IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.

Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Margaret Venturi and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

In the published portion of this opinion we address alleged sentencing errors under Penal Code section 667.61, also known as the "One Strike" law, and under section 1170.1, as it pertains to firearm-use enhancements on subordinate terms. Stated briefly, defendant was convicted by jury of various violent sex offenses committed on separate dates and against different victims, who we refer to as "R" and "Y."

In July 1995, defendant pointed a handgun and ordered Y into his truck. He drove Y to a remote location, on the way forced her to orally copulate him, and later he committed forcible rape twice, sodomy twice, and another act of oral copulation. Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of kidnap and firearm use. (§ 667.61, subds. (e)(1) & (4).) In August 1995, after R voluntarily rode with defendant to a remote location, he placed a gun to her head, tied her hands, and committed forcible sodomy upon her. Pursuant to section 667.61, the information alleged these crimes were committed under the specified circumstances of firearm use and binding. (§ 667.61, subds. (e)(4) & (6).)

For reasons not disclosed by the record, the information did not allege a multiple victim circumstance pursuant to section 667.61, subdivision (e)(5), and the information was never amended to include this allegation. Even so, the sentencing court applied this circumstance in imposing defendant’s sentence. Although the People argue the court committed harmless error, we hold the sentence was unauthorized under the circumstances, and therefore not subject to harmless error analysis. We reject, however, defendant’s contention that under section 1170.1, the court erred by imposing firearm-use enhancements at one-third the upper term, as opposed to the mid-term, on the subordinate counts.

By amended information, defendant was charged with 10 offenses against 2 separate victims on different dates. Specifically, he was charged with kidnapping with intent to rape (count 1; §§ 207, subd. (a)/208 subd. (d)) and within the meaning of section 667.8, subdivision (a); second degree robbery (count 2; § 211); two counts of forcible rape (counts 3 & 4; § 261, subd. (a)(2)); three counts of forcible sodomy (counts 5, 6, & 9; § 286, subd. (c)); two counts of forcible oral copulation (counts 7 & 8; § 288a, subd. (c)); and forcible anal and genital penetration by a foreign object (count 10; § 289, subd. (a)). Regarding all counts, it was alleged that defendant personally used a firearm within the meaning of section 12022.5, subdivision (a). With respect to sex offense counts 3 through 8, it was alleged the circumstances of kidnap and use of a firearm applied, within the meaning of section 667.61, subdivisions (a) and (e). Finally, as to sex offense counts 9 and 10, it was alleged that the circumstances of binding or tying the victim and use of a firearm applied, within the meaning of section 667.61, subdivisions (a) and (e).

Defendant pled not guilty and denied all the allegations. His motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 was denied after the court reviewed the records. Defendant’s motion to suppress evidence seized from his home was denied. Finally, defendant’s motion for separate trials was denied.

Following a jury trial, defendant was found guilty as charged, and all the allegations were found true.

Probation was denied, and defendant was sentenced to prison for 2 consecutive 35-years-to-life terms on counts 3 and 9 (25 years to life, plus a 10-year gun use enhancement for each offense). In addition, a consecutive determinate term of 85 years was imposed as follows: the principal term of 5 years on count 1, plus a 10-year gun use enhancement; 5 years and 4 months each on counts 4, 5, and 6; and 18 years each on counts 7, 8 and 10 (upper term of 8 years for the underlying offenses plus 10 years for the gun use).

Timely notice of appeal was filed.

The July 14, 1995, assault

On July 14, 1995, Y was 16 years old and lived in Visalia. Late that afternoon, Y had been with her friends and had snorted amphetamine. She was dropped off at her apartment complex at about 11 p.m. After walking her friend home, Y returned to her apartment and stood outside, smoking a cigarette. At this point, a blue or gray pickup truck pulled up in front of Y. The driver was a man, and he asked Y what she was doing. When Y responded, the man pulled out a gun, ordered Y into the truck, and threatened to shoot her if she did not comply. Y got into the passenger side, and the man, later identified as defendant, drove westbound.

When the truck slowed for an intersection, Y tried to open the door to jump out, but defendant grabbed her, sped up, and turned northbound. He told Y not to try anything stupid again or he would shoot her. Defendant asked Y if she drank alcohol, and she said she did not. Defendant then gave her a beer and told her to drink it quickly, which Y did because defendant had the gun pointed to her head.

As they continued toward the mountains, defendant asked about Y’s boyfriend and whether she was sexually active. When Y told defendant she was a virgin, he did not believe her because "he didn’t know of any wetbacks being a virgin." As they talked, Y stared at defendant’s face so she would be able to identify him if she survived the kidnapping. Defendant had large round eyes and dirty blonde hair. He wore a white shirt and neon green shorts. His socks and tennis shoes were white, but both were dirty. Y continued to stare at defendant until he told her to stop.

Defendant asked Y if she used drugs, and she said she did not. Defendant stated he had done "meth" and some other kind of drug. He was hyper and kept fidgeting, causing Y to suspect defendant was under the influence. Y testified she was not feeling the effects of the drug she had taken earlier.

As he continued to drive, defendant ordered Y to remove her shirt. When she did, defendant grabbed her left breast. He ordered Y to remove her bra, empty her pockets, take off her jewelry and place everything on the dashboard. When Y attempted to comply, defendant pulled off her necklaces because she was too slow. Defendant then ordered Y to remove her pants so he could check the pockets. After doing so, defendant took the belt off and put it on the dashboard. Defendant then began grabbing Y’s leg and touched her vagina over her panties. Y asked defendant to stop because she was menstruating. Defendant ordered Y to remove her tampon and throw it out the window, and then resumed touching her vagina.

Defendant next told Y to lay her head on his lap. He took out his penis and told Y to suck it. Defendant grabbed Y and pushed her head towards his penis, holding her down while she orally copulated him. Defendant then hit Y on her lower back and buttocks area with his open hand. He spit on Y, and started hitting her with the belt, telling Y that if she cooperated he might let her go.

