‘so as to charge an offense not shown by the evidence
taken at the preliminary examination.’ (§ 1009.) A defendant
charged by information may move the court [under section 995]
to dismiss one or more of the counts on the ground that it was not
supported by a finding of reasonable or probable cause at the
preliminary hearing. [Citations.]” (Griffith v. Superior Court
(2011) 196 Cal.App.4th 943, 948-949.) In reviewing the denial of
a section 995 motion on such grounds, “we must draw all
reasonable inferences in favor of the information [citations] and
decide whether there is probable cause to hold the defendant[] to
answer, i.e., whether the evidence is such that ‘a reasonable
person could harbor a strong suspicion of the defendant’s guilt’
[citations].” (Lexin v. Superior Court (2010) 47 Cal.4th 1050,
1072.)




                                5
       “‘Forcible rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator against the
person’s will by means of force or violence.’” (People v. Clark
(2011) 52 Cal.4th 856, 948 (Clark).) To establish the offense, “‘the
prosecution need only show the defendant used physical force of a
degree sufficient to support a finding that the act of sexual
intercourse was against the will of the [victim].’ [Citation.]”
(People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.)
       Appellant was charged in a single-count felony complaint
with rape of an unconscious or asleep person in violation of
section 261, subdivision (a)(4)(A). Following the conclusion of
Doe’s testimony at the preliminary hearing, the prosecutor stated
his intent to add an additional charge of forcible rape in violation
of section 261, subdivision (a)(2). Defense counsel objected,
contending that Doe’s testimony was insufficient to prove the
force element of the offense. The prosecutor replied that the force
element was established by Doe’s testimony that appellant
continued having intercourse with her after she woke up and told
him to stop, as well as her testimony that appellant had grabbed
her wrist and “direct[ed] [her] arm out of the way” when she
reached out toward him.
       The trial court concluded that although it was a “close
question” on the issue of force, the evidence was sufficient to hold
appellant to answer on the charge of forcible rape. The court
reasoned that “[Doe] did wake to find herself in a situation where
she was in physical intimacy that she did not consent to, and was
unable, for those critical moments, to disengage because of the
physical proximity that he had placed himself in, and the
redirection of her arm movements are part of that. As an
alternative description of the event, I think there is probable




                                 6
cause, a point you can review more closely on a 995 motion, but I
think the probable cause is there for that characterization on it.”
       After the two-count information was filed, appellant filed a
section 995 motion to dismiss count 2 (forcible rape) on the
ground there was insufficient evidence to prove the force element
of the offense. The trial court denied the motion.
       The magistrate did not err in holding appellant to answer
on the charge of forcible rape. At the preliminary hearing, Doe
testified that appellant continued having intercourse with her
after she told him to stop. When she reached out toward him, he
grabbed her wrist and moved her arm out of the way. A
reasonable trier of fact could thus find that appellant used
physical force against Doe such that his act of sexual intercourse
was against her will. (See, e.g., Clark, supra, 52 Cal.4th at p. 949
[evidence was sufficient to support force element of attempted
forcible rape where victim yelled “Stop” and “Leave me alone”];
see also People v. Griffin, supra, 33 Cal.4th at p. 1029 [evidence
was sufficient to support finding that defendant used force in
committing rape where he “pinned [the victim’s] arms to the floor
as he penetrated her vagina with his penis” and “[t]he victim
unequivocally testified she did not consent to the act of
intercourse and that it was accomplished against her will”].)
       Contrary to appellant’s claim, it is of no moment whether
his actions “prevented [Doe] from turning her body.” It is well-
settled that “[t]he question for a jury considering the charge of
forcible rape is ‘whether defendant used force to accomplish
intercourse with [the victim] against her will, not whether the
force he used overcame [her] physical strength or ability to resist
him.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 641, fn.
15.) Appellant’s claim that the evidence produced at the




                                 7
preliminary hearing failed to support the charge of forcible rape
accordingly fails.
                    Sufficiency of the Evidence
       Appellant also contends the evidence is insufficient to
support his conviction of attempted forcible rape. In reviewing
such claims, we “must review the whole record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—i.e., evidence that is credible and of solid
value—from which a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.” (People v. Nguyen
(2015) 61 Cal.4th 1015, 1054-1055, internal quotation marks
omitted.) We “presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the
evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We
do not resolve evidentiary conflicts. (People v. Yeoman (2003) 31
Cal.4th 93, 128.) “A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (Zamudio, at p. 357.)
       Appellant’s sufficiency-of-the-evidence claim is premised
solely on the force element of the offense. As we already
explained in rejecting appellant’s first claim, the evidence is
sufficient to support a finding that appellant used force against
Doe such that his act of sexual intercourse was committed
against her will. Moreover, appellant was convicted of attempted
forcible rape. “Other than forming the requisite criminal intent,
a defendant need not commit an element of the underlying
offense.” (People v. Medina (2007) 41 Cal.4th 685, 694.) The
issue is thus not whether appellant actually used enough force to




                                8
overcome Doe’s will, but rather whether he attempted to do so.
Appellant’s claim of insufficient evidence thus fails.
                                § 654
       Appellant contends the court imposed a concurrent three-
year term on count 2 (attempted forcible rape) in violation of
section 654 because the offenses in counts 1 and 2 were based on
a single physical act. He argues that “[a]ccording to Jane Doe, at
the time appellant grabbed her wrist, his penis was already
inside her. The act had been accomplished. There was no
showing of multiple objectives or intents. [Citation.] This was a
single act constituting an indivisible transaction.” We are not
persuaded.
       “Section 654, subdivision (a), provides: ‘An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.’” In
determining whether a defendant may be subject multiple
punishment under section 654, “[w]e [must] first consider if the
different crimes were completed by a ‘single physical act.’
[Citation.] If so, the defendant may not be punished more than
once for that act.” (People v. Corpening (2016) 2 Cal.5th 307,
311.) “Whether a defendant will be found to have committed a
single physical act for purposes of section 654 depends on
whether some action the defendant is charged with having taken
separately completes the actus reus for each of the relevant
criminal offenses. [Citations.]” (Id. at p. 313.)
       The trial court did not violate section 654 by imposing a
concurrent term on count 2. Count 1 was based on appellant’s
attempt to have sexual intercourse with Doe while she was




