Filed 1/24/14 P. v. Cortez CA2/4
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B245332

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA375790)
         v.

RUDY A. CORTEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B.
Rappe, Judge. Affirmed as modified.
         Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
       Following a jury trial, defendant Rudy A. Cortez was convicted of 23 counts of
forcible rape, forcible oral copulation, and forcible sodomy, and five counts of
kidnapping to commit another crime.1 As to each forcible sex crime, the jury found true
the special allegations that subjected defendant to the “One Strike” law.2 (§ 667.61.)
Defendant received a sentence of 600 years to life under that law.3
       In this appeal from the judgment, defendant raises issues of insufficient evidence,
instructional error, failure to instruct on lesser included offenses, improper admission of
evidence, and cruel and unusual punishment. Although we reject those contentions, we
modify the judgment to correct the sentencing errors raised by the Attorney General.




1
       Although the information was numbered counts 1 through 42, only 28 counts were
presented to the jury. As to the remaining 14 counts, five counts contained no allegations
(10, 14, 26, 36 & 37), and nine counts were dismissed upon the prosecution’s motion (11,
30, 31, 32, 33, 34, 35, 40 & 42).
       The jury returned guilty verdicts on all 28 counts, consisting of 10 counts of
forcible oral copulation (Pen. Code, § 288a, subd. (c)(2) (counts 1, 3, 5, 8, 12, 16, 19, 22,
28, 38)), 11 counts of forcible rape (§ 261, subd. (a)(2) (counts 2, 6, 7, 9, 13, 17, 20, 23,
25, 29, 39)), two counts of forcible sodomy (§ 286, subd. (c)(2) (counts 18, 24)), and five
counts of kidnapping to commit another crime (§ 209, subd. (b)(1) (counts 4, 15, 21, 27,
41)).
       Unless otherwise indicated, all further statutory references are to the Penal Code.
2
       The jury found true the special allegations of personal use of a knife (§§ 12022.3,
subd. (a), 667.61, subd. (e)(3)), sex crimes committed against multiple victims (§ 667.61,
subd. (e)(4)), kidnapping during the commission of a crime (§ 661.61, subd. (e)(1)), and
kidnapping during the commission of a crime where the movement substantially
increased the risk of harm (§ 667.61, subds. (a), (d)).
3
       The trial court imposed 24 consecutive sentences of 25 years to life on counts 1-3,
5-9, 12-13, 16-20, 22-25, 28-29, 38-39, and 41, and stayed the four-year enhancement
under section 12022.3, subdivision (a) as to those counts. The court also imposed four
terms of life with possibility of parole on counts 4, 15, 21, and 27, which were stayed
pursuant to section 654.


                                              2
                                     BACKGROUND


       The prosecution alleged that between November 18, 2008, and September 8, 2010,
defendant sexually assaulted the following women at knifepoint: (1) Dominique S. on
November 18, 2008 (counts 12, 13); (2) Leticia K. on June 20, 2010 (counts 15-16, 19,
17-18, 20); (3) A.J. on July 30, 2010 (counts 27-29); (4) Jayme M. on August 1, 2010
(counts 21-24); (5) D.S. on August 19, 2010 (counts 8-9); (6) L.H. (referred to in the
clerk’s transcript as Alyssa H.) in September 2010 (counts 38-39, 41); (7) Erica W.
(referred to in the clerk’s transcript as Erika W.) on September 1, 2010 (counts 4-6); and
(8) Nancy M. on September 8, 2010 (counts 1-3).
       The police arrested defendant while the eighth victim, Nancy, was still in his car.
Shortly after midnight on September 8, 2010, Los Angeles Police Department Officer
Samuel Huizar and his partner were patrolling an area known for high prostitution and
narcotics activity when they noticed a gray Mustang that was double-parked with its
engine running and windows fogged. While Huizar was speaking with the driver
(defendant), the front passenger (Nancy) began screaming for help. Both were ordered
out of the car.
       When Nancy exited the vehicle, she was crying and holding a bra in her hands.
Defendant was sweating profusely and his belt was undone, his shirt was untucked, and
his pants were unzipped. Nancy gave a statement that led to the recovery of a knife,
handcuffs, and condoms from a compartment in the driver’s side door. Defendant was
arrested and his car was impounded. Nancy was taken to the hospital for a sexual assault
examination.
       A further search of defendant’s car led to the recovery of personal items belonging
to the other seven victims: (1) Dominique’s driver’s license; (2) Leticia’s cell phone,
identification card, and Social Security card; (3) A.’s friend’s driver’s license;
(4) Jayme’s identification card; (5) D.’s identification card, Social Security card, and
driver’s permit; (6) L.’s identification card, Social Security card, knife, and hoop
earrings; and (7) Erica’s identification card and cell phone.