Eventually, defendant turned onto a dirt road and stopped in an orchard. Defendant told Y, who was still orally copulating him, to get out of the truck on the driver’s side. He ordered Y to face the truck door, lean against it, spread her legs and arch her back. Defendant removed Y’s panties and threw them into the truck. He pushed down on Y’s back and inserted his penis in her vagina. After awhile, defendant took his penis out and put it into Y’s anus. As he did this, Y used her fingernails to scratch the inside of the truck for future identification. Defendant reinserted his penis into Y’s vagina. At this time, Y bit on the window’s rubber molding to leave teeth marks. After about three minutes, defendant removed his penis and told Y to bend down and touch the ground. When she did so, defendant reinserted his penis into Y’s anus. The whole time, defendant held a gun.

After the sodomy, defendant ordered Y to turn around, get on her knees, and suck his penis again. Defendant grabbed Y’s head, and pushed it toward his penis area. He told Y not to stop until directed to do so. Y did not know how long she orally copulated defendant, but he ejaculated into her mouth. Y began to gag, and defendant stated, "look, bitch, I didn’t tell you to stop, and he pushed [Y’s] mouth against his penis again." Y spit the semen on the ground, and some landed on her chest and arm.

Subsequently, defendant tied Y’s shirt around her eyes, put her pants back on, and placed her in the truck. He drove for awhile, stopped, and pushed Y out. After defendant drove away, Y found a house and the police were summoned.

Y described the handgun as small and solid black, similar to a .380-caliber semiautomatic Makarov pistol. Y said the rapist was in his early 20s and taller than her, estimating his height at five feet, seven inches. Looking at defendant standing up in the courtroom, Y estimated his height at five feet, seven inches. She said his hair looked different because it was shaved, and at the time of the assault, was dirty blonde and "curly wavy."

A sexual assault examination revealed physical trauma to Y’s vagina and anus that were consistent with rape and sodomy. Positive signs of semen were located on Y’s chest, neck, the bottom of her chin, and the left buttocks area. Bruising and finger marks were present on Y’s buttocks. Spermatozoa were found in a swab from Y’s vagina. The sperm was examined in a DNA laboratory, and the results were inconclusive.

Detective Steven Shear of the Visalia Police Department showed Y a photographic lineup on August 1, 1995, which contained a suspect at position two. Y did not identify anyone. Subsequently, on August 28, 1995, Shear showed Y two other photographic lineups. Defendant was included in both, but with different photographs. Y picked defendant’s photos from both lineups as her assailant.

Just prior to trial, Y positively identified the pickup truck in which she had been kidnapped. The police tracked it to Marisio Lopez, who had purchased it in 1995. Lopez had difficulty registering the truck because he had to obtain a signature from the Mancebo family releasing the truck to him.

Y attempted to retrace the path defendant had taken during the kidnap the next day, on August 14, 1995, accompanied by Detective Sharon Brown of the Visalia Police Department. Detective Brown took photographs of tire tracks located where Y was raped. The width between the tracks was 52 inches.

At approximately 2 a.m. on August 14, 1995, Officer Juan Alfaro of the California Highway Patrol stopped a purplish Thunderbird driven by defendant in an area outside the Tulare city limits. The Thunderbird had paper plates with the name of an automobile dealership, but Alfaro could not recall the name. He cited defendant for having an open container of alcohol.

The August 14, 1995, encounter

At approximately 6:30 a.m. on the same morning, Lorraine Parks had gone jogging in Visalia. As she was walking to her car, Parks saw a vehicle with a "strange color that sparkled in the sunlight." It drove across the street and stopped with the driver’s side facing her. Parks leaned toward the driver, who asked directions to Demaree, a main thoroughfare in Visalia. Parks gave the driver, who she later identified as defendant, directions. Since he appeared confused, she repeated the directions. Parks became suspicious, and stepped back. When defendant stated he wanted to write down the directions and reached toward the right side of the car, she became nervous and ran to her car. Defendant was polite and soft-spoken.

Parks described defendant’s car as a sporty two-door, and at first thought it was a Firebird or Camaro. Later, however, she saw a Ford Thunderbird and recognized it as the same model. She could not recall the color of defendant’s Thunderbird, except that it had metallic paint and may have been bluish.

On August 17, 1995, three days later, Parks read in the newspaper about a rape that occurred after the driver, asking for directions to Demaree and acting confused, lured the victim into the car. Parks called and spoke to Detective Danny Haynes. On August 24, 1995, Haynes showed Parks a photographic lineup. Prior to viewing the lineup, Parks read and signed a lineup instruction form. She picked defendant’s photograph as looking most like the man who had approached her for directions. However, she was not positive because his hairstyle had changed completely. When he approached Parks, defendant had short hair, which Parks described as a normal man’s haircut. In the photo, however, defendant had a buzz cut. After identifying defendant at position number three, Parks asked, "Is number 3 the one?" Haynes responded, "Number 3 is the one we have in custody."

In October 1995, Parks attended defendant’s preliminary hearing. She observed defendant, and focused on his face. After watching defendant for two or three minutes, Parks was certain defendant was the person who had contacted her in the Thunderbird.

The August 14, 1995, assault

R, an 18-year-old female, was an employee of the Radisson Hotel in Visalia. At approximately 11 a.m. on August 14, 1995, R had just finished exercising at a gym and was walking down Main Street to check her work schedule. As she walked, R noticed a person, who she later identified as defendant, in a car waiting at a stop sign. R described the car as a two-door Ford Thunderbird with an unusual color, "like a bluish purple." R was listening to music on her Walkman. She again noticed defendant looking at her and moving his lips as though he were talking to her. R removed her headphones and defendant asked her to help him either open or close his trunk. She did so, and noticed a large, unattached speaker facing up. Defendant offered R a ride, but she declined.

