Filed 7/24/15 P. v. Ospino CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067423

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FSB1103256)

DELIO MARTIN OSPINO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

William Jefferson Powell IV, Judge. Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, Peter Quon, Jr. and Martin E. Doyle, Deputy Attorneys General, for Plaintiff

and Respondent.


         Delio Martin Ospino appeals from a judgment convicting him of false

imprisonment, sexual penetration with a foreign object, and other offenses arising from
his sexual assault on the victim. He raises two claims of instructional error: (1) the court

erred by instructing the jury that Spanish language recordings, not the corresponding

English language transcripts, were the evidence, and (2) the court erred by failing to give

a unanimity instruction for the sexual penetration count. He also asserts the court erred

by admitting uncharged sex offense evidence. As to sentencing, he contends the term for

the false imprisonment count should have been stayed under Penal Code section 654.1

We find no reversible error and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On April 9, 2011, the victim's pastor (Jorge Ruano) took the victim to defendant's

office to see if he could assist her with the paperwork needed for her divorce. In addition

to his document preparation business, defendant served as a pastor, and the victim had

heard him preach at her church on one occasion but did not otherwise know him. A few

days after their initial meeting, on April 16, defendant texted the victim asking if she

would come assist him at his office because his secretary would be gone. He also invited

her to dinner so they could discuss her divorce paperwork. The victim arrived at

defendant's office around noon, and defendant had her perform receptionist duties at the

front desk.

       When defendant and the victim left for dinner, they initially drove their separate

cars, but after a stop at a gas station, the victim parked in a parking lot and joined

defendant in his car so he could drive them to a beach town for dinner. When they



1      Subsequent unspecified statutory references are to the Penal Code.
                                              2
arrived at the beach town, they did not go to a restaurant but instead walked around the

area. Defendant then told the victim they were going to "look at the papers at his house."

The victim agreed to go with him because he told her that he had the papers needed for

her divorce at his house.

         Defendant drove them to his home at a trailer park. After changing his clothes,

defendant summoned the victim into his bedroom to join him. Defendant was on the bed

and he told the victim to "get naked." The victim said, "you are a pastor, you are a

church reverend and I'm your sister from the church, why are you asking me to do that?"

Defendant became very angry and yelled at her, saying "from now on you are no longer

my sister and I'm no longer your pastor. You are a woman and I'm a man." When he

yelled at her, she became afraid. He told her he wanted her to get undressed; at first she

told him she was embarrassed, but then she complied with his demand and undid her

dress.

         Defendant threw the victim face down on the bed, grabbed her hair, and started to

bite her neck and back, saying "yell, bitch, that's how I like it. That excites me, bitch."

The victim told him to stop and that he was hurting her. He ordered her to undo her bra

and, feeling afraid, she complied. Defendant pulled down her underwear and "started to

insert his fingers in [her] vagina several times" which hurt her "a lot." Still pulling on her

hair, he turned her "face up" and again started to put his fingers in her vagina. She was

telling him it was hurting her, but defendant continued saying, "yell, bitch, . . . because

that excites me. You are my bitch . . . when I go to the swap meet I'm going to buy you a

collar that says you are my bitch and I'm going to put it on you." The victim told him to

                                              3
leave her alone and stop because he was hurting her. Defendant continued putting his

fingers into her vagina, and he also was putting his fingers in her mouth and saying "tell

me bitch, tell me what are you going to do when I put my semen in your mouth." When

the victim did not respond, he started slapping her so she would answer, telling her she

had to say that she would swallow his semen. The victim refused to say this, but

eventually complied as defendant hit her several times.

       Defendant then put the victim face down and on her side, and he repeatedly put

"his fingers in [her] anus." He used his knee to push his hand into her anus so that "it

would be with more force," and he was pulling and grabbing her "chest" with his other

hand. She repeatedly told him to stop and he was hurting her, but he continued to say:

"that I should yell, yes, bitch, yell, yell louder. That makes me excited. [¶] . . . [¶] . . . I

was his bitch, that I was a whore." The victim was in pain and her anus was bleeding.

