Filed 9/24/14 P. v. Langarica CA3
                                           NOT TO BE PUBLISHED



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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or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C069062

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. SF110015B
                                                                                      & SF110015A)
         v.

GABRIEL ARMANDO LANGARICA et al.,

                   Defendants and Appellants.




         A jury convicted codefendants and brothers Gabriel Langarica and Phillip Corral
of kidnapping for ransom or extortion, rape by force or fear, forcible oral copulation,
assault with intent to commit sex crimes during the commission of a burglary, robbery,
burglary, and criminal threats. The trial court sentenced Langarica to 25 years to life on
each count for rape and oral copulation; life with the possibility of parole on the count for
kidnapping; and a determinate term of 12 years four months for the other counts. Due to



                                                             1
Corral’s prior criminal record, the trial court sentenced him to 50 years to life on each
count for rape and oral copulation; life with the possibility of parole on the count for
kidnapping; and a determinate term of 31 years eight months. The trial court ordered
both defendants to pay victim restitution.
       On appeal, defendants contend (1) the trial court erred in declining to exclude
evidence of the victim’s identification of them; (2) there was insufficient evidence to
support the sex crime convictions; (3) the trial court erred in instructing the jury on
alternative theories of liability for the sex crimes; (4) the prosecutor committed
misconduct during closing argument; (5) the trial court should have stayed certain
sentences pursuant to Penal Code section 654; and (6) the abstract of judgment does not
reflect the trial court’s oral pronouncement of judgment. In addition, Corral contends
(7) this court should strike one of Corral’s prior prison term enhancements.
       We conclude the trial court did not commit evidentiary or instructional errors,
substantial evidence supports the sex crime convictions, and defendants forfeited their
claim of prosecutorial misconduct. However, we will modify the judgment to stay a one-
year enhancement of Corral’s sentence based on a prior prison term, and we will direct
the trial court to correct clerical errors in the abstract of judgment. We will affirm the
judgment as modified.
                                     BACKGROUND
       Phillip Corral, then in his mid-twenties, recruited four younger men to accompany
him in a stolen Chevrolet Suburban to collect a debt from a man he identified as Gustavo.
The group included Corral’s brother Gabriel Langarica, plus Robert Ortega, Francisco
Barba, and a man they called “Smiley.” Barba said he knew Langarica from school, but
he had not previously met Corral. Barba remembered Corral as a light-skinned bald
Mexican. Barba met Ortega on the day of the crime. Ortega had known Langarica for
several months and had known Corral a shorter time.



                                              2
       Near midnight on the evening of October 13, 2006, Ortega stole an old Suburban
and turned it over to Corral. Barba and Ortega testified that Corral was the leader and
driver that night. Ortega testified that Corral promised to pay him to “rough up”
Gustavo.
       Gustavo later acknowledged a dispute with a man over a car and said the man had
threatened to kill him. Gustavo said he had recently repossessed the car after the other
man stopped making payments on it. He denied knowing the defendants. Gustavo
worked at a restaurant where he normally finished work between midnight and 1:00 a.m.;
that night, he did not leave work until about 1:00 a.m.
       Just before 1:00 a.m., Corral drove the men in the Suburban to the parking lot of
an apartment building; Corral said Gustavo lived there and would be getting home from
work. The plan was to knock on the apartment door, and if there was no answer, to break
in and “rough up” Gustavo, whom they expected would be hiding inside. Corral carried a
cane and Ortega carried a bat.
       After knocking on the apartment door, Corral kicked the door down. Gustavo’s
wife had been asleep in the apartment’s only bedroom. The couple’s two young children
were asleep in the same room. The men began hitting the wife and shouting at her about
her husband and “the money.” She described the men as Hispanic. They first spoke
English, but when she responded in Spanish, they switched to Spanish.1 The wife said a
Latino man with a light complexion beat her with a bat and threatened to kill her.
       The wife said the same man grabbed her and dragged her to a sports utility
vehicle, where he got into the driver’s seat and threw her into the backseat with some of
the other men, asking that she tell him how to find her husband’s workplace so he could
collect $3,000 from him. Barba and Ortega identified Corral as the man who repeatedly