R continued walking to the hotel and checked her schedule. When she came out five or ten minutes later, defendant was there, and he asked for directions to Demaree Street. R gave him directions twice, but defendant looked puzzled. He stated his name was Josh, that he was from Fresno, and was a student at Fresno State. He also said he had been driving all day, had no idea where he was, and really needed her assistance. Defendant seemed trustworthy so R decided to help.

R got into the vehicle and defendant began to drive. They talked, and R asked if defendant "partied." Defendant said, "hell ya," and that he used methamphetamine. R stated she used to smoke weed and use crank, but had stopped. Defendant said he was going to meet friends who were planning a marijuana party, and defendant would provide them with crank. After talking about their personal experiences with crank, defendant offered some to R. She initially declined but eventually agreed. Defendant indicated he wanted to go out of town so they would not be caught.

They stopped in a cornfield behind a dairy, where they each snorted some crank. Defendant showed R speakers and an amplifier located in the trunk of his car. R then declined defendant’s offer to do another line of crank. They got back into the vehicle and defendant began driving. He made so many turns that R became completely lost. During the drive, R looked through defendant’s compact discs (CD), which he kept in a black, nylon carrying case, and played some of them. She recalled a Pearl Jam, and Beastie Boys CD. After R put the Beastie Boys CD in the player, defendant stopped in an orchard. However, defendant saw a tractor and immediately left. He drove to another orchard that had windmills, and parked. There, defendant snorted another line of crank. He then told R he was getting out because he felt jittery. He left and was gone for a long time. R became bored, so she worked on her hair, played her Walkman, and eventually looked into a paper bag next to the driver’s seat. In it she saw two adult movie tapes. R suddenly realized she was in the middle of nowhere with a stranger, and became frightened. She got out of the car, but defendant placed a gun to her head and stated, "‘surprise surprise.’"

R froze, and told defendant she would do whatever he wanted as long as he did not hurt her. Defendant replied, "’I could do whatever the fuck I want.’" R asked if he was going to let her go, and he said, ‘"It all depends on how good you are.’" R thought defendant would kill her if she did not please him. She decided to feign interest in having sex. R told defendant he did not need a gun, that she would have sex with him. Defendant put the gun on a blanket he had spread on the ground and told R to undress. After R removed everything but her socks, defendant tied her hands behind her back.

R got on her knees, and defendant put his finger in her vagina. He then took it out and spit on R’s buttocks. Defendant used his finger to wipe the saliva around. Defendant asked if she "had ever had it in the butt, and [R] said no." Defendant then put his penis in R’s anus, which was very painful. Defendant scooped up dirt and dry leaves, and said, "eat dirt, bitch," as he tried to shove it into R’s mouth. Defendant also stated, "I hate girls, they’re all bitches," as he repeatedly hit R on her head. R thought defendant was going to kill her, and involuntarily defecated. Defendant stopped, and R got up and asked what happened. Defendant stated, "’You shitted all over me.’" R stated she was going to clean herself and walked away while defendant stood still. As she walked, R twisted one hand free, and began to run as fast as she could. Eventually, R found a man sitting under a tree. He drove her to a nearby residence where she cleaned herself and called the police.

Police subsequently transported R to the hospital for a sexual assault examination. R had ripping and tearing of the anal opening, which was consistent with forcible sodomy.

R remembered that defendant had been wearing long, light-colored shorts, a white muscle shirt, a baseball cap, white ankle socks, and white tennis shoes. R, who was five feet, two inches tall, estimated defendant’s height at about five feet, seven inches. At trial defendant stood up for R, and she testified he looked the same, i.e., about five feet, seven inches to five feet, eight inches tall. The gun used by defendant appeared to R to be similar to an all black .380-caliber semiautomatic Makarov pistol.

Defendant’s arrest and collection of evidence

On August 23, 1995, Officer Mark Lopez of the Visalia Police Department stopped defendant, who was driving his two-door, bluish purple, 1994 Ford Thunderbird, with paper license plates. Lopez did not want to let defendant know the real reason for the stop, so he told him he was investigating a robbery, and asked defendant if he had any firearms in the vehicle. Lopez spoke briefly with defendant, and eventually returned to the subject of firearms. Defendant consented to a search of his vehicle, but no firearm was found. Lopez did find a hollowed-out pen containing possible narcotics residue, and asked defendant about it. Defendant admitted using methamphetamine in the past, stating he had used it the weekend before. Defendant consented to a search of his person, and Lopez found a small amount of suspected amphetamine in defendant’s wallet. When Lopez discovered the drug, defendant stated, ‘I didn’t know there was any left.’" Defendant’s wallet also contained a firearms safety certificate and an expired driver’s license, both in the name of Stephen Mancebo, defendant’s brother.

On the day of defendant’s arrest, a photo was taken and put into a lineup. R picked out defendant’s photo from the photographic lineup. When R was shown the lineup, she looked at it for two or three seconds and pointed at defendant’s photo as the man that raped her, stating, "’Oh, my God, I’m gonna be sick.’"

On August 24, 1995, police conducted a search of defendant’s residence, which was a trailer located on a dairy farm owned by defendant’s parents. Several items were seized, including a traffic citation in defendant’s name, a box for a .380-caliber handgun, .380-caliber ammunition, white tennis shoes, brown leather boots, and several adult movies. Two of the adult movies involved anal sex, one being entitled "Butts 4," and another "Colossal Combos."

A search of defendant’s Thunderbird resulted in seizure of a black compact disc carrying case containing CDs by the Beastie Boys and Pearl Jam.

Shoe prints taken at the scene of R’s assault were compared to the tennis shoes recovered from defendant’s house, and found to be similar. Tire prints at the scene were also compared to the tires from defendant’s Thunderbird. The tracks were consistent in size, shape, and design with the tires on defendant’s vehicle.

