# People v. Brown > California Court of Appeal · September 21, 1994 · 28 Cal. App. 4th 591 URL: https://www.frixlaw.com/law-library/cases/9747879 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. DANNY LAVEL BROWN, Defendant and Appellant - **Court:** California Court of Appeal - **Decided:** September 21, 1994 - **Citations:** 28 Cal. App. 4th 591; 33 Cal. Rptr. 2d 678; 94 Daily Journal DAR 13361; 94 Cal. Daily Op. Serv. 7278; 1994 Cal. App. LEXIS 948 - **Precedential status:** Published - **Opinion:** Concurring in part by Johnson - **Judges:** Lillie, Johnson - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747879 ## Opinion text JOHNSON, J., Concurring and Dissenting. I concur with my colleagues as to most of the issues discussed in the majority opinion. I respectfully dissent, however, from that portion of the opinion imposing consecutive sentences for each of eight of appellant’s penile thrusts during his single sexual assault on one of the victims, Jamie S. Before explaining my reasons, I want to highlight what I am not arguing in this case. I am not saying appellant’s crime was not terrible and deserving of severe punishment. Nor am I suggesting the total punishment imposed for appellant’s rape of this victim would not have been justified if that were the sentence allowed for a single sexual assault of this nature. Furthermore, I am not concerned about the consecutive sentences imposed for different sexual acts against the same victim—e.g., the sodomy and the rape of Jamie S. —even though they occurred as part of the same transaction. What bothers me instead is the way this sentence was compounded by treating eight thrusts of appellant’s penis as separate crimes, each carrying a sentence of eight years, despite the fact these thrusts all occurred during a single act of forced intercourse. Fully 56 years of appellant’s 107-year sentence represent the 7 additional sentences the trial court imposed for the 7 thrusts occurring after appellant first penetrated the victim’s vagina and before he completed the sexual assault. *603 This case does not require me to reach the question of the constitutionality (under either equal protection or cruel and unusual punishment clauses) of Penal Code section 667.6 1 and its provision that as to certain sex crimes— and those only—trial judges may impose consecutive sentences for separate crimes even though they occur during the same transaction. My quarrel is not with the Legislature, but with the trial court’s interpretation of the code provision the Legislature enacted and what that section allows courts to consider as separate crimes for purposes of sentence enhancement. In my view, this trial court stretched the statutory language beyond its intended meaning. I do not think the Legislature intended the duration of a defendant’s sentence to depend on irrational, arbitrary factors unrelated to the violence of the sexual assault, the quantity or severity of the injury the victim suffers, or the scope of the defendant’s ambition. One defendant can apply enough brute force or make a credible enough threat (probably by brandishing a weapon) that the victim holds still and thus the defendant can complete the entire act of intercourse with a single initial entry. Even under this trial court’s interpretation of section 667.6, this brutal or well-armed defendant receives a total eight-year sentence for the single completed act of forced intercourse. The next defendant, however, is not very strong and is unarmed, as well. He is unable to force or threaten his victim enough. As a result, she flinches every time he attempts to enter her. So it takes “eight or nine” tries before he is able to insert his penis securely into the victim’s vagina and complete this single act of rape. What does he get for his lack of strength and armament? As this trial court interprets section 667.6, he gets 64 years for this single completed act of coerced intercourse—8 times the sentence imposed on the larger, stronger or well-armed rapist for a similar single rape. Does this make sense? I think not. Which defendant is more dangerous? Which inflicts the greater harm on the victim? Which exhibits the intention to commit the greater number of rapes on the victim? To the extent there is a difference, I submit it is the stronger or better armed rapist who poses the greater threat and is likely to inflict the greater harm on the victim. Now, I realize life isn’t always fair. Nor are sentencing decisions. But I think there are some limits to the unfairness the law will tolerate. In this case, a limit is placed on how finely a trial court can “slice” a single crime of rape into separate offenses in order to multiply the punishments it inflicts on the defendant. *604 The majority relies primarily on People v. Harrison (1989) 48 Cal.3d 321 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] (cited with approval in People v. Hicks (1993) 6 Cal.4th 784, 788 [ 25 