1 At all relevant times, the wife’s testimony was translated from Spanish to English.


                                             3
hit the wife, dragged her to the car and drove away to find her husband. Ortega testified
that Langarica took the wife’s purse from the apartment, and that Corral took some keys.
       As the Suburban drove toward the restaurant where Gustavo worked, Corral
laughingly told the men in the backseat to search the wife for weapons; one of the men
removed her nightgown. The men beside her blindfolded her and began touching her
breasts.
       Gustavo left the restaurant before the group arrived there. Corral made a call on
his cell phone to report that Gustavo was not there, and then drove toward a remote
location, talking about killing or getting rid of the wife. Gustavo testified that when he
arrived at his apartment, he found the door broken and his daughter running to tell him
“mommy wasn’t home.” After calling 911, Gustavo repeatedly called his wife’s cell
phone and heard laughter.
       As the group drove away from Gustavo’s workplace, the wife said one of the men
beside her forced her into the cargo area behind the seat and raped her. Then the man
who had been sitting on the other side of her promptly replaced the first man and also
raped her. Ortega said Langarica and Smiley sexually assaulted the wife, one after the
other, while she cried and said no. Barba said Ortega forced the woman to give him oral
sex.
       The Suburban came to a stop on a dirt road beside a body of water. The driver got
out and pushed the naked victim to her knees a few feet from the back bumper, then
forced her to orally copulate him. After a car passed, he gave her his black T-shirt so
other passing cars would not see she was naked. The wife escaped on foot. After the
men drove away, she returned to the road to flag down a passing car and asked them to
call police.
       Police responded at 1:44 a.m. Before an ambulance transported the wife from the
scene, police showed her a California Identification Card they found at the location where
she said the Suburban had been parked. The card belonged to Robert Ortega. The wife

                                             4
promptly identified him as the man who had been seated in the front passenger seat
during her ordeal. Police also found grocery receipts that had been in the wife’s purse.
       Ortega was arrested that morning at his home. He had the wife’s cell phone, along
with a cane and bat. Police eventually learned that the other four men were Barba,
Smiley and two brothers identified only as Phil and Gabriel. A police investigator
showed the wife a photo array that included Barba’s photograph; the wife positively
identified him as one of the rapists.
       At the preliminary hearing for Barba and Ortega, the wife identified them as the
men who sat on either side of her in the Suburban and raped her. When trial commenced
in this case, they were serving prison sentences for their participation in the crimes
against the wife.
       In mid-2008, after interviewing Barba and Ortega again, a police investigator
included Corral’s photograph in a “six pack” array shown to the wife; the wife pointed to
his picture and, without hesitation, said “driver” in English. Later in 2008, the wife
viewed other six-pack photo arrays but she did not identify Langarica from his
photograph. Ortega, however, positively identified Langarica’s photograph, saying
Langarica sat behind the driver and beside the wife on the night of the crimes. At a 2009
preliminary hearing, the wife identified Langarica as the driver and Corral as the man
who sat in the front passenger seat. An officer involved in the arrest of Corral in
October 2008 said Corral looked different at his preliminary hearing in 2009: his hair
was longer, he no longer had a goatee and he was wearing glasses. Ortega also testified
that Corral’s appearance had changed over time.
       The jury convicted Langarica and Corral of kidnapping for ransom or extortion
(Pen. Code, § 209, subd. (a) -- count 1);2 rape by force or fear (§ 261, subd. (a)(2) --




2 Undesignated statutory references are to the Penal Code.


                                              5
counts 2 and 3); forcible oral copulation (§ 288a, subd. (c)(2) -- count 4); assault with
intent to commit a sex crime during the commission of a burglary (§ 220, subd. (b) --
count 5); first degree residential robbery (§ 211 -- count 6); first degree residential
burglary (§ 459 -- count 7); and criminal threats (§ 422 -- count 8). The trial court
sentenced Langarica to 25 years to life on each count for rape and oral copulation; life
with the possibility of parole on the count for kidnapping; and a determinate term of
12 years four months for the other counts. The trial court sentenced Corral to 50 years to
life on each count for rape and oral copulation; life with the possibility of parole on the
count for kidnapping; and a determinate term of 31 years eight months. The trial court
ordered them jointly and severally liable for restitution to the wife and her family.
       Additional facts are included in the discussion as they relate to specific issues on
appeal.
                                       DISCUSSION
                                               I
       Defendants contend the trial court erred in declining to exclude evidence of the
wife’s identification of them.
       Prior to trial, Corral and Langarica filed motions to exclude evidence of the wife’s
identification of them during what they described as an “unduly suggestive” procedure at
their preliminary hearing. They claim the subsequent admission of identification
evidence was so suggestive that their constitutional rights were violated.
       Initially, the wife described the man who awakened her on the night of the crimes
as fair-skinned and having a very short haircut. She said that man was also the driver.
She estimated his age to be around 30. At the preliminary hearing, she said the man at
counsel table (Langarica) was the fair-skinned driver. The prosecutor had not told her
how many defendants were charged. Although Corral was in the courtroom, the wife
said she did not recognize anyone else after she identified Langarica. The trial court
observed that Corral was sitting some distance behind Langarica, had his head down and