Don Parker owned the Southside Pawnshop in Visalia, from which he sold guns. On May 20, 1995, Parker spoke with a customer identifying himself as Stephen Mancebo, who purchased a gun. The customer presented a California driver’s license and a firearm safety course certificate in the name of Stephen Mancebo. As a licensed seller of firearms, Parker could not sell a firearm to a person under 21 years of age. On June 8, 1995, after the mandatory waiting period, the customer picked up the gun, a .380-caliber semiautomatic Makarov pistol. Subsequently, Parker attempted to have the gun returned because of a problem with the paperwork filed with the Department of Justice. Parker called the Mancebo residence and talked to two males, both of whom denied purchasing the gun. Later, Parker viewed a photographic lineup with defendant’s photo in the number three spot. Although Parker could not positively identify the man who purchased the gun, he stated defendant’s photo looked familiar.

Stephen Mancebo, defendant’s brother, testified he never purchased a gun from the Southside Pawnshop, and did not take a firearm safety course. He further testified the signature on the certificate bearing his name, and which was found in defendant’s wallet, was not his. Defendant is over four years younger than Stephen, and would not have been twenty-one years old when Parker called about the gun.

With regard to the offenses against Y, the defense introduced evidence that on June 28, 1995, defendant had short straight hair -- maybe one or two inches on top. According to his godmother, Cheryl Limas, defendant’s hair was cut very short around the sides but was not a buzz cut. A cousin of defendant’s wife, Patricia Hunsaker, testified that on July 21, 1995, defendant’s hair had a buzz cut.

Defense investigator Richard Miller went to where Y stated the assault took place. He observed farm implements located approximately one-quarter mile from the site of the assault, including a harrow with tires that were seven inches wide and an outside wheel track of 52 inches. The width between the tire tracks at the scene measured 52 inches. An expert in tire track evidence opined that the harrow photographed by Miller made the tire track impressions at the crime scene.

Regarding the offenses against R, the defense presented testimony from two employees at Lee’s Stereo, which is a car stereo sales and installation store in Visalia. Richard Borges testified he prepared a work order on August 14, 1995, for a stereo installation for defendant. The majority of the equipment to be installed by Lee’s already belonged to defendant, and had come from defendant’s prior vehicle. The installation was done by John Verissimo, and was completed on August 18, 1995. Based on the date of the work order, Borges recalled the vehicle, a blue Thunderbird, was left in the late morning of August 14, and picked up in the evening, with little if any work done to it. However, on August 24, 1995, he spoke with police and positively stated the earliest day defendant dropped off the car was August 15, 1995. John Verissimo testified that defendant left his car on the morning of August 14, 1995, and picked it up late that afternoon. When Verissimo received the car, the speakers were lying in the trunk facing up.

The parties stipulated defendant’s height at the time of trial was six feet, two and three-quarters inches.

Defendant contends the trial court erred by denying his motion to suppress evidence seized from his residence. The trial court found the search was lawful based on defendant’s wife’s consent to the search of their residence. The thrust of defendant’s argument is that his wife’s consent was insufficient to override his prior denial of consent. Defendant’s contention has no merit.

The salient facts are not in dispute. After defendant was arrested, he was interviewed. The interviewing officer requested consent from defendant to search his home, and defendant refused. However, the court made no factual findings on the issue, ruling only on whether his wife could and did validly consent.

Following the interview, Sergeant Zapalac of the Tulare County Sheriff’s Office went to defendant’s residence and obtained consent from his wife, Mandy, who lived with defendant in a trailer. Zapalac described Mandy as very cooperative during the search.

As the finder of fact in a proceeding to suppress evidence, the superior court is vested with the power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. (People v. Lawler (1973) 9 Cal.3d 156, 160.) Accordingly, in reviewing the denial of the suppression motion, we consider the record in the light most favorable to the People since "all factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion." (People v. Martin (1973) 9 Cal.3d 687, 692.) But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Lawler, supra, 9 Cal.3d at p. 160.)

The question of whether consent was given by defendant’s wife is a question of fact. (People v. Wilkins (1993) 14 Cal.App.4th 761, 772.) Here, substantial evidence supports the trial court’s finding of consent based on the testimony of Sergeant Zapalac. We next consider the constitutional significance of that factual finding, i.e., whether the consent was effective to authorize a search of the residence, on which we exercise independent judgment. (Id. at p. 773.)

In People v. Woods (1999) 21 Cal.4th 668, 675-676, the California Supreme Court recently summarized the law of consent searches as follows:

In this case, defendant does not dispute that his wife had common authority to consent to a search of their residence by law enforcement. Instead, defendant argues his wife’s consent was constitutionally inadequate because the officers failed to advise her, prior to obtaining her consent, that he had expressly refused to give them consent earlier. Defendant provides no authority for this novel proposition, which is contrary to the well-settled rule that a consent-based search is valid when consent is given by one person with common authority over the area to be searched. Since the consent of other interested parties is unnecessary, defendant fails to explain the constitutional significance of Sergeant Zapalac’s failure to inform Mandy that defendant refused to consent to the search.

In sum, the trial court did not err by denying defendant’s motion to suppress based on Mandy’s consent because she had common authority to authorize the search even in the face of defendant’s own express objections. As we noted in People v. Veiga (1989) 214 Cal.App.3d 817, 829, "It would seem Matlock and Haskett made irrelevant a defendant’s express objection to entry, his or her privacy having been surrendered by virtue of the election to share quarters with another." (Accord People v. Berkowitz (1995) 34 Cal.App.4th 671, 675; U.S. v. Morning (9th Cir. 1995) 64 F.3d 531, 536.)

At trial, defendant made a motion to sever the counts involving victim Y from those of victim R. On appeal, he contends the trial court committed prejudicial error when it denied this motion for separate trials.