Cal.Rptr.2d 469 , 863 P.2d 714 ]) for the proposition the trial court can slice this single sexual assault as many times as it takes for appellant to achieve a secure insertion and can inflict a separate punishment for each one of those slices. If it had taken appellant 100 thrusts before he managed to securely insert his penis, the trial court could have handed him an 800-year sentence. I think Harrison is readily distinguished, however. In that case the prosecution charged the defendant with three sexual acts of inserting his fingers in the victim’s vagina. The Supreme Court went out of its way to emphasize how these three incidents represented distinct and individual acts, the second and third constituting a resumption of the sexual assault after a “break in the activity” and accompanied by “intervening acts of force.” As our high court recounted the attack(s) on the victim in Harrison : “Virginia [the blind victim] immediately started to scream and raised her arms to protect her face. Defendant grasped her shoulders and began hitting her in the face and upper arms. He then reached inside her underwear and inserted his finger into her vagina. While he was doing so, Virginia continued to struggle and ended up standing on the bed. She eventually pulled away and dislodged defendant’s finger, which had been in her vagina for four seconds. “Virginia continued to scream and defendant continued to hit her. He then pushed her so that she was lying on the bed, and he was in a kneeling position beside her. He placed his hand over her mouth and again inserted his finger into her vagina. Meanwhile, Virginia pried defendant’s hand away from her mouth, and he hit her in the face. She rolled to the other side of the bed, tried to kick defendant, and again dislodged his finger from her vagina. This second penetration lasted approximately five seconds. “Virginia then stood up and started to run for the door. Defendant grabbed her by the hair, pulled her towards him, and punched her in the throat. He then inserted his finger into her vagina a third time. . . . The third penetration lasted approximately five seconds, . . .” (People v. Harrison, supra, 48 Cal.3d at pp. 325-326.) The California Supreme Court held these three insertions represented three distinct acts of coerced sexual conduct and justified three separate consecutive sentences under section 667.6. The court emphasized defendant mounted three separate attacks on the victim. Each involved a decision to go *605 after the victim, in the second attack to force her into a new position on the bed and in the third to follow her to a new location and recapture her. In all three attacks, the defendant struck the victim and then overcome her resistance again before once again inserting his fingers in her vagina. So there were three separate struggles with the perpetrator and victim in different positions and at different locations, each culminating in a successful insertion of defendant’s fingers into the victim’s vagina. True, the trial court considered each of these separate assaults as a separate offense and imposed a consecutive sentence on each. But the trial court did not treat any unsuccessful attempts at insertion which might have occurred during the three separate struggles as additional offenses justifying consecutive sentences. In contrast, the instant case involves a single continuous—and eventually successful—attempt to rape this victim, rather than the three separate successful digital assaults the Harrison opinion describes. The sole evidence about these “eight or nine” penal insertions came in the testimony of Jamie S., the thirteen-year-old victim. In this testimony, she first recounts how appellant, although unarmed, used threats to compel her to accompany him on a meandering walk which ended under some stairs in an apartment complex. The questioning continued: “Q Then what happened, Jamie? “A Then he told me to get on my hands and knees. “Q Did you? “A Yes. “Q Where were your knees? “A On the ground. “Q Where were your hands? “A On the ground. “Q Where was he? “A In the back of me. “Q What did he do? *606 “A I turned around and I looked, and he was—he was—I turned around, and he was unbuttoning his pants. “Q When you say you turned around, did your body remain in that position of all fours? “A Yes. “Q You saw him unbuttoning his pants? “A Yes. “Q What happened? “A Then he got down. “Q Was he behind you? “A Yes. “Q What happened, Jamie? “A He tried to put it in me. “Q When you say he tried to put it in you, could you feel his penis? “A Yes. “Q Where—What part of your body did you feel his penis? “A In my private. “Q Do you know the name for that private? “A My vagina. “Q Did his penis go inside your vagina? “A It went in and kept coming out. “Q Why did it keep coming out? “A Because I was moving, and he was hurting me. “Q Slow down. You said you felt his penis go inside your vagina? *607 “A Yes. “Q Did it come out? “A Yes. “Q