                                              6
was not directly facing the witness. The next day, the prosecutor asked the wife if she
recognized Corral, pointing him out and identifying him for the record as Philip. The
prosecutor offered to have Corral come closer. When they were separated by about
12 feet, the wife said she recognized Corral as the man who sat in the front passenger
seat.
        Langarica argues the wife identified him only because he sat at counsel table for
the preliminary hearing “in the position traditionally allotted to the defendant.” Corral
contends she identified him because the prosecutor used his first name, which the wife
possibly could have heard on the night of the crimes, and because the prosecutor directed
the wife’s attention to him, which Corral contends impermissibly implied he was
involved and insinuated that her identification of Langarica the prior day was wrong and
she should “keep trying.”
        Acknowledging the wife’s “checkered history of identification,” the trial court
denied the motions to exclude victim identification, ruling that the circumstances asserted
by defendants went to the weight and not the admissibility of the evidence. The trial
court cited People v. Contreras (1993) 17 Cal.App.4th 813 (Contreras), expressing an
intention to provide “a lot of latitude” during trial for questioning about possible
misidentification.
        In Contreras, a victim identified a defendant at a preliminary hearing after failing
to recognize the defendant in photographs. (Contreras, supra, 17 Cal.App.4th at p. 822.)
Although the trial court believed the witness lied about recognizing the defendant, it
admitted the evidence and allowed the circumstances to be fully explored at trial. (Id. at
pp. 823-824.) The Court of Appeal found no constitutional unfairness because the
identification issue was “largely one of credibility” and therefore a “question for the jury
at trial, not an issue to be resolved in pretrial motions.” (Ibid.)
        Here, the wife had not positively identified Langarica prior to the preliminary
hearing. When she did identify him, she said he was the driver, even though she had

                                               7
previously identified Corral as the driver. But Barba and Ortega independently identified
Corral as the driver and Langarica as a participant. At trial, the wife was questioned at
length about her identification of the perpetrators. The defense offered an expert witness
on the fallibility of eyewitness testimony. Defense counsel argued extensively about the
wife’s identification errors in closing argument, at one point calling her “completely
unreliable.”
       Citing United States v. Wade (1967) 388 U.S. 218, 237-238 [18 L.Ed.2d 1149,
1162-1164], Langarica claims his federal constitutional rights were violated by the trial
court’s failure to exclude any in-court identification as “impermissibly tainted” by
circumstances of the preliminary hearing identification.3 The United States Supreme
Court recently clarified the holding in Wade and other cases involving the suppression of
identification evidence, saying its intent was to prevent unfair police practices, not to
eliminate suggestive identifications. (Perry v. New Hampshire (2012) 565 U.S. ___, ___
[181 L.Ed.2d 694, 709-710] (Perry).) Screening for reliability before trial is required
only when it is necessary “to deter police from rigging identification procedures.” (Id. at
p. ___ [181 L.Ed.2d. at p. 703].)
       The Perry majority emphasized its recognition that “the jury, not the judge,
traditionally determines the reliability of evidence” and numerous other safeguards of the
adversary system protect against “dubious identification evidence.” (Perry, supra,
565 U.S. at p. ___ [181 L.Ed.2d at pp. 710-712] [mentioning vigorous cross-examination,
opening and closing arguments, jury instructions and protective rules of evidence,
including the admissibility of expert testimony about the hazards of eyewitness
identification].) The California Supreme Court acknowledged Perry’s holding in stating



3 Corral cites People v. Craig (1978) 86 Cal.App.3d 905, for the same proposition. In
that case, the court held that a “ ‘single person showup’ ” was impermissibly suggestive if
it was not justified by the circumstances of the case. (Id. at 914.)

                                              8
that the “federal Constitution’s due process clause is not implicated” when suggestive
identification procedures are “not arranged by law enforcement officers.” (People v.
Thomas (2012) 54 Cal.4th 908, 931.)
       In this case, by the time of the preliminary hearing, two accomplices already
identified the defendants. The wife corroborated the identification by pointing to Corral
in an unchallenged photo array procedure. The trial court allowed both defendants to
wear civilian clothing and Corral to wear glasses; it allowed both to choose their seats in
the courtroom and also to question the wife before any identification.
       Even if the procedures had been unduly suggestive, they did not implicate due
process because they were not arranged by law enforcement officers. (People v. Thomas,
supra, 54 Cal.4th at p. 931.) Moreover, the California Supreme Court has “never
extended the rules regarding extrajudicial identifications to subsequent identifications in
court.” (People v. Carpenter (1997) 15 Cal.4th 312, 368.)
       The trial court did not err when it concluded that determining the reliability of the
wife’s testimony was within the province of the jury. The trial court was not required to
weigh the evidence for reliability before trial, and it was not required to exclude it. Even
when reliability is reviewed before trial, witness identification is inadmissible only when
there is a “ ‘ “very substantial likelihood of irreparable misidentification.” ’ ” (People v.
Arias (1996) 13 Cal.4th 92, 168, quoting Manson v. Brathwaite (1977) 432 U.S. 98, 116
[53 L.Ed.2d 140, 155] and Simmons v. United States (1968) 390 U.S. 377, 384
[19 L.Ed.2d 1247, 1253].) Defendants have not established a substantial probability that
they were misidentified or a violation of due process.
                                              II
       Defendants next contend there was insufficient evidence to support the sex crime
convictions.
       Langarica claims the only evidence at trial of his participation in the sex crimes
was testimony by Ortega that Langarica demanded and received oral sex from the wife;