Section 954 provides, in pertinent part:

Section 954.1 provides:

Under section 954.1, cross-admissibility of evidence has been eliminated as a pertinent consideration for severance of crimes belonging to the same class of offenses. (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1281.) Of course, if the evidence is cross-admissible in separate trials, this is a dispositive basis for denying severance. (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.)

The words "class of crimes or offenses" as used in the joinder statutes have been interpreted to mean offenses possessing common attributes or characteristics. (People v. Ross (1960) 178 Cal.App.2d 801, 805.) Defendant concedes the offenses were properly joined under section 954. Even so, as defendant notes, severance may be necessary in some cases to guarantee a fair trial. (People v. Bean (1988) 46 Cal.3d 919, 935.) "[T]he potential for prejudice in joining unrelated offenses in a single trial lies in the introduction of 'other crimes' evidence from which the jury might infer that the defendant has a criminal disposition -- a factor which the jury is not permitted to consider in determining guilt of the charged offense." (Ibid.)

Thus, the matter of severance is one entirely within the discretion of the trial court. Further, assessment of the claimed error in denying a severance motion must be based on facts and circumstances presented at the hearing on the motion. (People v. Memro (1995) 11 Cal.4th 786, 850-851.) Applying the above criteria, we conclude the trial court did not abuse its discretion by denying the motion.

First, contrary to defendant’s contention, the charged offenses against the two victims would have been cross-admissible under two theories at separate trials -- under Evidence Code sections 1101, subdivision (b), and 1108. Under Evidence Code section 1101, subdivision (b), the offenses would have been cross-admissible to show a common design, plan or scheme. (People v. Balcom (1994) 7 Cal.4th 414, 423-424.) Like in Balcom, defendant employed a common plan to accomplish both sexual assaults. Defendant approached the two victims, and a third potential victim, in his vehicle and struck up a conversation. Neither of the victims previously knew defendant, and both were teenagers. He drove them to orchards on the outskirts of town, and threatened them with a gun. He sodomized them, spit on their buttocks, called them bitches, and struck both victims while engaged in a sexual act with them. He told the victims he would let them go if they cooperated. During both assaults, defendant wore a baseball cap, was dressed in shorts, and wore white tennis shoes. This evidence easily supports the inference that defendant employed a common plan of luring or forcing young women into his car and driving them to secluded areas where he could perpetrate his assaults, including sodomy. Consequently, the existence of such a plan would have been admissible in separate trials.

Defendant argues that in Balcom, identity was not in issue because that defendant claimed consent. While true, the situation in which other crimes evidence is offered to show only a common scheme or plan is different from a joinder of offenses situation. When the offenses are first joined, nobody but the defendant knows what defenses he plans to present. The only "given" is that if a defendant has entered a not guilty plea, he has "put in issue all of the elements of the offenses, including his intent .…" (People v. Balcom, supra, 7 Cal.4th at p. 422.) It is the prosecution’s burden to prove all the elements of the charged offenses. Even if the defendant indicates he will proffer a certain defense, such an indication would not be binding at trial. Yet the issue of severance and cross-admissibility must be addressed pretrial. For this reason, the evidence was properly cross-admissible based on the existence of a common plan, scheme or design even though defendant subsequently presented misidentification as his only defense.

Secondly, under Evidence Code section 1108, which became effective prior to defendant’s trial, where "the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to section 352." (People v. Fitch (1997) 55 Cal.App.4th 172, 178.) Fitch held that Evidence Code section 1108 applies to trials commenced on or after its effective date, even if the crimes occurred prior to its effective date. (Id. at p. 185.) Thus, it would have applied to separate trials in this case, making the offenses cross-admissible, because "Evidence of a prior sexual offense is indisputably relevant to a prosecution for another sexual offense." (Id. at p. 179.) Although he filed a reply brief, defendant has failed to dispute the People’s assertion that Evidence Code section 1108 would have applied to make the offenses cross-admissible.

Under the applicable criteria, there was not a strong likelihood that defendant would be unfairly prejudiced by a joint trial. Where, as here, the offenses satisfied the statutory requirements for joinder, "a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court. (People v. Marshall (1997) 15 Cal.4th 1, 27.) Defendant has made no attempt to show prejudice. Thus, the court did not abuse its discretion by denying defendant’s severance motion. Further, given the cross-admissibility of the evidence, defendant has not established that joinder actually resulted in unfairness that denied him due process. (Id. at p. 28; People v. Johnson (1988) 47 Cal.3d 576, 591 ["One asserting prejudice has the burden of proving it; a bald assertion of prejudice is not sufficient"].)

Defendant contends the 1994 revision to CALJIC No. 2.90 contains an incorrect definition of reasonable doubt because it defines reasonable doubt in terms of an "abiding conviction" rather than a "moral certainty."

We rejected the same argument in People v. Light (1996) 44 Cal.App.4th 879. (Accord People v. Torres (1996) 43 Cal.App.4th 1073.) We noted in Light that the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239] held use of the term "abiding conviction" was the proper standard.

We conclude, therefore, the instruction on reasonable doubt given by the trial court was correct.

Defendant contends the 10-year firearm-use enhancements were improperly imposed on counts 3 and 9 because his firearm-use also supported imposition of 25-year-to-life terms for those counts. Respondent acknowledges there is a problem, but argues harmless error.

Approximately six months after the Legislature enacted the Three Strikes law as urgency legislation, it adopted section 667.61 , the One Strike law. (People v. Ervin (1996) 50 Cal.App.4th 259, 264.) This section sets forth an alternative sentencing scheme for certain sex crimes. These include rape, foreign object penetration, sodomy and oral copulation, all by force. The section "kicks in" if the defendant has previously been convicted of one of seven specified offenses or if the current offense was committed under one or more specified circumstances. Subdivision (a) provides that if defendant has previously been convicted of an offense enumerated in subdivision (c) or if two of the circumstances specified in subdivision (e) apply to the current offense, then an indeterminate term of twenty-five years to life shall be imposed. Subdivision (b) provides that if one of the circumstances specified in subdivision (e) applies, then an indeterminate term of 15 years to life shall be imposed. The alternative sentencing scheme established by section 667.61 does not create a new crime. The subdivision (e) elements are only sentencing factors. The statute, however, requires the element(s) to be pled and proved to the trier of fact. (§ 667.61, subd. (i).)