                                              3
       After defendant was given a Miranda4 warning, he was asked about the “different
female identifications” found in his car. Initially, he said the identifications belonged to
“[g]irls that I have chilled with” and “[g]irls that I’ve kicked it with.” Later in the
interview, he admitted that the “same thing happened” with each of the women. He
stated: “I picked them up, too.” “I just picked them up. Same thing happened.” “All the
girls are the same. All the girls are the exact same.” During the last “seven or eight
years,” there were “[e]ight to 10” “girls” and “I picked them up.” Eventually, defendant
admitted that he had sex with all of the women while he held a knife to their throats. He
stated, “I picked them up and drove to a — to a location where ever it was and — and
they all performed sexual acts on me while I had a knife on their throat.” When asked
whether the women had wanted him to use a knife, he admitted, “No, they didn’t.” He
explained that he used the knife because he “didn’t want to pay for it.” He said that he
told one of the women that he was a sheriff, he handcuffed “the last two” women (Erica
and Nancy), and he blindfolded all of them with their bras “[e]very time they got out of
the car.”
       At trial, seven of the eight victims testified that defendant had sexually assaulted
them at knifepoint. They uniformly testified that defendant had forced them to engage in
sexual acts by holding a knife to their throats and threatening to injure or kill them if they
failed to comply. Only one victim, Erica, did not testify at trial. Over defendant’s
objection, the trial court admitted Erica’s preliminary hearing testimony after finding that
she was unavailable as a witness. Other facts relevant to the issues on appeal will be
discussed later in this opinion.




4
       Miranda v. Arizona (1966) 384 U.S. 436.


                                               4
                                        DISCUSSION


I.     Insufficient Evidence
       Defendant’s claim of insufficient evidence is based on the testimony of five
victims (Nancy, D., Dominique, Jayme, and L.) that they were working as prostitutes
when they initially got into defendant’s car to perform sexual acts for a fee. Although
defendant concedes that all of the women objected to his use of a knife, he claims that as
to the five who were working as prostitutes, their objections to his use of the knife were
insufficient to negate their prior consent to the sexual acts. Accordingly, he contends, the
evidence failed to show that “the sexual acts were non-consensual.” We conclude the
contention lacks merit.


       A.      Standard of Review
       “In Jackson v. Virginia (1979) 443 U.S. 307, 318-319, the United States Supreme
Court held, with regard to the standard on review of the sufficiency of the evidence
supporting a criminal conviction, that ‘[t]he critical inquiry . . . [is] . . . whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . .
[T]his inquiry does not require a court to “ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ An identical standard applies under the California
Constitution. (People v. Johnson (1980) 26 Cal.3d 557, 576.) ‘In determining whether a
reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the
appellate court “must view the evidence in a light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier [of fact] could
reasonably deduce from the evidence.”’ (Ibid.)” (People v. Staten (2000) 24 Cal.4th
434, 460.)



                                                5
        “Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) 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.
(People v. Bolin (1998) 18 Cal.4th 297, 331.)


       B.     Forcible Rape, Oral Copulation, and Sodomy
       Forcible rape is defined as an act of sexual intercourse that “is accomplished
against a person’s will by means of force, violence, duress, menace, or fear of immediate
and unlawful bodily injury on the person or another. (§ 261, subd. (a)(2).)
       Forcible oral copulation is defined as an act of oral copulation that is
“accomplished against the victim’s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury.” (§ 288a, subd. (c)(2)(A).)
       Forcible sodomy is defined as “an act of sodomy when the act is accomplished
against the victim’s will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.” (§ 286,
subd. (c)(2)(A).)
       Lack of consent is an element of the crimes of forcible rape, forcible oral
copulation, and forcible sodomy. “In prosecutions under Section 261, 262, 286, 288a, or
289, in which consent is at issue, ‘consent’ shall be defined to mean positive cooperation
in act or attitude pursuant to an exercise of free will. The person must act freely and
voluntarily and have knowledge of the nature of the act or transaction involved. [¶] A
current or previous dating or marital relationship shall not be sufficient to constitute
consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or
289.” (§ 261.6.)
       “Actual consent must be distinguished from submission. [A] victim’s decision to
submit to an attacker’s sexual demands out of fear of bodily injury is not consent


                                               6
[citations] because the decision is not freely and voluntarily made (§ 261.6). A selection
by the victim of the lesser of two evils—rape versus the violence threatened by the
attacker if the victim resists—is hardly an exercise of free will. [Citation.]” (People v.
Giardino (2000) 82 Cal.App.4th 454, 460, fn. 3.) However, “[i]t is a defense that the
accused reasonably and in good faith believed the woman engaged in the act
consensually. [Citation.]” (People v. Ireland (2010) 188 Cal.App.4th 328, 336
(Ireland).)


       C.     The Testimony of the Five Victims Regarding the Use of the Knife
       At trial, the five women provided similar testimony that they were forced at
knifepoint to comply with defendant’s demands in order to avoid being injured or killed.
       Nancy’s Testimony. After Nancy got into defendant’s car and agreed to perform
sexual acts for a fee, defendant suddenly put a knife to her throat and “told [her] that
[she] was going to do whatever he told [her] to do or else he would cut [her] face.”
Nancy was scared and believed that defendant, who “seemed really angry,” would carry
out his threats if she failed to do what he wanted. When the police arrived, she was
crying and calling for help.
       D.’s Testimony. After D. got into defendant’s car and agreed to perform sexual
acts for a fee, defendant put a knife to her neck, said he was a police officer, removed her
clothing, handcuffed her wrists behind her back, and told her to do everything he said or
he would kill her. D. felt “helpless” and “scared.”
       Dominique’s Testimony. After Dominique got into defendant’s car and agreed to
perform sexual acts for a fee, defendant put a knife to her neck and said something that
made her “really scared for [her] life. [She] didn’t know if [she] was going to live to see
another day.” “[She] said that [she had] a son and [she] want[ed] to live to see [her] son.”
“[She] just wanted to do whatever [she] had to do to live to see [her] son.”
       Jayme’s Testimony. After Jayme got into defendant’s car and agreed to perform
sexual acts for a fee, they had consensual sex and defendant gave her $100. However,
defendant suddenly pulled out a knife and held it to her neck and said, “you know what’s