                                              9
he argues that statement is untrustworthy because Ortega was an accomplice. Langarica
asserts there was insufficient evidence to support his convictions for rape, oral copulation
and assault with intent to commit sex crimes during the commission of a burglary.
       Corral claims his rape convictions should be reversed because although he
directed the other men to search the wife for weapons prior to the rapes, that was not a
direction to rape her.
       We review a challenge to the sufficiency of evidence by determining from the
entire record whether a reasonable jury could have found that the prosecution sustained
its burden of proof. (People v. Mincey (1992) 2 Cal.4th 408, 432.) In doing so, we
consider the evidence in a light favorable to the judgment and we “presume the existence
of every fact the trier could reasonably deduce from the evidence in support of the
judgment.” (Ibid.) “The test is whether substantial evidence supports the decision, not
whether the evidence proves guilt beyond a reasonable doubt.” (Ibid.) As to witness
credibility, we must defer to the trier of fact. (People v. Barnes (1986) 42 Cal.3d 284,
303-304.) If the findings are reasonably justified by substantial evidence, “reversal is not
warranted merely because the circumstances might also be reasonably reconciled with a
contrary finding.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) In fact, to set aside a
jury verdict, “it must clearly appear that upon no hypothesis whatever is there sufficient
substantial evidence to support it.” (Ibid.)
       Liability for a crime falls on those who directly commit the act constituting the
offense as well as on those who aid or abet in its commission; all are liable under the law
as principals. (§ 31.) One who aids or abets a crime is not only guilty of the crime he
knew his confederates contemplated but also of any other reasonably foreseeable offenses
they commit. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) In other words, a defendant
is liable for all the natural and reasonable consequences of acts he knowingly aids or
encourages. (Ibid.)



                                               10
        When the group of men broke into the wife’s apartment, she was asleep in her bed
wearing a nightgown. The driver, identified at trial as Corral, grabbed the wife by the
hair or by her arm and forced her into the Suburban. When they failed to find her
husband and began driving toward the levee, Corral told the others he intended to “get rid
of her.”
        It was in the context of getting money from her husband that Corral ordered the
wife “searched” and in the context of going to a place to “get rid of” the wife that the
rapes and forced oral copulation occurred. The men in the backseat beat her, called her
names and threatened her with death while the sex demands escalated. Defendant
Langarica pushed her over the seat into the cargo area. Ortega remembered hearing
Langarica say “suck it” while the wife cried; Ortega also heard her saying no and crying
while another man pinned her on her back, raping her. The wife said two men
successively penetrated her vagina with their penises while she was in the cargo area of
the vehicle. One of them also penetrated her anus. The sexual assault continued until the
vehicle came to a stop. After the stop on a dark road, Corral got out and ordered the
naked victim to give him oral sex. When interviewed by police immediately after the
crimes, the wife had muddy feet, a swollen arm and many scratches and marks on her
body.
        All of the witnesses agreed that the driver (Corral) forced the wife to orally
copulate him at the levee. They did not agree on which of the other men sexually
assaulted her as they drove there. However, viewing the evidence in the light most
favorable to the verdict, a reasonable fact finder could conclude from the evidence that
although only Corral and two other men personally sexually assaulted the wife, all five
either actively participated in the sexual assaults or were “ ‘concerned’ ” with their
commission. (See People v. Nguyen (1993) 21 Cal.App.4th 518, 529 [however slight the
“ ‘concern’ ” may have been, liability attaches if a defendant with the requisite state of
mind directly or indirectly aids the actual perpetrator of a sex crime].)

                                              11
       Whether sex crimes were the natural and probable consequence of the other
charged crimes is a question of fact for the jury. (People v. Nguyen, supra,
21 Cal.App.4th at p. 531.) Even when sex crimes are committed “ ‘on the spur of the
moment,’ ” as defendants argue happened here, aider and abettor liability can attach
instantaneously, and rape is not uncommon in home invasion robberies, particularly
where the intruders bring sufficient numbers to overcome any potential resistance. (Id. at
pp. 532-533.) The test for liability is “whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.” (Id. at p. 535.) A reasonable
person would expect that five men forcing their way into an apartment at 1:00 a.m.
wielding bats and canes might encounter a woman who could be forced to submit to
whatever demands they might make of her, including sexual violence.
       If it was not obvious when the five men broke down the door of the wife’s
apartment that sex crimes were foreseeable, it certainly became foreseeable as they
dragged her out of her bed in her nightgown and as they later drove her to a remote
location. As the likelihood of sexual assault escalates from possible or likely to certain,
and as a group of assailants continues to aid and assist the endeavor, “it will not do” for
them to later assert “they were concerned only with robbery and bear no responsibility for
the sexual assault.” (People v. Nguyen, supra, 21 Cal.App.4th at p. 534.)
       Aider and abettor liability attaches where (1) the aider and abettor knows the
unlawful purpose of the direct perpetrator, (2) the aider and abettor intends to commit,
encourage or facilitate the commission of the offense, and (3) the aider and abettor’s acts
or advice aids, promotes, encourages or instigates the commission of the offense.
(People v. Beeman (1984) 35 Cal.3d 547, 561.) An aider and abettor’s guilt is based on a
combination of the direct perpetrator’s acts and the aider and abettor’s own acts and
mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)