Defendant asserts, and the record establishes, that only two circumstances enumerated in section 667.61, subdivision (e) (subdivision (e)) were specifically alleged and proved with respect to each victim. Regarding victim Y, the information alleged "that within the meaning of Penal Code Sections 667.61(a) and (e), … the following circumstances apply: KIDNAP AND USE OF FIREARM." With respect to victim R, the information alleged "that within the meaning of Penal Code Sections 667.61(a) and (e), … the following circumstances apply: USE OF FIREARM AND TIE OR BIND VICTIM." Since both allegations included use of a firearm as an enumerated circumstance, defendant contends that under subdivision (f) of section 667.61, the firearm use enhancement under section 12022.5 was improper because this circumstance could only be used to impose the term provided in subdivision (a), "rather than being used to impose the punishment authorized under any other law .…" (§ 667.61, subd. (f).) Based on the plain meaning of the statute’s language, defendant is correct. Under the pleadings as alleged in the information, the imposition of the firearm-use enhancement resulted in an unauthorized sentence.

Respondent attempts to get around the problem by arguing the enumerated circumstance of conviction for offenses against more than one victim, as provided in subdivision (e)(5), was adequately pled and proven. Respondent essentially asks us to substitute this circumstance for the use of the firearm circumstance so the firearm-use enhancement would no longer be in violation of section 667.61, subdivision (f). We reject the contention that the subdivision (e)(5) circumstance was adequately pled and proven. Since subdivision (e)(5) was not pled as a circumstance to bring defendant within the application of section 667.61, subdivision (a), the trial court was not authorized to rely on it for that purpose.

Respondent’s argument is as follows:

Respondent would have us construe the pleading and proof requirements of section 667 by reference only to the language in subdivision (i), i.e., that the "existence of any fact" be alleged. However, when read in conjunction with subdivision (f) of that section, it is clear that for section 667.61 to apply, the information must allege not only facts, but also the "circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) .…" (See People v. DeSimone (1998) 62 Cal.App.4th 693, 696, 698; People v. Jones (1997) 58 Cal.App.4th 693, 709.)

In this case, the information simply charged numerous offenses that involved two victims. However, with respect to these offenses and two victims, section 667.61 was not referenced. In other words, no factual allegation in the information, or pleading in the statutory language, informed defendant that if he were convicted of the underlying charged offenses, the convictions would be considered in connection with section 667.61, subdivision (a). Thus, the pleading was inadequate because there was no notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance for purposes of section 667.61, subdivision (a) application. (See, e.g., People v. Haskin (1992) 4 Cal.App.4th 1434, 1438-1440; People v. Najera (1972) 8 Cal.3d 504 512; People v. Hernandez (1988) 46 Cal.3d 194, 208.)

In Haskin, supra, the defendant admitted an allegation of a prior prison term under section 667.5, subdivision (b), for a prior 1979 burglary conviction. The information did not allege the burglary was of an inhabited dwelling. Based on the People’s exhibit containing proceedings of the 1979 burglary conviction, the court made a factual finding that it was a residential burglary after the defendant had admitted the enhancement allegation. At sentencing, the court imposed an enhancement term of five years for the prior 1979 burglary under section 667. It did so instead of imposing a one-year term as provided by section 667.5, subdivision (b), which was what the information had alleged and the defendant had admitted. The Court of Appeal held "[b]ecause appellant was neither statutorily nor factually charged with, nor consented to, a substituted section 667 enhancement in conjunction with the 1979 offense, the trial court was without authority to impose a sentence greater than that authorized by section 667.5, subdivision (b), the charging statute which appellant admitted." (People v. Haskin, supra, 4 Cal.App.4th at p. 1440.) Haskin is distinguishable because it involved an admission rather than a conviction following a jury trial.

In People v. Najera, supra, 8 Cal.3d at p. 504, the defendant was charged with robbery. The information further alleged defendant "was ‘armed with a deadly weapon, to-wit, a gun.’" (Id. at p. 506.) The evidence established the defendant used a firearm during a robbery. (Id. at p. 507.) However, the information did not allege a violation of section 12022.5. (Id. at p. 509, fn. 4.) The court first held the necessary firearm use finding had to be made by the jury, as trier of fact, and not simply by the trial judge. (Id. at pp. 509-510.) Since the prosecution failed to present the issue to the jury, the court concluded "the People waived application of section 12022.5 by failing to have the matter resolved at trial." (Id. at p. 512.) Najera is distinguishable. Here, although not directly presented with the issue, the jury’s verdicts are at a minimum, an implied factual determination that defendant was convicted of "an offense specified in subdivision (c) against more than one victim." (§ 667.61, subd. (e)(5).)

In People v. Hernandez, supra, 46 Cal.3d at page 194, the court resolved whether a sentencing judge may impose an additional three-year term under section 667.8 (kidnapping for purpose of rape) when a violation of that section was not pled or proven, and was mentioned for the first time in a probation report. (Id. at p. 197.) The court concluded that "such additional term may not be imposed, since a pleading and proof requirement should be implied as a matter of statutory interpretation and must be implied as a matter of due process." (Ibid.) The court explained:

Hernandez is distinguishable since there are no mens rea or scienter requirements for the multiple victim circumstance other than those subsumed within the requirements of the underlying offenses, which were litigated and resolved against defendant.