                                              7
going on, don’t act stupid.” He warned her to be quiet because he did not care if she was
hurt or killed. He promised that if she made “him come again,” he would let her go.
After forcing her to hand over her identification, cell phone, and the $100 he had given
her, he told her to “suck his dick” while he drove the car. When she refused and started
to cry, he “hit [her] in the back of the head with the knife,” which made her realize that
she had better “do everything” that he told her to do. After defendant stopped the car, he
raped and sodomized her, which made her cry in pain. However, she tried to be quiet
because she “didn’t want him to hurt [her] with the knife.” He then drove her to another
location where he handcuffed her wrists behind her back and raped her while they stood
next to the car.
       L.’s Testimony. After L. got into defendant’s car and agreed to perform sexual
acts for a fee, he put a knife to her throat and told her not to scream. He handcuffed her
wrists behind her back and said that he was an undercover sheriff. He also claimed that
he was a pimp and that she had better stop working on his girl’s corner. He took her
identification card and asked a lot of questions. He turned the car light on and showed
her some blood on his knife and said, “So don’t try anything stupid.”


       D.     Substantial Evidence Supports the Verdict
       Defendant argues that because his use of the knife was a collateral matter—which
he compares to playing loud or objectionable music during sex—the victims’ objections
to the “knife did not communicate a withdrawal of consent to the charged sexual acts.”
According to defendant, “[i]f the woman’s objection to the music is strong enough to
make her withdraw consent to performing a sexual act, the law requires that she must
communicate an objection to the sexual act, rather than merely object to the music. If she
only objects to the music, she cannot claim that the sexual act she performed was without
consent.” The contention is meritless.
       The evidence fails to support defendant’s claim that the knife was a collateral
matter. On the contrary, the evidence shows that the knife was integral to the
commission of forcible rape, forcible oral copulation, and forcible sodomy.


                                             8
       This case is factually similar to Ireland, in which the victims had also agreed to
perform sexual acts for a fee. As in this case, the defendant in Ireland suddenly produced
a knife and the victims were frightened into submission by actual or implied threats of
violence. The defendant in Ireland “communicated the express or implied threat that, if
they did not continue to cooperate even after he produced the knife and held it to their
throats, he would do them harm. As to the victim V.B., the testimony was that appellant
told her ‘just to cooperate’ and she ‘won’t get hurt.’ When the victim J.W. asked
appellant what he was doing with the knife, he told her to ‘“shut up.”’ She did, because
she was afraid he would otherwise ‘slice [her] neck off.’ He told her not to scream or
make any sudden movements and he would not use the knife. When the victim A.H.
reacted to appellant putting the knife to her throat by saying ‘no,’ appellant responded by
instructing her to put a condom on his penis, remove her pants, and get on her knees. She
complied because she thought he would otherwise kill her. To the victim C.S., appellant
said ‘do what I say and you won’t get hurt.’ She cooperated out of fear.” (Ireland,
supra, 188 Cal.App.4th at p. 337.)
       As the appellate court explained in Ireland, where a woman’s cooperation is
induced by force or fear, she is not required to communicate her lack of consent, even
though she initially had agreed, before being threatened with a knife, to perform sexual
acts for a fee: “The essence of consent is that it is given out of free will. That is why it
can be withdrawn. While there exists a defense to rape based on the defendant’s actual
and reasonable belief that the victim does consent (People v. Dominguez (2006) 39
Cal.4th 1141, 1148; People v. Mayberry [(1975)] 15 Cal.3d [143,] 153-158), we do not
require that victims communicate their lack of consent. (See People v. Maury[, supra,]
30 Cal.4th 342, 403 [lack of consent need not be proven by direct testimony but may be
inferred from use of force or duress].) We certainly do not require that victims resist.
(People v. Griffin (2004) 33 Cal.4th 1015, 1024-1025.) Yet this is what appellant
proposes here. At the time of the offenses, appellant told his victims to cooperate or be
hurt. Now he contends they were required to express to him their lack of cooperation.
That cannot be the law. When appellant used the knife and expressly or impliedly


                                              9
threatened his victims, and in the absence of any conduct by the victims indicating that
they continued to consent, the previously given consent no longer existed, either in fact or
in law. (Cf. People v. Washington (1962) 203 Cal.App.2d 609, 610 [‘[c]onsent induced
by fear is no consent at all’].)” (Ireland, supra, 188 Cal.App.4th at p. 338, fn. omitted.)
       Similarly, in this case each victim’s cooperation was induced by express or
implied threats of bodily harm through the use of a knife and, in some cases, handcuffs
and even a blow to the head. Nancy was threatened at knifepoint that she would suffer a
cut on her face if she did not do what she was told. D. was handcuffed and warned at
knifepoint that she would be killed unless she complied. Dominique was threatened at
knifepoint in a way that made her fear for her life. Jayme was handcuffed, hit on the
back of the head with a knife, and threatened with death. L. was shown a bloody knife
and told “don’t try anything stupid.” We conclude that because “consent induced by fear
is no consent at all” (People v. Washington, supra, 203 Cal.App.2d at p. 610), the sexual
acts that the women were forced to commit at knifepoint were not consensual and,
therefore, the verdicts are supported by substantial evidence.