The victim testified, "I was very afraid because I thought he was going to kill me or do

something else because he was hurting me a lot and he would not listen to me."

       Defendant grabbed the victim's head so that her "head was like in suspension,

facing up." He put his fingers in her mouth and told her that next time he would

"penetrate [her] in [her] mouth" and "make [her] swallow his semen," but he would not

do that this time because he was going to preach at a church the next day. The victim

was afraid, explaining that when he put his fingers in her mouth, she was choking and she

was trying to get up but he would not let her. The victim started pushing defendant back

so he would let her go, and defendant got up and went to the kitchen. The victim testified

the sexual assault in defendant's bedroom lasted for about two hours; the more she "was

                                                4
telling him that he was hurting [her], the more he was getting excited"; and she had been

unable to leave because the whole time he was grabbing her hair.

       Once defendant went into the kitchen, the victim dressed quickly, and fearful that

defendant would not let her go, she grabbed her phone from the living room and

pretended she was speaking to her children, saying, "I'm on my way, I'm right here with

the pastor." The victim asked defendant if he could take her to her car; he initially said

he would not do so until the following day, but then agreed when she told him that her

children were waiting for her. When they arrived at the victim's car, defendant said he

had "never had a bitch" like her and she had "behaved quite well," and he threw a $20 bill

at her and told her to get gas so she could leave. He told her not to tell people at the

church or the police about what occurred because otherwise he would get her deported.

       Shortly after the assault, the victim contacted her pastor (Ruano) and told him

"what this pastor had done" to her. Ruano told her that defendant frequently did this with

the women who contacted him for paperwork processing; defendant would threaten to get

them deported; defendant was "very powerful" and "always gets his way"; and it would

be better for her "to make an arrangement" with defendant and she should ask him for

$5,000 and "stay silent." The victim did not initially go to the police because she was

afraid of defendant's threats, depressed, and suicidal. However, about 12 days after the

assault, she told her sister what had occurred, and her sister took her to the police where

she reported the incident.

       When the victim started receiving texts from defendant saying he wanted to

continue seeing her, she again contacted the police, and a detective asked her to make a

                                              5
pretext phone call to defendant. In the recorded phone conversation, defendant admitted

he had put his fingers in the victim's anus, but claimed the sexual encounter was

consensual and the force involved was consensual sadomasochism. During the pretext

call, the victim mentioned Pastor Ruano's suggestion that she ask defendant for $5,000 to

"keep [her] quiet" and asked defendant why Ruano said this to her. A few days later,

defendant went to the police and claimed the victim and Ruano were engaging in a

conspiracy to extort $5,000 from him. During a recorded interview with a detective,

defendant again admitted he penetrated the victim's anus with his fingers and claimed the

sexual conduct was instigated by the victim and consensual.

       The victim testified she did not tell defendant she wanted to have sex with him and

the sexual encounter was not consensual. As a result of the attack, her entire body was

hurting; her vagina and anus were bleeding; and she had bruising on her breasts and back

from the bites. At the time of trial she suffered from incontinence and had to use a pad

on her rectum.

Uncharged Sex Offense Evidence

       Defendant's ex-wife (D.O.) testified that she and defendant were married from

1991 to 2001, and he was physically and psychologically abusive and sexually violent

towards her. Defendant would hold her down and force her to have sexual intercourse

and sometimes penetrate her anally when she told him she did not want to do this. D.O.

testified the anal penetration was "very much" against her will, and when she told

defendant this, he would reply, "it was okay, that he just wanted to release himself." She



                                            6
did not report his conduct to the police because he threatened to take everything away

from her including their son.

Jury Verdict and Sentence

       Defendant was convicted of false imprisonment by violence or menace, sexual

penetration with a foreign object, assault by means of force likely to cause great bodily

injury, and attempt to dissuade a witness from reporting a crime. The court sentenced

him to nine years four months in prison.

                                         DISCUSSION

                                 I. Claims of Instructional Error

                           A. Instruction Regarding Recordings

       The two recordings submitted into evidence in this case (the pretext call and

defendant's police interview) were primarily in Spanish, and the jury was provided with

English language transcripts of the recordings. Because the recordings were in a foreign

language, defendant argues the trial court violated his constitutional due process and jury

trial rights by providing the jury with the standard instruction that the recordings, not the

transcripts, are the evidence.