Respondent notes that a specific statutory enumeration is not a prerequisite for a valid pleading. (Citing People v. Thomas (1987) 43 Cal.3d 818, 826.) Relying on Thomas, respondent argues "[i]t is sufficient that the allegations in the pleadings placed appellant on notice that the facts underlying the multiple victim circumstance would be at issue." However, this is not the holding in Thomas. Rather, Thomas involved whether a person accused of a general charge of manslaughter, alleged as "‘wilfully unlawfully and witho[ut] malice aforethought,’" could be convicted of involuntary manslaughter. (Id. at p. 827.) The court held the inclusion of the word "’wilfully’" to the accusatory pleading did "not transmogrify the crime charged from manslaughter generally to voluntary manslaughter exclusively." (Id. at p. 828.) The court further noted the defendant had not demonstrated "he was prejudiced by the admittedly inartful wording of the information." (Ibid.)

Respondent’s reliance on People v. Marshall (1996) 13 Cal.4th 799 is misplaced. There, the defendant was charged with three first-degree murders, and a death sentence was sought by multiple-murder special-circumstances allegations. The trial court decided not to present the issue of the multiple-murder special-circumstances allegation to the jury. It reasoned that if the jury found defendant guilty of more than one of the murders charged, the special circumstances would be established without the need for any further finding. The Supreme Court found this procedure constituted error, but was harmless. (Id. at p. 850.) Marshall is distinguishable from this case. Here, the special circumstance of multiple victims was not alleged. To the contrary, in Marshall, the defendant was given notice that the People would be seeking the death penalty based on the multiple-murder special circumstances allegation.

Finally, for a similar reason, People v. Jones, supra, 58 Cal.App.4th 693, also relied upon by respondent, is distinguishable. There, the information alleged defendant came within the purview of the "One Strike" law by alleging "a multiple victim circumstance." (Id. at p. 706.) The court found the failure of the trial court to instruct the jury sua sponte on the alleged circumstances was harmless beyond a reasonable doubt. (Id. at p. 709.) Further, the court rejected the defendant’s claim that the jury was required to make a finding, separate from the verdicts, that each multiple victim circumstance alleged was true. Relying on Marshall, supra, the court found any error was harmless. (Id. at p. 712.) The Jones case simply did not present the lack of notice/pleading problem presented here and in Haskin, Najera, and Hernandez. (See People v. Garcia (1998) 63 Cal.App.4th 820, 833, ["The complete lack of notice …, which was the basis for the court’s reversal in Hernandez, is not present in the instant case, and a different standard for assessing prejudice applies here," since the defendant conceded he was on notice of the drive-by allegation].)

In balancing the interests of the state against the constitutional rights of the defendant, respondent’s request that a harmless error analysis be applied to the due process violation here, in the face of the holdings in Hernandez and Najera, must be carefully considered. The language of the statute requiring the circumstances be pled and proved is plain. The specific averments and reference to section 667.61 made by the prosecution in the information regarding the firearm use, kidnapping and binding circumstances evidences the prosecution was aware of the pleading requirements, and knew how to plead them. The failure to include a multiple-victims circumstance allegation must therefore be viewed as a discretionary charging decision. In fact, this conclusion is not only supported by the record, respondent does not even contend the failure to plead was based on mistake or other excusable neglect. Under these circumstances, the doctrines of waiver and estoppel, rather than harmless error, apply. (People v. Hernandez, supra, 46 Cal.3d at pp. 208-209 ["It is unnecessary to … engage in a harmless-error analysis when defendant’s due process rights to notice has been completely violated"]; People v. Najera, supra, 8 Cal.3d at p. 512 ["We conclude that the People waived application of section [667.61, subd. (e)(5)] by failing to have the matter resolved at trial"].)

In light of the pleadings, it is reasonable to conclude the prosecution made its charging decision by interpreting the various provisions of section 667.61 to authorize two consecutive 25-year-to-life sentences under the facts they intended to prove. The two subdivision (e) allegations for each victim meant subdivision (a) would apply to both. In addition, because there were two victims, the subdivision (a) offenses would run consecutively under subdivision (g), i.e., a subdivision (a) term would apply "once for any offense or offenses committed against a single victim during a single occasion." (§ 667.61, subd. (g).) Having pled them in this manner, the trial court was constrained to this application by the express provisions of subdivision (f). As a result, the court gave an unauthorized sentence by sentencing defendant as though the prosecution had alleged an additional subdivision (e) circumstance for each victim based on the multiple victim circumstance under subdivision (e)(5). There are no provisions that grant the trial court the discretion to add circumstances at the time of sentencing on its own motion.

Harmless error

One very recent case has applied a harmless error analysis under circumstances that are factually indistinguishable from those here. (See People v. Knox (1999) 74 Cal.App.4th 757.) However, the court analyzed the issue as an error in failing to expressly plead the multiple victim circumstance without considering waiver or unauthorized sentencing, and did not consider the sentencing directives of subdivision (f).

In Knox, supra, the information charged various sex offenses against three victims. Each count alleged a deadly weapon use circumstance pursuant to section 667.61, subdivision (e)(4). (People v. Knox, supra, 74 Cal.App.4th at p. 762.) The information failed to expressly allege the section 667.61, subdivision (e)(5) multiple victim circumstance. (Id. at p. 761.) After distinguishing the Jones case, supra, the court resolved the issue as follows:

The Knox analysis only makes sense if it is proper to shift the burden to defendant to show prejudice on appeal. We conclude the language of subdivision (f) qualifies the language in subdivision (e). Thus, there must be an express pleading of subdivision (e) circumstances, and not simply a cryptic pleading of the existence of a fact required under subdivision (e). Since this is an unauthorized sentence situation, a harmless error analysis cannot apply. As a result, the firearm enhancements in counts 3 and 9 are ordered stricken.