                                             12
       Because an aider and abettor’s culpability depends on his own mental state, in
some circumstances, he may be guilty of a greater or lesser crime than the direct
perpetrator. (People v. McCoy, supra, 25 Cal.4th at p. 1120; People v. Lopez (2011)
198 Cal.App.4th 1106, 1118.) There was no evidence here, however, of any distinction
among the five assailants. Although the language “ ‘equally guilty’ ” is no longer in
pattern jury instructions, the concept remains a generally correct statement of law.
(People v. Lopez, supra, 198 Cal.App.4th at p. 1119; People v. Samaniego (2009)
172 Cal.App.4th 1148, 1165.) Even if Corral’s order to search the wife was not a direct
order to rape her, it is reasonably foreseeable that a group of young men forcibly “patting
down” the body of a frightened woman in a nightgown would proceed to disrobe and
sexually violate her. It is also reasonably foreseeable that a group of five men who
collectively kidnap a woman from her bed might soon use the same intimidating force to
sexually assault her.
       The law did not require the jury to conclude that the defendants individually,
intentionally and directly participated in each of the sex crimes for which they were
charged and convicted. There was substantial evidence that both were willing
participants in an escalating criminal episode in which the wife was sexually assaulted by
three of the five assailants, and that all five actively participated in the intimidation that
facilitated the robbery, kidnapping and sexual assaults. The evidence was sufficient to
support the verdicts because sexual assault was a natural and probable consequence of the
kidnapping, which was a natural and probable consequence of the late-night home
invasion and robbery.
                                               III
       Defendants further contend the trial court erred in instructing the jury on
alternative theories of liability for the sex crimes. They claim there was insufficient
evidence to support instructing with CALCRIM Nos. 417 and 402, and they seek a new
trial on the sex crimes.

                                               13
        The trial court instructed the jury with CALCRIM No. 417 [liability for
coconspirators’ acts]. “Under California law, a person who aids and abets the
commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual
perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) Liability is based on an
act by the perpetrator to which the accomplice contributed. (Ibid.) Defendants claim an
uncharged conspiracy cannot be the basis for aider and abettor liability because the
theory is not consistent with definitions of “principal” in Penal Code section 31. The
California Supreme Court rejected this argument, however, holding that conspirators are
included in the definition of principal. (People v. Mohamed (2011) 201 Cal.App.4th 515,
523 [citing In re Hardy (2007) 41 Cal.4th 977, 1025].) Accordingly, the trial court did
not err in giving CALCRIM No. 417.
        The trial court also instructed the jury with CALCRIM No. 402 [natural and
probable consequences doctrine]. The trial court provided the following instruction:
        “Under the natural and probable consequences doctrine, a person who is guilty of
one crime may also be guilty of other crimes that were committed at the same time.
        “The defendant is charged with Counts 1 through 8 on the List of Counts provided
to you with your jury instruction packet.
        “Under the natural and probable consequences doctrine, you must first decide
whether the defendant is guilty of Count 1, Kidnapping for Ransom/Extortion. If you
find the defendant guilty of this crime, you must then determine whether he is guilty of
Counts 2 through 6, and 8, or any lesser crime thereto.
        “To prove that the defendant is guilty of any of the crimes charged in Counts 2
through 6 and 8, or any lesser crime thereto, under this doctrine, the People must prove
that:




                                             14
       “1. The defendant is guilty of Count 1, Kidnapping for Ransom/Extortion;
       “2. During the commission of Count 1, a coparticipant in Count 1 committed one
or more of the crimes charged in Counts 2 through 6 and 8, or any lesser crime thereto;
and
       “3. Under all of the circumstances, a reasonable person in the defendant’s position
would have known that the commission of one or more of the crimes in Counts 2 through
6 and 8, or any lesser crime thereto, was a natural and probable consequence of the
commission of Count 1.
       “A coparticipant in a crime is the perpetrator or anyone who aided and abetted the
perpetrator. It does not include the victim or innocent bystander.
       “A natural and probable consequence is one that a reasonable person would know
is likely to happen if nothing unusual intervenes. In deciding whether a consequence is
natural and probable, consider all of the circumstances established by the evidence. If the
crimes charged in Counts 2 through 6 and 8, or any lesser crime thereto, were committed
for a reason independent of the common plan to commit Count 1, then the commission of
Counts 2 through 6 and 8, and any lesser crime thereto, was not a natural and probable
consequence of Count 1.
       “To decide whether the crimes charged in Counts 1 through 8, or any lesser crime
thereto, were committed, please refer to the separate instructions for these crimes in your
jury instruction packet.”
       Defendant Langarica contends that the instruction incorrectly told the jury the
target offense was kidnap for ransom, whereas Barba and Ortega testified that the group
had agreed at the outset only to commit robbery and burglary. As further evidence that
the group agreed only to robbery, Langarica points to Barba’s police testimony that,
when Corral started hitting the wife, Langarica asked Corral, “What the heck are you
doing?”