                                 9
unconscious or asleep and was thus unable to give consent.
(§ 261, subd. (a)(4)(A).) After it was clear to appellant that Doe
was actually awake, he attempted to use force to have intercourse
with her against her express will. Because the use or attempted
use of force is an element of attempted forcible rape (§ 261, subd.
(a)(2)), appellant did not complete the actus reus of that crime
until he attempted to use such force. The court thus did not err
in implicitly finding that the two crimes were not completed by a
single physical act, such that multiple punishment was not
barred under section 654.
       Moreover, section 654 “does not prohibit the imposition of
multiple punishment for separate sexual offenses committed
during a continuous attack, ‘even where closely connected in
time.’ [Citations.].” (People v. Hicks (1993) 6 Cal.4th 784, 788,
fn. 4.). “[I]f a series of acts are committed within a period of time
during which reflection was possible [citation], section 654 does
not apply.” (People v. Kelly (2016) 245 Cal.App.4th 1119, 1136.)
“Under section 654, ‘a course of conduct divisible in time,
although directed to one objective, may give rise to multiple
violations and punishment. [Citations.]’ [Citations.] This is
particularly so where the offenses are temporally separated in
such a way as to afford the defendant [the] opportunity to reflect
and renew his or her intent before committing the next one,
thereby aggravating the violation of public security or policy
already undertaken. [Citation.]” (People v. Gaio (2000) 81
Cal.App.4th 919, 935.)
       Appellant, believing that Doe was asleep or unconscious,
began having sexual intercourse with her. After she told him to
stop and reached her arm back toward him, he had ample time to
reflect upon what he was doing. Instead of stopping, he moved




                                 10
Doe’s arm out of his way and continued having intercourse with
her. Because appellant’s actions constituted two separate acts
between which he had an opportunity to reflect, the court did not
violate section 654 by sentencing him on both counts of
conviction. (People v. Kelly, supra, 245 Cal.App.4th at p. 1136.)
                               Dueñas
        Appellant contends the court erred in ordering him to pay a
$900 restitution fine (§ 1202.4, subd. (b)), $80 in court operations
assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal
conviction assessments (Gov. Code, § 70373), without first
determining his ability to pay those fines and assessments, as
contemplated in Dueñas, supra, 30 Cal.App.5th 1157. We are not
persuaded.
        Appellant was sentenced on March 28, 2019, almost three
months after the opinion in Dueñas was issued. Appellant could
have, but did not, raise his current claims at the time of
sentencing. Accordingly, we agree with the People that
appellant’s Dueñas claim is forfeited. (See People v. Trujillo
(2015) 60 Cal.4th 850, 859.)
        In any event, the claim lacks merit. In Dueñas, the court
concluded that “due process of law requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s
present ability to pay before it imposes court facilities and court
operations assessments under . . . section 1465.8 and
Government Code section 70373.” (Dueñas, supra, 30
Cal.App.5th at p. 1164.) The court also concluded that “although
. . . section 1202.4 bars consideration of a defendant’s ability to
pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed
under this statute must be stayed unless and until the trial court




                                11
holds an ability to pay hearing and concludes that the defendant
has the present ability to pay the restitution fine.” (Ibid.)
      With respect to appellant’s $900 restitution fine, the trial
court had the authority, even before Dueñas, to “consider[ ]” the
defendant’s “[i]nability to pay” whenever it “increase[ed] the
amount of the restitution fine” in excess of the $300 minimum.
(§ 1202.4, subds. (b)(1), (c).) When a statute mandates a fine but
requires the court to consider the defendant’s ability to pay, the
burden is on the defendant to object or demand a hearing to
determine the ability to pay. (People v. McMahan (1992) 3
Cal.App.4th 740, 749-750.) At sentencing, appellant did not
object or demand a hearing regarding his ability to pay the
restitution fine, so he forfeited his right to challenge that fine on
appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)
Because appellant failed to object to the $900 restitution fine by
asserting an inability to pay, he also cannot be heard to complain
that the court failed to consider his ability to pay the $60 in
criminal conviction assessment and $80 court operations
assessment. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027,
1033.)
      In any event, “Dueñas is distinguishable. That case
involved a homeless probationer, Velia Dueñas, who suffered
from cerebral palsy and was unable to work. [Citation.]” (People
v. Johnson (2019) 35 Cal.App.5th 134, 138.) Appellant, who was
sentenced to prison, “is not similarly situated to the misdemeanor
probationer in Dueñas. He was ordered to pay mandatory fees
and a fine under the same constellation of statutes that were at
issue in Dueñas, but there the similarity ends.” (Id. at p. 139.)
      As the trial court noted, appellant will have the ability to
earn wages while in prison. Any due process violation arising




                                 12
from the court’s failure to consider appellant's ability to pay the
challenged assessments was thus harmless beyond a reasonable
doubt. (Id. at pp. 139-140 citing Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705].)
                          DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.




                                      PERREN, J.


We concur:



      YEGAN, Acting P. J.



      TANGEMAN, J.




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                   John F. McGregor, Judge
            Superior Court County of Santa Barbara
               ______________________________

      Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Chung L. Mar, Deputy Attorney General,
for Plaintiff and Respondent.




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