Defendant contends the trial court erred by imposing one-third the upper term of ten years for firearm use on the subordinate terms for counts 4, 5, and 6. Defendant contends section 1170.1, subdivision (a) required the trial court to use one-third the middle term for the gun use enhancement in calculating his sentence and that it erred in using the upper term instead. We reject this contention.

As pointed out in People v. Sandoval (1994) 30 Cal.App.4th 1288, 1302, the language of the statute does not support defendant’s argument. At the time of defendant’s offenses, section 1170.1, subdivision (a), provided:

Defendant does not dispute the offenses at issue here were all violent felonies. Thus, the trial court was authorized under the plain meaning of section 1170.1, subdivision (a), to impose one-third the upper term on each gun-use enhancement in each subordinate term. (People v. Sandoval, supra, 30 Cal.App.4th at p. 1302.) As noted in Sandoval, the plain language of the statute does not limit enhancements to one-third of the middle term in those instances where the enhancement statute provides for a discretionary range. For the reasons that follow, we conclude defendant provides no persuasive basis to infer the Legislature intended this limitation.

Defendant contends section 1170.1, which was drafted before the advent of ranges for enhancements, indicates the Legislature contemplated the use of middle terms for subordinate terms, not upper or lower terms. He further contends that if the Legislature had intended to allow the use of upper terms to calculate subordinate enhancement terms it could have amended section 1170.1. Thus, according to defendant, its failure to do so indicates the Legislature harbored no such intent. However, this contention is unpersuasive because it ignores the rule of statutory construction that legislative changes are indicative of an intent to leave the law as it stands in aspects not amended. (People v. McClanahan (1992) 3 Cal.4th 860, 865.)

In 1977, former section 1170.1a was renumbered section 1170.1. It was amended to include the unambiguous statement that "The subordinate term for each consecutive offense . . . shall include one third of any enhancements imposed pursuant to Section . . . 12022.5 . . . ." (Stats. 1977, ch. 165, p. 649, § 17.)

Section 12022.5 was enacted in 1969 (Stats. 1969, ch. 954, p.1900, § 1) and originally provided that a person who used a gun in the commission of certain specified felonies was subject to an enhancement of not less than five years. (People v. Najera, supra, 8 Cal.3d at p. 507.) Section 12022.5 was reenacted in 1982. At that time, subdivision (a) provided for an additional term of two years. (Stats. 1982, ch. 1404, p. 5358, § 2.1.) In 1989, section 12022.5, subdivision (a) was amended to provide an additional term of three, four, or five years. (Stats. 1989, c. 18, § 3.) Further, since the establishment of these ranges in 1989, section 1170.1 was amended in 1990, 1992, 1993, and 1994 without imposing any limitation on the term used to impose a subordinate gun-use enhancement. (See Historical and Statutory Notes to § 1170.1.) In view of this, and the statute’s unambiguous statement permitting use of one third "any enhancements imposed," we find the Legislature’s failure to incorporate any such limitation indicates an intent to allow the upper term to be used in calculating subordinate enhancement terms.

Finally, the Legislature’s recent amendment to section 1170.1, subdivision (a), supports the opinion in Sandoval. In 1997, the Legislature amended the section to state that consecutive terms "shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Stats. 1997, c. 750, § 3; Italics added.) The Legislature’s use of the word "term" in light of Sandoval supports the conclusion that the Legislature did not intend to limit imposition of consecutive enhancements to one-third the middle term when applicable.

For all these reasons, defendant’s contention is rejected.

Prior to trial, defendant moved for discovery of evidence in the personnel records of several police officers involved in the investigation pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531. Defendant alleged he was subjected to coercive techniques during police questioning, including physical force and verbal assaults. A hearing was held on March 27, 1996. The court held an in camera hearing to review the records and determined that nothing relevant to defendant’s case existed in the documents. The court then ordered the records sealed. Defendant now requests we do an independent review, and respondent agrees this is the proper procedure on appeal.

The power of a trial court to provide for discovery in criminal cases is inherent and exists even in the absence of constitutional mandate or enabling legislation. In Pitchess v. Superior Court, supra, 11 Cal.3d 531, this inherent authority was invoked to authorize the discovery of police department personnel records in certain situations. (People v. Memro (1985) 38 Cal.3d 658, 677.)

In 1978, the Legislature codified the procedures and privileges applicable to Pitchess motions in sections 1043 through 1045 of the Evidence Code and sections 832.7 and 832.8 of the Penal Code. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84.) Section 1043 of the Evidence Code outlines the method by which disclosure must be sought. It requires the party seeking the records to submit affidavits showing "good cause" for their discovery, setting forth the materiality of the requested documents and stating "upon reasonable belief" that the governmental agency actually has them. (Evid. Code, § 1043, subd. (b)(3).) If the applicant's affidavits demonstrate the requisite good cause, the trial court must examine the material in camera, according to guidelines set out in Evidence Code section 1045, to determine its relevance to the case. This "statutory scheme thus carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to his defense." (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.) The relatively relaxed standards for showing good cause are offset by the protective provisions for in camera review. (Ibid.)

Trial courts are granted wide discretion when ruling on a motion to discover police personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) In reviewing a trial court's ruling on the discoverability of such material, we apply an abuse of discretion standard. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.)

Our independent review of the transcript of the in camera proceeding satisfies us the trial court did not abuse its discretion by denying the Pitchess motion. The trial court made the necessary determination of relevance as it relates to the records produced. Our review of the record reveals there were no complaints against any of the officers regarding coerced confessions or use of coercive techniques in questioning. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 404; Herrera v. Superior Court (1985) 172 Cal.App.3d 1159, 1163.)

The judgment is modified by striking the sentences imposed for the firearm-use enhancements attached to counts 3 and 9. The trial court shall prepare an amended abstract of judgment. In all other respects the judgment is affirmed.

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WISEMAN, J.

WE CONCUR:

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DIBIASO, Acting P.J.

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