II.    Defendant’s Contention of Instructional Error Is Unsupported by the Record
       Defendant contends that the trial court committed instructional error. He argues
that “[t]he instructions on withdrawal of consent, to wit, CALCRIM Nos. 1000, 1015 and
1030, were erroneously limited to withdrawal of consent occurring ‘during the act,’
which was misleading because it implied that the same rules do not apply where consent
is withdrawn before the sexual act. Because withdrawal of consent was the key issue in
the case, the instructional error cannot be deemed harmless.” (Internal record references
omitted.)
       As we understand the contention, defendant is objecting to the portion of
CALCRIM No. 1000 that applies when, during apparently consensual intercourse, the
victim expresses an objection and attempts to stop the act, but the defendant forcibly




                                             10
continues despite the objection.5 However, as the Attorney General correctly points out,
the trial court omitted that portion of the instruction and replaced it with a modification
based on Ireland, supra, 188 Cal.App.4th at pages 337-338.6 The inserted modification
addressed the prosecution’s evidence that, notwithstanding the victims’ prior consent to
perform sexual acts for a fee, they were suddenly threatened with a knife and told that
they would be injured or killed if they did not do what they were told. The modified
instruction correctly reflected the evidence that defendant employed the knife and threats
of physical violence before committing the sexual acts alleged in counts 1-3, 5-9, 12-13,
16-20, 22-25, 28-29, and 38-39. Accordingly, the modified instruction did not
erroneously suggest, as defendant contends, that consent was withdrawn during the




5
        That portion of CALCRIM No. 1000 states: “A woman who initially consents to
an act of intercourse may change her mind during the act. If she does so, under the law,
the act of intercourse is then committed without her consent if: [¶] 1. She communicated
to the defendant that she objected to the act of intercourse and attempted to stop the act;
[¶] 2. She communicated her objection through words or acts that a reasonable person
would have understood as showing her lack of consent; [¶] AND [¶] 3. The defendant
forcibly continued the act of intercourse despite her objection.”
6
        The modified portion of the instruction stated: “To consent, a woman must act
freely and voluntarily and know the nature of the act consented to. In deciding whether
the woman acted freely and voluntarily and knew the nature of the act consented to, you
may take into consideration all the surrounding circumstances at the time consent was
allegedly given and any change of circumstances thereafter, including but not limited to,
evidence concerning whether, at the time of the alleged consent, she did or did not know
if the defendant intended to accomplish the sexual intercourse by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the woman, and whether he
subsequently did so.”
        The trial court also modified the final paragraph of CALCRIM No. 1000 by
adding the following italicized language: “The defendant is not guilty of rape if
throughout the entire act of sexual intercourse he actually and reasonably continued to
believe that the woman consented to the intercourse. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually and reasonably
believe that the woman consented to the intercourse. If the People have not met this
burden, you must find the defendant not guilty.”


                                             11
sexual acts. Because the portion of the instruction that defendant challenges on appeal
was not given below, we reject his contention as unsupported by the record.


III.   The Court Was Not Required to Instruct on Simple Assault and Battery as
       Lesser Included Offenses of the Forcible Sex Crimes
       Defendant contends the trial court erroneously failed to instruct on simple assault
and battery7 as lesser included offenses of forcible rape, forcible oral copulation, and
forcible sodomy. He argues that even though the objections to the use of the knife were
insufficient to withdraw the victims’ consent to perform sexual acts, the victims are “still
protected by laws against assault and battery.” He reasons that “[b]ecause appellant
assaulted each victim with a knife, it was clear that he was guilty of something” and “it
was unfair to give the jury an all-or-nothing choice. Instructions on assault and battery
would have given the jury the opportunity to hold appellant responsible for his use of the
knife, which was the true nature of appellant’s crimes.” We are not persuaded.
       Once again, defendant bases his contention on the erroneous premise that the knife
was a “collateral” matter that had no effect on the victims’ prior consent. As we
previously discussed, the law is to the contrary. The law provides that “[w]hen appellant
used the knife and expressly or impliedly threatened his victims, and in the absence of
any conduct by the victims indicating that they continued to consent, the previously given
consent no longer existed, either in fact or in law. [Citation.]” (Ireland, supra, 188
Cal.App.4th at p. 338, fn. omitted.)
       “The court is required to instruct on lesser included offenses only when the
evidence raises a question whether all the elements of the charged crime have been
proved and where a jury could reasonably find that the defendant committed the lesser

7
       “An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) “A battery is any willful and unlawful
use of force or violence upon the person of another. (§242.) An “[a]ssault is a lesser
included offense of a charge of battery. [Citation.]” (People v. Paul (1978) 78
Cal.App.3d 32, 45.)