                                            15
       Although we do not discredit the evidence that the group initially intended to rob
and “rough up” Gustavo, that plan was foiled when the group discovered Gustavo was
not at home and his wife did not hand over the money Corral said he expected to collect.
When Corral dragged Gustavo’s wife out of her apartment in a nightgown demanding
that she lead him to her husband, a new plan emerged. Even if Langarica wondered
aloud why his brother was hitting the wife, as Barba testified, there was no evidence of
any objection to forcing her from her bed, throwing her into the vehicle and driving to
where they expected to find her husband. The unmistakable objective at that point was
kidnapping for ransom. As we have explained, it is not unusual for a new criminal
objective (and related aider and abettor liability) to occur spontaneously. (People v.
Nguyen, supra, 21 Cal.App.4th at p. 532.) Moreover, culpability is imposed on aiders
and abettors “simply because a reasonable person could have foreseen the commission of
the nontarget crime.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 852.) There was
substantial evidence to support instructing the jury that kidnapping for ransom was the
target crime by the time the wife was seated in the backseat of the Suburban.
                                             IV
       In addition, defendants contend the prosecutor committed misconduct during
closing argument. They argue the prosecutor committed misconduct when she suggested
in closing that a guilty verdict could be based on what defendants call “group guilt.”
Defendants assert that only three men sexually assaulted the wife and none of them can
be liable for the crimes of the others.
       As we have explained, defendants’ argument is contrary to the law of aider and
abettor liability. Moreover, defendants forfeited any claim of prosecutorial misconduct
by failing to object at trial and failing to request a jury admonition. (People v. Samayoa
(1997) 15 Cal.4th 795, 841; People v. Kipp (2001) 26 Cal.4th 1100, 1130 [failure to
object on constitutional grounds at trial forfeits appellate contention that prosecutorial
misconduct violated constitutional protections].) Defendants acknowledge the lack of

                                             16
objection but claim the prosecutor’s arguments were so pervasive, “defense counsel may
have felt objection would be futile.” They further suggest the arguments were so
egregious that admonishment would not have cured the harm under the authority of
People v. Dykes (2009) 46 Cal.4th 731 (Dykes).
       Dykes held that a closing argument reaches the incurable level only when a
prosecutor uses “ ‘ “deceptive or reprehensible methods” ’ ” and “ ‘it is reasonably
probable that without such misconduct, an outcome more favorable to the defendant
would have resulted.’ ” (Dykes, supra, 46 Cal.4th at p. 760, quoting People v. Riggs
(2008) 44 Cal.4th 248, 298.) In this case, the prosecutor described the jury instructions
on aider and abettor liability and the evidence supporting each alternative theory.
Defendants point to nothing inherently deceptive or reprehensible in the argument; they
simply disagree with the prosecutor’s interpretation of the law. Defendants claim
prejudice in “incorrect statements of the law,” but even if the prosecutor’s
characterization of legal standards was wrong, proper instructions render such errors
harmless. (People v. Montiel (1993) 5 Cal.4th 877, 937 (Montiel).) The jury was
instructed that statements of counsel were not evidence and that the jury was to follow
the court’s instructions if attorney comments conflicted with the instructions. We
presume that the jurors understood and followed the instructions. (People v. Hinton
(2006) 37 Cal.4th 839, 871.)
       The claim of prosecutor misconduct was forfeited, but even if it had been timely
raised, allegedly erroneous descriptions of law would have been rendered harmless under
Montiel, supra, 5 Cal.4th at page 937. Accordingly, the failure of defense counsel to
object to the prosecutor’s closing argument did not deprive defendants of the effective
assistance of counsel.
                                             V
       Defendants also claim the trial court should have stayed certain sentences pursuant
to section 654. They argue the sentence for burglary should be stayed in light of the

                                            17
sentence for robbery, the sentence for criminal threats should be stayed as incident to the
robbery and kidnapping, and the sentence for assault with intent to commit sex crimes
should be stayed in light of the sentences for rape and forcible oral copulation.
       “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. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.” (§ 654, subd. (a).)
       Whether a sentence should be stayed under section 654 is a question of fact for the
trial court, which is vested with broad discretion, so we must affirm if there is substantial
evidence to support the trial court’s order. (People v. Jones (2002) 103 Cal.App.4th
1139, 1143.) On appeal, we review the record in the light most favorable to the
respondent, presuming the existence of every fact the trial court could reasonably deduce
from the evidence. (Ibid.) When a trial court sentences a defendant to separate terms
without expressly finding separate objectives, the factual finding of separateness is
implied. (People v. Islas (2012) 210 Cal.App.4th 116, 129.)
       Ordinarily, a defendant who commits burglary as an incident and means of
perpetrating another felony may not be punished separately for the burglary. (People v.
Centers (1999) 73 Cal.App.4th 84, 98 [citing cases].) There are exceptions, however.
For example, violent crimes with multiple victims can be separately punished because
when a crime of violence is committed with the intent to harm more than one person or in
a way likely to harm several persons, greater culpability precludes application of section
654. (Id. at p. 99 [upholding sentences for both burglary and kidnapping when second
occupant of dwelling was traumatized but not kidnapped].) Multiple punishments are
also upheld when a defendant has multiple objectives, such as to steal and to inflict
physical harm. (People v. Nelson (1989) 211 Cal.App.3d 634, 638-339 [affirming
separate punishment for burglary and assaults].)