       When the prosecutor played the recorded pretext call for the jury, the court told

the jury: "So, ladies and gentlemen, the evidence should it be admitted into evidence is

the audio recording itself, the CD. Transcripts are generally made and required in fact so

that the listener can understand what is on the tape. Most of the time when people speak

in an audio recording, it is not very clear, so we give them transcripts to help them

understand. [¶] This, if you don't speak Spanish, is going to be entirely unclear because

                                                7
the phone call's entirely in Spanish. So the transcript is agreed by both counsel to be

sufficiently accurate so that you can understand the CD should you not speak Spanish."

(Italics added.)

       Similarly, when the prosecutor played the recorded police interview for the jury,

the court told the jury: "You remember what I told you with the previous pretext phone

call transcript. The evidence is actually the audio and visual portion of the CD or DVD,

whichever it is. The transcript is really to help you understand the evidence, but the

transcript is not the evidence." (Italics added.)

       Counsel made no objection to these instructions.2

       Generally, it is proper for a court to instruct the jury that a recording is the

evidence and a transcript of the recording is a guide to assist with understanding the

recording. (See United States v. Franco (9th Cir. 1998) 136 F.3d 622, 626.) However,

the courts have recognized that when the recording is in a foreign language, the English

language transcript attains a different evidentiary status. As explained in Franco: "[T]he

relation between tapes and transcripts changes when the tapes are in a foreign language.

When tapes are in English, they normally constitute the actual evidence and transcripts

are used only as aids to understanding the tapes; the jury is instructed that if the tape and

transcript vary, the tape is controlling. [Citation.] When the tape is in a foreign

language, however, such an instruction is 'not only nonsensical, it has the potential for



2      After the jury's verdict, defendant filed a new trial motion based on the court's
instructions concerning the recordings. The trial court assessed that its instructions were
erroneous, but denied the new trial motion based on a finding of no prejudice.
                                               8
harm where the jury includes bilingual jurors.' [Citation.] We therefore have upheld a

trial court's instruction that a jury is not free to disagree with a translated transcript of

tape recordings." (Id. at p. 626.)

       In the case before us, it appears that one or more jurors understood Spanish,

whereas others did not. The jurors who could not understand Spanish could have listened

to or viewed the recordings to get a sense of demeanor, but they necessarily had to rely

on the transcripts for the content of the spoken words. Defendant contends the non-

Spanish speaking jurors might not have considered the recordings at all (including his

exculpatory claims of consent and extortion contained therein) because they were told the

transcripts were not evidence and they were unable to understand the recordings. To the

contrary, no reasonable juror would have ignored the recordings as an evidentiary item

based on the court's instructions. It is not reasonable to assume non-Spanish speaking

jurors would have thought they were effectively precluded from considering foreign

language recordings that were of significant evidentiary value and for which they had

been provided translated transcripts. The court's instructions on this matter could have

been clearer, but we are satisfied the jurors fully understood they could rely on the

transcripts when considering the recordings as evidentiary items. Although the court told

the jurors the recordings, not the transcripts, were the evidence, when addressing the

pretext call the court also acknowledged that for non-Spanish speaking jurors the

recording would be "entirely unclear" and counsel had agreed the transcript was

sufficiently accurate "so that you can understand the CD should you not speak Spanish."

(Italics added.) Similarly, when addressing the police interview, the court told the jurors

                                                9
the transcript was designed "to help you understand the evidence." (Italics added.) Thus,

the court effectively told the jurors that the transcript represented the recording for non-

Spanish speakers.