                                             12
but not the greater crime. (See People v. Wickersham (1982) 32 Cal.3d 307, 324-325
[disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201].)
However, instructions on lesser included offenses are not required when the evidence
shows that, if guilty at all, defendant committed the greater crime. (People v. Leach
(1985) 41 Cal.3d 92, 106.)” (People v. Lema (1987) 188 Cal.App.3d 1541, 1544-1545.)
We conclude the trial court had no sua sponte duty to instruct on simple assault and
battery as lesser included offenses of the forcible sex crimes.


IV.    Erica’s Preliminary Hearing Testimony Was Properly Admitted at Trial
       Defendant contends the trial court erred in admitting Erica’s preliminary hearing
testimony at trial. We disagree.


       A.     The Applicable Law
       Former testimony from a prior proceeding is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness. (Evid. Code, § 1291.) A witness is
unavailable if he or she is “[a]bsent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to procure his or her
attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(5).)
       “‘[D]ue diligence’ is ‘incapable of a mechanical definition,’ but it ‘connotes
persevering application, untiring efforts in good earnest, efforts of a substantial
character.’ [Citations.] Relevant considerations include ‘“whether the search was timely
begun”’ [citation], the importance of the witness’s testimony [citation], and whether leads
were competently explored [citation].” (People v. Cromer (2001) 24 Cal.4th 889, 904
(Cromer).)
       We review the trial court’s determination of the historical facts, including the
prosecution’s account of their failed efforts to locate the absent witness, under a
deferential standard of review. (Cromer, supra, 24 Cal.4th at p. 900.) We independently
review the trial court’s determination whether the prosecution’s efforts to locate an absent
witness are sufficient to justify an exception to the defendant’s constitutionally


                                             13
guaranteed right of confrontation at trial. (Id. at p. 901.) But an appellate court will not
reverse a trial court’s determination simply because the defendant can conceive in
hindsight of a proposed further step or avenue left unexplored. (People v. Diaz (2002) 95
Cal.App.4th 695, 706.) Nor can the court impose upon the prosecution the task of
keeping continuous tabs on a witness, for the administrative burden would be prohibitive.
(Ibid.)


          B.     Additional Facts
          About a week before trial, Deputy District Attorney Martha Carrillo attempted to
locate Erica by contacting Erica’s mother. Although this had always worked in the past,
Erica’s mother gave Erica’s new cell phone number to Carrillo and told her that she had
tried but could not locate Erica. Carrillo left several messages at that number and sent
several email messages to an email address that she believed was Erica’s. When those
efforts failed to produce a response from Erica, Carrillo requested the assistance of an
investigator.
          Investigator Yvette Hartwell left messages on Erica’s cell phone and spoke with
Erica’s mother, who told Hartwell that Erica had said, “[I]t’s my f’ing life. I don’t want
to relive this stuff.” Hartwell visited several of Erica’s previous addresses and checked
with the jails, hospitals, and the coroner’s office. Hartwell kept calling Erica’s cell phone
until the cell phone was disconnected the day before trial.
          Detective Teresa Curtis tried to locate Erica by checking a previous address,
examining arrest records, and contacting Erica’s probation officer, whose last contact
with Erica had occurred in October 2011. Curtis also sent several email messages to an
email address associated with Erica.
          After the above efforts to locate Erica failed, Carrillo sought to introduce Erica’s
preliminary hearing testimony at trial. Carrillo, Hartwell, and Curtis testified as to their
efforts to locate Erica. Carrillo stated that she had spoken with Erica about her trial
testimony on at least five occasions. Until Erica suddenly disappeared just before trial,
Carrillo had no reason to believe that Erica would “be a difficult witness” to secure for


                                                14
trial. Although Erica “was very emotional about not wanting to relive this” and asked if
she would have to testify again, Erica had assured Carrillo that she would stay in touch
with her mother, who was “battling cancer,” and could be reached through her. In
Carrillo’s opinion, because Erica was now actively refusing to come forward, extending
the search for another month would be futile because all reasonable leads had been
exhausted.
       Defense counsel objected that the prosecution did not exercise due diligence by
failing to look for Erica until two court days before trial. Defense counsel argued that in
light of Erica’s reluctance to testify at trial, the prosecution should have started the search
much earlier. Defense counsel pointed out that no efforts were made to look for Erica
during the “three-day weekend” before trial.