                                             18
       Defendants claim the burglary sentences of one year four months for Langarica
and two years eight months for Corral should have been stayed because the burglary
(breaking and entering the wife’s apartment) was incidental to the planned robbery of
Gustavo. The testimony at trial suggested that Corral’s initial plan was to confront
Gustavo about money at his door, then “rough [him] up.” But the breaking and entering
was anticipated if there was no response to knocking.
       It was apparent soon after the group entered the apartment that Gustavo was not at
home, and that the group was not confronting a man recently returned from work, as
anticipated, but two young children and a woman, who had been asleep in their beds.
The group could have walked out of the apartment. Instead, they developed new criminal
objectives. When an alternate objective is developed unexpectedly in the middle of a
planned crime, section 654 does not preclude multiple punishments. (People v. Trotter
(1992) 7 Cal.App.4th 363, 368; People v. Vidaurri (1980) 103 Cal.App.3d 450, 465-466.)
       The group did not forcibly rob Gustavo of $3,000; they beat his wife with a bat in
the presence of her children, took her personal property and dragged her out into the
night. On these facts, the trial court did not err in finding that the defendants’ initial
objective for the burglary and “rough[ing] up” of Gustavo was distinct from the later
objective for taking the wife’s purse, phone and keys by force and fear.
       Defendants also contend the criminal threats they made to the wife (repeatedly
telling her they would kill her) were part of the robbery and kidnapping crimes and
should not have been separately punished. The early threats do appear to have been made
to keep the wife compliant so they could rob and kidnap her, but during the subsequent
drive to the levee, the threats were renewed in the context of sexually assaulting and
“get[ting] rid” of her. The trial court found that the criminal threats made during the
drive to the levee were separate from the other criminal acts. Based on that factual
finding, which is supported by the cited evidence, separate sentences were warranted.
(See People v. Nubla (1999) 74 Cal.App.4th 719, 730-731 [approving separate

                                              19
punishment for placing a gun against victim’s head and putting the gun in her mouth
although the acts occurred in rapid succession, because neither facilitated nor was
incidental to the other]; People v. Vidaurri, supra, 103 Cal.App.3d at p. 466 [separate
punishment for burglary and assault because assaults were committed later in response to
unforeseen circumstances]; People v. Jackson (1967) 255 Cal.App.2d 584, 587-588
[separate punishment for series of three crimes where new criminal intents were formed
as events unfolded].)
       Defendants next contend the assault with intent to commit sex crimes may not be
separately punished from the sex crimes that followed. The trial court addressed
indeterminate sentences for kidnapping, rape and forcible oral copulation before
imposing determinate sentences for the other crimes, identifying robbery as the primary
count for determinate sentencing. The trial court distinguished the assault from the
robbery when imposing consecutive determinate sentences, noting that the crimes were
separated by time and distance. The trial court did not mention the rape and forcible oral
copulation sentences when imposing the sentence for the assault with intent to commit
sex crimes. Again, however, the finding of separate objectives is implied and will be
upheld if supported by substantial evidence. (People v. Islas, supra, 210 Cal.App.4th at
p. 129.)
       Langarica was sentenced to 25 years to life on each count for rape and forced oral
copulation; Corral was sentenced to 50 years to life for each of those crimes. Langarica’s
sentence for assault with intent to commit sex crimes was one year four months, one-
third the four-year midterm; Corral’s sentence for assault with intent to commit sex
crimes was twice that length of time due to his prior offenses.
       Multiple sex crimes, even identical ones, can be separately punished where a
defendant renews assaultive behavior after even a brief interruption. (People v. Harrison
(1989) 48 Cal.3d 321, 337-338.) In this case, the wife testified that the men removed her
nightgown and repeatedly touched her breasts before they arrived at her husband’s