       Defendant also contends that because the court told the jurors that the recordings,

not the transcripts, were the evidence, the jurors might not all have been evaluating the

same evidence with respect to the recordings. He posits that Spanish-speaking jurors

would have considered only the recordings, not the transcripts, when evaluating the

evidence, and because they were not told the English language transcripts were

controlling, they may have understood the recordings differently and/or may have

provided different translations to non-Spanish speaking jurors. We agree it would have

been appropriate for the court to have told the jurors that they could not rely on their own

translations of the recordings. (United States v. Franco, supra, 136 F.3d at p. 626;

People v. Cabrera (1991) 230 Cal.App.3d 300, 303-304 [juror committed misconduct by

exposing fellow jurors to evidence outside the record by providing her own translation of

Spanish-language testimony].) CALCRIM No. 121 sets forth such an instruction when

the jury is presented with witness testimony or recordings in a foreign language. (See fn.

3, post.) However, assuming the court was required to provide this instruction sua

sponte, there was no prejudicial error.

       Preliminarily, we reject defendant's contention that the claimed error was

structural error requiring automatic reversal. (See People v. Gamache (2010) 48 Cal.4th

347, 396-397 [jury exposure to matters not in evidence is not structural error]; People v.

Carter (2010) 182 Cal.App.4th 522, 530-533 [deficient instructions on jury's duties not

                                             10
structural error].) Even if we apply the harmless beyond a reasonable doubt standard for

federal constitutional error, the record shows no prejudice. (See People v. Chavez (1991)

231 Cal.App.3d 1471, 1482-1483 [applying harmless beyond reasonable doubt standard

for error related to possible juror misconduct]; People v. Leonard (2007) 40 Cal.4th 1370,

1425 [no reversal for jury exposure to extraneous information if record as whole shows

no substantial likelihood of actual harm]; People v. Cabrera, supra, 230 Cal.App.3d at

pp. 304-305.)

       There is nothing in the record to suggest there are different translations of the

recordings that might have materially altered a juror's evaluation of these evidentiary

items. Further, the jurors were instructed in the language of CALCRIM No. 121 that they

could not rely on their own translation of the Spanish testimony; i.e., they "must rely on

the translation provided by the interpreter" and they could "not retranslate any testimony

for other jurors."3 Reasonable jurors would have understood they likewise could not



3       Using the language of CALCRIM No. 121, the jurors were instructed:
        "Some testimony may be given in Spanish. An interpreter will provide a
translation for you at the time that the testimony is given. You must rely on the
translation provided by the interpreter, even if you understand the language spoken by the
witness. Do not retranslate any testimony for other jurors. If you believe the court
interpreter translated testimony incorrectly, let me know immediately by writing a note
and giving it to the [bailiff]."
        The jurors were not provided the second portion of CALCRIM 121 addressing
foreign language recordings, which states: "You (may/are about to) hear a recording
[that is partially] in a foreign language. You will receive a transcript with an English
language translation of that recording. You must rely on the transcript, even if you
understand the language in the recording. Do not share your own translation with other
jurors. Please write a note to the clerk or bailiff if you believe the translation is wrong.
[If the recording is partially in English, the English parts of the recording are the
evidence.]"
                                             11
retranslate the recordings but they should all rely on the English transcripts provided to

them in conjunction with the recordings.

       The claimed error in the court's instructions concerning the recordings was

harmless beyond a reasonable doubt and caused no impairment of defendant's due

process and jury trial rights.4

           B. Failure To Provide Unanimity Instruction for Penetration Count

       Defendant argues the sexual penetration conviction (count 2) must be reversed

because the trial court failed to provide a unanimity instruction for this count. He

contends the penetration charge could be supported by either the evidence of the vaginal

penetration or of the anal penetration; the prosecutor did not elect one of these acts as the

basis for count 2; and accordingly the court prejudicially erred by failing to tell the jurors

they must unanimously agree which act established the penetration count.

       A defendant's constitutional right to a unanimous jury verdict requires that when

the evidence shows more than one unlawful act that could support a single charged

offense, the prosecution must either elect which act to rely upon or the trial court must

sua sponte give a unanimity instruction telling the jurors they must unanimously agree

which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

The unanimity instruction is designed to eliminate the danger the defendant will be

convicted even though there is no single offense which all the jurors agreed the defendant

committed. (People v. Norman (2007) 157 Cal.App.4th 460, 464-465.)