       C.       The Trial Court’s Finding That Erica Was Unavailable as a Witness Is
                Supported by Substantial Evidence
       The trial court concluded that under the circumstances, the prosecution’s efforts
were diligent and timely. The trial court found that the prosecution had exhausted all
available leads and exercised due diligence in trying to locate Erica, who was unavailable
as a witness.
       The trial court based its determination on the following evidence. “There were
contacts with the mother and she called back and so it was only late in the game that the
People learned that she was actively avoiding being a witness in the case.” Erica’s phone
was still in service when messages were left by Carrillo and Hartwell. Even though Erica
was a “reluctant” witness at the preliminary hearing, she did not display “active
avoidance” until “much later in the game.” Erica’s active avoidance was the “real
problem,” which did not become “crystal clear” until Erica’s phone was disconnected the
day before trial.
       We distinguish this case from Cromer, supra, 24 Cal.4th 889, where the police
learned that a witness had disappeared seven months before trial. The prosecution issued
subpoenas three months later, but did not serve them. The prosecution’s investigators


                                              15
visited the witness’s home a month before trial, but waited two days before going to her
mother’s residence where she reportedly was living. When the investigators were
informed that the mother was out but would return the next day, the investigators did not
return to talk to her. Based on this record, the Supreme Court concluded that “serious
efforts to locate [the witness] were unreasonably delayed, and investigation of promising
information was unreasonably curtailed.” (Id. at p. 904.) In comparison, the efforts
made to find Erica in this case were serious and diligent.
       We further conclude that any error in the admission of Erica’s prior testimony was
harmless under either the Watson or Chapman8 standards of prejudice. The evidence of
defendant’s guilt was overwhelming. Erica’s testimony was corroborated at trial by
Officer Alejandro Higareda, who had taken her crime report on the night of the rape, and
Cathy Adams, the nurse who had examined her at the hospital and found cuts, bruises,
and abrasions that were consistent with being handcuffed and held at knifepoint. In
addition, Erica’s testimony was corroborated by defendant’s admissions that he had
handcuffed the “last two” women, which included Erica, that “[a]ll the girls are the
same,” that he “picked them up,” he drove them to a location, “they all performed sexual
acts on [him] while [he] had a knife on their throat[s],” and they all were blindfolded with
their bras.


V.     Sentencing Issues
       Defendant was convicted of 23 counts of forcible rape, forcible oral copulation,
and forcible sodomy, plus five counts of kidnapping to commit another crime. As to each
forcible sex crime, the jury found true the special allegations that subjected defendant to
consecutive terms of 25 years to life under the One Strike law. (§ 667.61.)9

8
       People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S.
18.
9
       The One Strike law applies to crimes including forcible rape (§ 261, subd. (a)(2)),
forcible sodomy (§ 286, subd. (c)(2)), and forcible oral copulation (§ 288a, subd. (c)(2)).
                                                                           (Fn. continued.)

                                             16
       The One Strike law “was enacted to ensure that serious sexual offenders receive
long prison sentences regardless whether they have any prior criminal convictions.
(People v. Wutzke (2002) 28 Cal.4th 923, 926, 929.)” (People v. Luna (2012) 209
Cal.App.4th 460, 465.) The trial court does not have discretion “to strike any of the
circumstances specified in subdivision (d) or (e).” (§ 667.61, subd. (f).) “‘Having been
pled and proven, the circumstance of [the specified offense] which gives rise to the 25
years to life punishment under section 667.61, subdivision (d) “shall not” be stricken.
[Citations.]’” (People v. Jackson (1998) 66 Cal.App.4th 182, 193-194.)


       A.     The Court Mistakenly Imposed an Unauthorized Sentence on Count 41
       The Attorney General contends, and defendant agrees, that the trial court
mistakenly treated count 41, kidnapping to commit another crime, as a forcible sex crime
and erroneously sentenced defendant on count 41 to a consecutive term of 25 years to life
under the One Strike law. As a result of that error, the trial court imposed 24 rather than
23 consecutive sentences of 25 years to life under the One Strike law on counts 1-3, 5-9,
12-13, 16-20, 22-25, 28-29, 38-39, and, erroneously, 41, resulting in an erroneous
sentence of 600 years to life, rather than the correct sentence of 575 years to life. It is

       Section 667.61, subdivision (a) provides in relevant part: “[A]ny person who is
convicted of an offense specified in subdivision (c) under one or more of the
circumstances specified in subdivision (d) or under two or more of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the state prison for 25
years to life.”
       Section 667.6, subdivision (d) provides in relevant part: “A full, separate, and
consecutive term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve the same victim on
separate occasions. [¶] In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court shall consider whether,
between the commission of one sex crime and another, the defendant had a reasonable
opportunity to reflect upon his or her actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between crimes, nor whether or not the
defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself,
determinative on the issue of whether the crimes in question occurred on separate
occasions.”


                                              17
undisputed that if the trial court had been alerted to its error, it would have imposed the
same sentence on count 41 as it did on counts 4, 15, 21, and 27 (which were also
kidnapping counts) of life with possibility of parole, and would have stayed punishment
on count 41 (including all fines and assessments) under section 654.
       Because the sentence imposed on count 41 was erroneous, it is subject to
correction on appeal as an unauthorized sentence. (In re Renfrow (2008) 164
Cal.App.4th 1251, 1256.) We therefore remand with directions to correct the abstract to
reflect a corrected sentence of 23 consecutive terms of 25 years to life on counts 1-3, 5-9,
12-13, 16-20, 22-25, 28-29, and 38-39, and a life sentence on counts 4, 15, 21, 27, and
41. The sentences (including fines and penalty assessments) on counts 4, 15, 21, 27, and
41 are stayed under section 654.