Then what happened? “A He told me to stop moving or he’ll kill me. “Q Did his penis go back inside your vagina? “A Yes. “Q Can you—Did you keep moving? “A Yes. “Q Did his penis go outside your vagina? “A Yes. “Q Did he put his penis back inside your vagina? “A Yes. “Q Did you keep moving? “A Yes. [Leading question objection is made and overruled.] “Q Did his penis go outside of your vagina? “A Yes. “Q Did he put his penis back inside your vagina? “A Yes. He did it around eight or nine times. “Q Each time you would struggle and his penis would leave your vagina? “A Yes. Once he tried to put it in my butt. “Q Did you feel it? *608 “A Yes “Q Where exactly? Where did you feel it? “A In my butt. “Q Then what happened? “A He took it out and he put it back in my vagina. And at that time he went all the way in. “Q Please sit down. When his penis went inside your vagina that last time, what happened? “Q He kept moving back and forth. “A Did you feel anything? “Q Hurt. He was hurting me.” (Italics added.) Later, during redirect examination the prosecutor elicited testimony underscoring the fact appellant and victim remained in the same position as well as at the same location during appellant’s several unsuccessful attempts to successfully penetrate the victim. “Q Now, Jamie, when you were being raped underneath the staircase on the morning of April 17th, did you and the defendant remain in exactly the same position during that entire time that you were there? “A Yes.” There are striking contrasts between the sequence of events Jamie S. reports in this case and the facts the Supreme Court described in Harrison . Here the “eight or nine” attempted insertions all took place at the same location and in an uninterrupted sequence while perpetrator and victim remained in the exact same position. Moreover, in contrast with Harrison, none of these subsequent attempted insertions was accompanied by a new act of violence or a change of position or location. These are the very factors the Supreme Court held were crucial to the outcome in Harrison . In announcing its holding as to what constitutes a separate crime, the high court said, “We hold that each of the digital penetrations committed in the course of defendant’s assault upon Virginia N., and highlighted by intervening acts of force, constituted a separate *609 violation. . . .” (People v. Harrison, supra, 48 Cal.3d 321, 334 , italics added.) Then, in announcing its holding on the issue whether these separate crimes could be punished with consecutive sentences, the Supreme Court said, “[T]here is no legal or logical bar to separate punishment where, as here, each of defendant’s ‘repenetrations’ was clearly volitional, criminal and occasioned by separate acts of force. [Italics in original.] . . . Whether defendant ends a break in the activity by renewing the same sex act (as here) or by switching to a new one [citation], the result under section 654 is the same.” (Id. at p. 338, italics added.) In the instant case, there was no “break in the activity” as there was in Harrison . The victim did not break away from the perpetrator so that he had to decide whether to pursue her and “renew” or “resume” the activity. In this case, the activity was not renewed or resumed, because it had not been terminated or broken. Instead the activity was continuous at the same location and in the same position—from the first penetration until the eighth or ninth, and successful, one. Nor was there an “intervening act of force,” the kind of beating, hair-pulling, and punching the Supreme Court stressed happened in Harrison after each break in the action when the perpetrator decided to renew or resume the activity. In the instant case, the only force involved was the normal thrust of appellant’s penis attempting to penetrate the victim’s vagina. A “break in the action” affords the perpetrator the opportunity to rethink whether to renew his sexual attack. So there is some logic in viewing the renewed attack as a separate volitional act constituting a new crime and warranting separate punishment Likewise if the renewal of the attack involves some new act of violence there is a logical reason to consider it a separate crime warranting separate punishment. But when, as here, there is no “break in the activity” the perpetrator has no occasion to make a new decision whether to resume the activity. The only “decision” is the ongoing decision to continue the activity, which is present during any continuous criminal activity of any significant duration and has never been thought to form the basis for a separate crime or punishment. What happened here is a far cry from a situation where a defendant is in the middle of a successful act of coerced intercourse with a victim when she breaks free and flees to another part of the bed or another part of the room. He pursues, overcomes her again and forces his penis into her vagina a second time. And then she breaks free again, and