4     Given our holding on the merits, we need not address the People's forfeiture
contention.
                                              12
       Assuming a unanimity instruction should have been given, the error was harmless

beyond a reasonable doubt. (People v. Norman, supra, 157 Cal.App.4th at p. 466.)

Under this standard, the "failure to give a unanimity instruction may be harmless error if

we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed

on the act(s) constituting the offense." (Ibid.)

       The record shows beyond a reasonable doubt that all the jurors agreed defendant

committed anal penetration of the victim. In the recorded police interview and pretext

call, defendant repeatedly and explicitly stated or acknowledged he engaged in anal

penetration, but claimed it was consensual. For example, during the police interview

defendant said, "then all of a sudden she turned around and said for me to put my fingers

in her asshole. . . . [¶] . . . [¶] I stuck my middle finger in her anus, when I inserted my

finger about half way in her anus I felt that she tighten up too much, I do not know if she

did that purposely or because she was nervous"; "I felt that she tightened her anus, my

fingers felt tight . . . . [¶] . . . [¶] I could not take my fingers out"; "I knew that there was

something wrong when I put my fingers in her anus . . . . I also said that she tightened up

and I couldn't take my fingers out"; "The only thing that she can accuse me [of], is

putting my fingers in her anal, and I'm not denying that."

       Similarly, during the pretext call, the following exchanges occurred: "VICTIM:

So putting fingers in the anus is not a violation? [¶] SUSPECT: Well, if I did that with

force"; "VICTIM: . . . I had to go to the doctor for a problem, because the other day I

woke up with my anus very injured, yes. [¶] SUSPECT: . . . It's possible that that

happened . . . ."; "VICTIM: . . . You were inserting you[r] fingers in my anus. . . . [¶]

                                               13
SUSPECT: It wasn't something against your will because we were on fire. [¶] VICTIM:

No. . . . I was telling you that you were hurting me, and you; nevertheless, kept inserting

your fingers, and I was telling you that it hurt, and you were pulling my hair on my

head. . . . [¶] . . . [¶] SUSPECT: I ask you for forgiveness. . . . But . . . we were an act

with much force, and I was convinced it was real—"; "VICTIM: So, just . . . admit the

truth . . . that you inserted your fingers in my anus, that you hurt me. I even had to go to

the doctor at the hospital, and still I'm suffering with those problems. [¶] SUSPECT:

But . . . that was an act between two persons when there is sadomasochism, it's like that."

       The jurors' guilty verdict reflects they rejected defendant's consent defense, and

once they did this, there was no basis for them to have rejected a finding of anal

penetration given defendant's clear, detailed, and explicit admissions of this act.

Regardless of the jury's determination concerning the vaginal penetration claim, we have

no doubt all the jurors agreed defendant committed anal penetration. There was no

prejudice arising from the absence of a unanimity instruction.

                        II. Admission of Uncharged Sex Offense Evidence

       Defendant argues the trial court erred by admitting into evidence the uncharged

sex offense evidence presented through the testimony of his ex-wife. He asserts the

evidence should have been excluded because it was factually dissimilar from the charged

sex offense, was unduly prejudicial, and may have caused the jury to convict him of the

charged sex offense based on a desire to punish him for his past misconduct towards his

ex-wife.



                                              14
       The prosecution made a pretrial motion to admit the uncharged sex offense

evidence to show defendant's proclivity to commit sex offenses as permitted by Evidence

Code section 1108, arguing the evidence had significant probative value and was not

unduly prejudicial. The court weighed the evidence under Evidence Code section 352

and, over defense objection, ruled it was admissible. The jurors were provided a standard

instruction stating that if the prosecution proved by a preponderance of the evidence that

defendant committed the uncharged offenses of spousal rape and sexual assault, they

could consider the evidence for purposes of the count 2 sexual penetration charge; they

could, but were not required to, conclude defendant was inclined to commit sex offenses

and was likely to and did commit the count 2 offense; and the uncharged sex offense

evidence was only one factor to consider along with all the other evidence and was

insufficient by itself to prove guilt beyond a reasonable doubt of the charged sex

offense.5 (See CALCRIM No. 1191.)