       B.     The Sentence Does Not Constitute Cruel or Unusual Punishment Under the
              California Constitution
       Defendant contends that his sentence under the One Strike law constitutes cruel or
unusual punishment under the California Constitution. We disagree.
       “A punishment is cruel or unusual within the meaning of the California
Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity.’ (In re Lynch (1972)
8 Cal.3d 410, 424.) In Lynch, the Supreme Court extracted from prior decisions a four-
pronged analysis for claims of disproportionate sentencing. (Id. at pp. 425-427.) The
first two prongs of the analysis focus on the nature of the offense and the offender ‘with
particular regard to the degree of danger both present to society.’ (Id. at p. 425.) In
contemplating the nature of the offense we consider not only the crime as defined by the
Legislature but also ‘“the facts of the crime in question” . . . including such factors as its
motive, the way it was committed, the extent of the defendant’s involvement, and the
consequences of his acts.’ (People v. Dillon [(1983)] 34 Cal.3d [441,] 479.) In
considering the nature of the offender we look at such factors as the defendant’s ‘age,
prior criminality, personal characteristics, and state of mind.’ (Id. at p. 479.) The third


                                              18
and fourth prongs involve comparing the challenged punishment with punishments in
California and other jurisdictions for offenses which are as serious or more serious.
(People v. Dillon, supra, 34 Cal.3d at p. 487 & fn. 38; In re Lynch, supra, 8 Cal.3d at
pp. 426-427.)” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1278.)


              1.     The Nature of the Offense and the Offender
       Under any objectively reasonable standard, defendant is a violent serial rapist who
preyed on vulnerable women who, because they were engaged in the illegal occupation of
prostitution, were often reluctant to report the crimes he committed against them. The
fact that defendant does not have a serious criminal history is undoubtedly a reflection of
the extreme vulnerability of his victims.
       In terms of the degree of danger that defendant presents to society, we have no
difficulty finding him to be a highly dangerous individual who is likely to reoffend if he
is not incarcerated for the rest of his life. The crimes in this case are even more serious
than in People v. Sullivan (2007) 151 Cal.App.4th 524, which involved a sentence of 210
years to life for six counts of robbery, with two prior serious felony convictions and two
prior prison terms. In rejecting the defendant’s claim of cruel and unusual punishment,
the court in Sullivan described the crimes in that case, which involved “a series of
robberies which included threatened acts of violence with a deadly weapon,” as “acts of a
most heinous nature.” (Id. at p. 570.) The defendant in Sullivan was described as “an
incorrigible recidivist offender who presents a most grave and extreme level of danger to
society.” (Ibid.) We conclude that in comparison to Sullivan, the crimes in this case—a
long string of forcible rapes, forcible oral copulations, and forcible sodomy against
women who were confined in an automobile and threatened at knifepoint with death or
bodily injury while blindfolded and in some cases handcuffed—are far more heinous.


              2.     Other Punishments in This State
       Defendant contends that his punishment is disproportionate to the punishments
imposed for first or second degree murder. He argues that because he must serve 600


                                             19
years (now 575 years) prior to being eligible for parole, his sentence is identical to the
sentence he would have received for committing 24 (now 23) first degree murders.
       We believe that the punishment in this case is not disproportionate to the lengthy
indeterminate sentences that have been upheld in other One Strike and Three Strike cases.
(See e.g., People v. Alvarado (2001) 87 Cal.App.4th 178 [One Strike sentence of 15 years
to life for rape during commission of burglary was not cruel or unusual punishment];
People v. Estrada, supra, 57 Cal.App.4th 1270 [One Strike sentence of 25 years to life
for forcible rape in course of burglary was not cruel or unusual punishment]; Lockyer v.
Andrade (2003) 538 U.S. 63 [two consecutive terms of 25 years to life for third strike
conviction of petty theft was not unconstitutional]; People v. Cartwright (1995) 39
Cal.App.4th 1123 [third strike sentence consisting of an indeterminate term of 375 years
to life and determinate term of 53 years for violent sexual assaults on three women was
not cruel and unusual punishment].)
       “‘“Whether a particular punishment is disproportionate to the offense is, of course,
a question of degree. The choice of fitting and proper penalties is not an exact science,
but a legislative skill involving an appraisal of the evils to be corrected, the weighing of
practical alternatives, consideration of relevant policy factors, and responsiveness to the
public will; in appropriate cases, some leeway for experimentation may also be
permissible. The judiciary, accordingly, should not interfere in this process unless a
statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe
in relation to the crime as to violate the prohibition against cruel or unusual punishment.”
[Citation.] “Defining crime and determining punishment are matters uniquely legislative
in nature, resting within the Legislature’s sole discretion.” [Citation.]’ (People v. Lewis
(1993) 21 Cal.App.4th 243, 251.) ‘“Only when the punishment is out of all proportion to
the offense and is clearly an extraordinary penalty for a crime of ordinary gravity
committed under ordinary circumstances, do the courts denounce it as unusual.”
[Citation.]’ (Ibid.)
       “‘Our Supreme Court has emphasized “the considerable burden a defendant must
overcome in challenging a penalty as cruel or unusual. The doctrine of separation of


                                               20
powers is firmly entrenched in the law of California, and a court should not lightly
encroach on matters which are uniquely in the domain of the Legislature. Perhaps
foremost among these are the definition of crime and the determination of punishment.
While these intrinsically legislative functions are circumscribed by the constitutional
limits of article I, section 17 [of the California Constitution], the validity of enactments
will not be questioned ‘unless their unconstitutionality clearly, positively, and
unmistakably appears.’” [Citation.]’ (People v. Kinsey (1995) 40 Cal.App.4th 1621,
1630.)” (People v. Sullivan, supra, 151 Cal.App.4th at p. 569.)