                                            20
workplace. While they were in the parking lot in front of the workplace, they removed a
T-shirt they had placed over her head and talked about what to do next. She heard the
driver say they could not go back to the apartment because the door was broken. The
rapes occurred after they left the parking lot.
       Corral contends that removing the wife’s nightgown was merely incidental to rape
and therefore did not warrant separate punishment, citing People v. Greer (1947)
30 Cal.2d 589, 604 [removal of underclothing incidental to rape]. But the Greer
approach of assuming that fondling is incidental to other sex crimes has been abandoned.
(People v. Scott (1994) 9 Cal.4th 331, 347, fn. 9.) Moreover, pulling the wife out of her
bed, removing her nightgown, putting a T-shirt over her head and fondling her breasts
were all assaultive acts and all occurred before the break in the parking lot to formulate a
new plan. None of the acts directly facilitated the subsequent rapes and none was
incidental to rape or oral copulation. Section 654 is intended to ensure that a defendant is
punished commensurate with his culpability, so it does not preclude punishment for
distinct and separate sex acts during the same criminal venture. (People v. Perez (1979)
23 Cal.3d 545, 553.) Accordingly, separate sentencing was supported by substantial
evidence and did not violate section 654. (See ibid.)
                                              VI
       Defendants contend the abstract of judgment does not track the trial court’s oral
pronouncement of sentence. The Attorney General agrees, and so do we.
       Judgment in a criminal case is defined by the oral pronouncement of sentence and
new terms cannot be added later to modify it. (People v. Mesa (1975) 14 Cal.3d 466,
471, superseded on other grounds as stated in People v. Turner (1998) 67 Cal.App.4th
1258, 1267-1268.) An appellate court, however, may correct clerical errors in the
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
       The trial court ordered a $10,000 fine pursuant to section 1202.4 and victim
restitution of $5,893.10 pursuant to section 1202.4, subdivision (f). The prosecutor

                                              21
supplied the restitution amount and identified it as having been paid to the wife and her
family by the Victim Compensation and Government Claims Board. Pronouncing
sentence, the trial court stated that the defendants were to be jointly and severally liable
for the restitution. The abstract of judgment, however, erroneously directed the
restitution to be paid directly to the victims and did not mention the joint and several
nature of the obligation. The Attorney General agrees that the trial court ordered
restitution paid to the victim restitution fund, not directly to the wife and her family, and
that the order of restitution was joint and several as to both defendants. We agree that the
abstract must be corrected in this regard.
       Defendants further contend an order for a $1,000 mandatory fee to San Joaquin
County must be stricken from the abstract because it was not included in the oral
pronouncement of sentence. Although the oral pronouncement did not include the fee,
the Attorney General asserts that the administrative fee was mandated under sections
1202.4, subdivision (c) and 2085.5, subdivision (c), along with California Code of
Regulations, title 15, section 3097, subdivision (c). Thus, the trial court’s failure to
impose it resulted in an unauthorized sentence that may be corrected on appeal. We
agree with the Attorney General.
       “Effective January 1, 2007 and thereafter, when an inmate owes any obligation
pursuant to a direct order of restitution imposed by a court, the department [of
Corrections and Rehabilitation] shall deduct 50 percent or the balance owing, . . . from
the inmate’s wages and trust account deposits . . . . In addition, an administrative fee of
10 percent of the deduction shall be deducted to reimburse the department for its
administrative costs, for a maximum deduction of 55 percent.” (Cal. Code Regs., tit. 15,
§ 3097, subd. (c).)
       The trial court apparently realized its error in omitting the mandatory fee and
corrected it in the abstract of judgment. If the trial court had not made the correction, we
would have ordered it. (See People v. Smith (2001) 24 Cal.4th 849, 852-853 [appellate

                                              22
courts may correct sentence to add an omitted but mandatory element].) No correction is
necessary regarding the mandatory fee.
       Defendants contend for the first time in Corral’s reply brief that although the fee is
mandatory, it will be levied by the Department of Corrections and Rehabilitation without
reference to the abstract of judgment, so there is a risk of a surcharge on the surcharge.
The point is forfeited because it was raised without providing the Attorney General an
opportunity to respond. (See People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
                                             VII
       Corral contends this court should strike one of his prior prison term enhancements.
       The trial court imposed a five-year sentence enhancement on Corral for his prior
robbery conviction and 2 one-year sentence enhancements for his prior prison terms. He
contends that one of the prison terms was for the robbery conviction that supported the
five-year enhancement, so the trial court should not have imposed the second one-year
enhancement. The Attorney General agrees, and we do too.
       Enhancements under sections 667 and 667.5 are intended to punish recidivism, but
they may not be applied together for the same offense. (People v. Jones (1993) 5 Cal.4th
1142, 1152-1153.) We will modify the judgment to stay the one-year robbery-related
prison term enhancement pursuant to section 667.5, subdivision (b).
                                      DISPOSITION
       The judgment is modified to stay the one-year robbery-related prison term
enhancement pursuant to section 667.5, subdivision (b). The judgment is affirmed as
modified. The trial court is directed to amend the abstract of judgment to reflect the
judgment as modified, and to correct the abstract of judgment to indicate the following:
that restitution shall be paid to the state Victim Compensation and Government Claims
Board, and that defendants are jointly and severally liable for restitution. The trial court




                                             23
shall forward a certified copy of the amended and corrected abstract of judgment to the
Department of Corrections and Rehabilitation.



                                                              MAURO                  , J.


We concur:


              BLEASE                  , Acting P. J.


              HULL                   , J.




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