                                    A. Governing Law

       Evidence Code section 1108 sets forth an exception to the general rule against the

use of evidence of a defendant's misconduct apart from the charged offense to show a

propensity to commit crimes. (People v. Robertson (2012) 208 Cal.App.4th 965, 989-

990.) When a defendant is charged with a sex offense, Evidence Code section 1108



5      In his opening brief on appeal, defendant mistakenly assumed the uncharged sex
offense evidence was presented to the jury under both Evidence Code sections 1108 and
1101, subdivision (b), and he challenged its admissibility under both of these sections. In
his reply brief, he appears to recognize the evidence was presented to the jury under only
Evidence Code section 1108.
                                            15
allows admission of evidence of other sex offenses to prove the defendant's disposition to

commit sex offenses, subject to the trial court's discretion to exclude the evidence under

Evidence Code section 352. (Evid. Code, § 1108, subd. (a); Robertson, at p. 990.)

Evidence Code section 1108 is premised on the recognition that sex offense propensity

evidence is critical in sex offense cases " 'given the serious and secretive nature of sex

crimes and the often resulting credibility contest at trial.' " (People v. Falsetta (1999) 21

Cal.4th 903, 918 (Falsetta).)

       Based on Evidence Code section 1108, the presumption is in favor of the

admissibility of other sex offense evidence; however, the evidence should not be

admitted in cases where its admission could result in a fundamentally unfair trial.

(People v. Loy (2011) 52 Cal.4th 46, 62; People v. Falsetta, supra, 21 Cal.4th at p. 917.)

To safeguard a defendant's fair trial rights, the trial court is required to engage in a careful

weighing process under Evidence Code section 352 to determine whether the probative

value is substantially outweighed by the danger of undue prejudice, confusion, or time

consumption. (Falsetta, at pp. 916-917.) When making this evaluation, similarity

between the prior and current sex offenses is a relevant factor to consider (People v.

Lewis (2009) 46 Cal.4th 1255, 1285); however, there is no strict similarity requirement

for admission of the evidence (see People v. Loy, supra, 52 Cal.4th at p. 63; People v.

Robertson, supra, 208 Cal.App.4th at p. 991). Undue prejudice does not exist merely

because highly probative evidence is damaging to the defense case, but rather arises from

evidence that uniquely tends to evoke an emotional bias against the defendant or cause



                                              16
prejudgment of the issues based on extraneous factors. (People v. Doolin (2009) 45

Cal.4th 390, 438-439.)

       The decision whether to apply Evidence Code section 352 to exclude otherwise

admissible evidence " 'is entrusted to the sound discretion of the trial judge who is in the

best position to evaluate the evidence.' " (People v. Falsetta, supra, 21 Cal.4th at pp.

917-918.) On appeal we will not disturb the trial court's ruling unless the court exercised

its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a

miscarriage of justice. (People v. Lewis, supra, 46 Cal.4th at p. 1286.)

                                        B. Analysis

       As set forth above, the uncharged sex offense evidence was admissible under

Evidence Code section 1108 as propensity evidence, subject to the court's discretion to

exclude it under Evidence Code section 352. The trial court reasonably declined to

exclude the evidence under Evidence Code section 352. In both the charged and

uncharged offenses, defendant engaged in forcible sexual conduct against women,

including conduct that involved anal penetration. The current victim and defendant's ex-

wife were initially voluntarily in defendant's presence; defendant then inflicted violent

sexual behavior on them; and he threatened repercussions if they went to the police. The

conduct against the current victim was highly violent and demeaning, and the conduct

against defendant's ex-wife was not so qualitatively different as to raise a concern of an

undue emotional impact on the jury. Further, the court could reasonably conclude that

the fact defendant was not punished for the prior misconduct was not alone enough to tip

the scale towards undue prejudice given that the prior sex offense evidence had

                                             17
significant probative value and it was not disproportionately inflammatory when

compared to the current charged offense.

       The court did not abuse its discretion in admitting the uncharged sex offense

evidence.