               3.    Punishments in Other States
       Without citing any specific examples, defendant argues that because comparable
“‘one-strike’ laws are drafted much more narrowly than in California, and generally
target serious violent offenders, appellant’s sentence constituted cruel and unusual
punishment.”
       A similar contention was rejected by the court in People v. Martinez (1999) 71
Cal.App.4th 1502, 1516, with which we agree: “That California’s punishment scheme is
among the most extreme does not compel the conclusion that it is unconstitutionally cruel
or unusual. This state constitutional consideration does not require California to march in
lockstep with other states in fashioning a penal code. It does not require ‘conforming our
Penal Code to the “majority rule” or the least common denominator of penalties
nationwide.’ (People v. Wingo (1975) 14 Cal.3d 169, 179.) Otherwise, California could
never take the toughest stance against repeat offenders or any other type of criminal
conduct. [¶] ‘[T]he needs and concerns of a particular state may induce it to treat certain
crimes or particular repeat offenders more severely than any other state. . . . [¶] Whether
a particular punishment is disproportionate to the offense is a question of degree. The
choice of fitting and proper penalty is not an exact science but a legislative skill involving
an appraisal of the evils to be corrected, the weighing of practical alternatives,
consideration of relevant policy factors, and responsiveness to the public will. In some
cases, leeway for experimentation may be permissible. Thus, the judiciary should not


                                              21
interfere in the process unless a statute prescribes a penalty “‘out of all proportion to the
offense.’”’ (People v. Cooper [(1996)] 43 Cal.App.4th [815,] 827, quoting In re Lynch,
supra, 8 Cal.3d at pp. 423-424.)”


       C.     The Sentence Does Not Constitute Cruel and Unusual Punishment Under
              the Federal Constitution
       Defendant contends that his sentence constitutes cruel and unusual punishment
under the federal Constitution. The contention lacks merit.
       “The Eighth Amendment prohibits imposition of a sentence that is ‘grossly
disproportionate’ to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11,
20-21; People v. Carmony (2005) 127 Cal.App.4th 1066, 1076 . . . .) In a noncapital
case, however, successful proportionality challenges are ‘“exceedingly rare.”’ (Ewing,
supra, 538 U.S. at pp. 20-21 [sentence of 25 years to life in prison for felony theft of golf
clubs under California’s “Three Strikes” law, with prior felonies of robbery and burglary,
did not violate federal prohibition on cruel and unusual punishment].) In the rare case
where gross disproportionality can be inferred from (1) the gravity of the offense and
harshness of the penalty, the court will consider (2) sentences imposed for other offenses
in the same jurisdiction and (3) sentences imposed for commission of the same crimes in
other jurisdictions. (Harmelin v. Michigan (1991) 501 U.S. 957, 1005 [sentence of life in
prison without possibility of parole, for possessing 672 grams of cocaine, was not cruel
and unusual punishment].) ‘[I]t is only in the rare case where a comparison of the crime
committed and the sentence imposed leads to an inference of gross disproportionality that
the second and third criteria come into play.’ (People v. Meeks (2004) 123 Cal.App.4th
695, 707, citing Harmelin v. Michigan, supra, 501 U.S. at p. 1005 (conc. opn. of
Kennedy, J.).)” (People v. Haller (2009) 174 Cal.App.4th 1080, 1087-1088.)
       For the reasons discussed in the preceding sections, we conclude that defendant
has failed to show that his sentence was grossly disproportionate to the severity of the
crimes in violation of the Eighth Amendment.



                                              22
       D.     Custody Credits
       The Attorney General contends, and defendant agrees, that the abstract of
judgment fails to reflect the correct number of presentence custody credits. The trial
court stated at sentencing that defendant was entitled to 911 presentence custody credits
(consisting of 793 actual days in custody and 118 days good time/work time), which was
erroneously recorded in the abstract as 900 credits. We order that the abstract be
corrected to reflect that defendant was given 911 presentence custody credits. (People v.
Mitchell (2001) 26 Cal.4th 181, 185 [errors in abstract may be corrected on appeal].)


                                     DISPOSITION


       The matter is remanded with directions to correct the abstract of judgment to
reflect sentences of: (1) 23 consecutive terms of 25 years to life on counts 1-3, 5-9, 12-
13, 16-20, 22-25, 28-29, and 38-39; and (2) life with possibility of parole on counts 4, 15,
21, 27, and 41, which, along with the fines and penalty assessments on those counts, are
stayed under section 654. The abstract is also to be corrected to reflect 911 presentence
custody credits. The clerk is directed to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 SUZUKAWA, J.

We concur:



       EPSTEIN, P. J.



       WILLHITE, J.



                                            23