            III. Claim that Sentence for False Imprisonment Should Have Been Stayed

       Defendant's sentence (totaling nine years four months) consisted of an eight-year

upper term for the sexual penetration count and two consecutive eight-month sentences

for the false imprisonment and witness dissuasion counts (one-third the two-year

midterm).6 Defendant argues that when committing the false imprisonment and sexual

penetration offenses he had a single objective; i.e., to commit the sexual assault.

Accordingly, he argues the sentence on the false imprisonment count should have been

stayed under section 654.

       Section 654 prohibits multiple punishment under different statutory provisions for

a single physical act or for two or more physical acts that are part of one indivisible

transaction. (People v. Jones (2012) 54 Cal.4th 350, 358; People v. Mesa (2012) 54

Cal.4th 191, 199.) The purpose of section 654 is to ensure a defendant's punishment is

commensurate with his or her culpability. (People v. Capistrano (2014) 59 Cal.4th 830,

886.) The divisibility of a transaction involving multiple acts depends on whether the

defendant had an independent objective for each offense. (Id. at pp. 885-886; People v.

Harrison (1989) 48 Cal.3d 321, 335.)



6      A two-year sentence on the assault count was stayed under section 654.
                                             18
       If a defendant had multiple criminal objectives that were independent of and not

merely incidental to each other, he or she may be punished for each statutory violation

committed in pursuit of each objective even though the violations shared common acts or

were parts of an otherwise indivisible course of conduct. (People v. Harrison, supra, 48

Cal.3d at p. 335.) The courts recognize that " 'at some point the means to achieve an

objective may become so extreme they can no longer be termed "incidental" and must be

considered to express a different and more sinister goal than mere successful commission

of the original crime.' " (People v. Cleveland (2001) 87 Cal.App.4th 263, 272.) For

example, a defendant's conduct of falsely imprisoning and raping the victim can

reasonably be found to reflect multiple objectives under circumstances where the

defendant tied up the victim "to the point where she almost strangled to death." (People

v. Manning (1982) 133 Cal.App.3d 159, 169.) In contrast, a defendant's conduct of

kidnapping and raping the victim can reflect only a single objective under circumstances

where the kidnapping was confined to driving the victim to secluded areas. (People v.

Latimer (1993) 5 Cal.4th 1203, 1206, 1216; see People v. Martinez (1980) 109

Cal.App.3d 851, 858.)

       On appeal, we apply the substantial evidence standard to review the court's

express or implied finding that the defendant had separate objectives while engaging in

the multiple acts. (People v. McKinizie (2014) 54 Cal.4th 1302, 1368-1369.) We view

the evidence in the light most favorable to the court's determination, and presume in

support of the court's conclusion the existence of every fact that could reasonably be

deduced from the evidence. (People v. Cleveland, supra, 87 Cal.App.4th at p. 271.)

                                            19
       The record supports the court's finding of multiple objectives during the false

imprisonment and sexual penetration committed by defendant. The court could

reasonably find defendant did not forcibly confine the victim to his bedroom in a manner

that merely prevented her from leaving so he could assault her sexually. Rather, the court

could assess that the false imprisonment included conduct that terrorized the victim far

beyond the forcible restriction of her movement for purpose of committing the sexual

assault. The defendant inflicted fear in the victim and physically and psychologically

restrained and intimidated her by yelling at her, throwing her face down on the bed,

grabbing her by the hair, biting and slapping her, calling her derogatory names, and

jamming his knee against his fingers as he anally penetrated her. The encounter in the

bedroom lasted for two hours; the victim was unable to leave because "the whole time he

was grabbing [her] hair"; and the victim thought defendant was going to kill her. The

court could further find that, even after finishing the sexual assault, defendant continued

the false imprisonment by grabbing the victim's head "like in suspension," inserting his

fingers in her mouth to the point of choking her, and threatening what he was going to do

"next time."

       These facts support that defendant falsely imprisoned the victim to terrorize her as

well as to commit the sexual assault. Based on the distinct objective of terrorizing the

victim, defendant could properly be punished both for the false imprisonment and the

sexual penetration.




                                             20
                                  DISPOSITION

      The judgment is affirmed.




                                                HALLER, J.

WE CONCUR:



NARES, Acting P. J.



AARON, J.




                                      21