the scenario is repeated again, and again, and again, and again, and again, and yet again. Eight separate rapes, eight separate uses of force or fear to overcome the victim’s resistance at eight separate locations. Under Harrison , such a scenario *610 presumably would warrant eight consecutive sentences. But that kind of sentence is not warranted by eight unsuccessful attempts at a single successful insertion, all attempts taking place at a single location and during a single continuous process. Nothing in Harrison suggests it is. The definition of the crime of rape states a “sexual penetration, however slight, is sufficient to complete the crime.” (§ 263.) Thus, one might argue each unsuccessful attempt at effective insertion itself constitutes a separate act of rape, since presumably each involves a “slight penetration” of the victim’s sexual organs. But this argument proves too much. (Or, one might even say it “penetrates too far.”) The real question is: once there has been an initial penetration, slight as it might be, which is “sufficient to complete the crime,” are subsequent penetrations which are part of the same sequence to be considered brand new crimes? Or are they to be considered a continuation of the already completed crime? If one indeed is to consider each penile penetration a separate crime, there is no reason not to construe each penile thrust in a typical rape as a separate penetration and thus a separate act of rape (and thus separately punishable, according to the rationale of the majority). After all, each such thrust obviously involves a separate “sexual penetration, however slight” of the woman’s sexual organs. Indeed at a microscopic level, each individual thrust will “penetrate” some new and different part of those organs. Thus, if we are to interpret section 263 as authorizing a consecutive sentence for each and every “sexual penetration,” an ordinary rape will justify the piling on of scores and sometimes hundreds of consecutive eight-year sentences. Yet no court has suggested section 667.6 can be interpreted to separately punish every penetration where the penetration begins inside the vagina, presumably because, as suggested above, all these penetrations are considered a part of a single crime. Similarly, there is no reason to separately punish every penetration which happens to begin outside the vagina, where it is part of a single sexual act. As section 263 says, the crime is “complete” when the initial “sexual penetration, however slight” occurs. The remaining penetrations—whether slight or deep, whether they begin outside the vagina or within—are simply a part of that already completed crime. As such, those penetrations of the victim’s vagina, however few or numerous, should be punished as a single crime—not as a series of crimes. It is not the depth or frequency of penetrations that determines the number of crimes of rape which have occurred. As section 263 itself explains, “The essential guilt of rape consists of the outrage to the person and feelings of the victim of the rape.” That outrage and those feelings are experienced with *611 the initial coerced “sexual penetration, however slight.” The outrage and other feelings do not become eightfold worse because it takes “eight or nine” slight sexual penetrations during a continuous, ongoing assault before the assailant manages to achieve a full penetration. Forced penetrations which start within the victim’s sexual organs can produce just as much outrage to the personal feelings of the victim as do those originating outside the body. (Indeed Jamie S. complained the thrusts occurring after the successful insertion “hurt, he was hurting me” at least as much as she did about the previous unsuccessful attempts.) Nor is the assailant’s conduct eight times worse than if he had succeeded with his first thrust—either through luck or by force or threatened violence. Accordingly, in my view there is no rational reason for imposing a separate consecutive sentence for each of the individual slight sexual penetrations that were part of this single crime of rape. Had the victim broken free and fled to another location and appellant then renewed his attack, I would see it as a new crime subject to a new consecutive sentence, consistent with People v. Harrison . But the sequence of sexual thrusts which take place during a single, continuous assault with the perpetrator and victim in the same position and at the same location remain indivisible parts of a single crime and punishable only once with a single sentence, not with individual consecutive sentences for each sexual thrust. I further note section 667.6 punishes individual violations of section 220, which is the sexual assault statute, rather than individual violations of the rape statute itself. It stretches the meaning of assault to suggest each sexual thnist which happens to begin outside the woman’s sexual organs during a single continuous coerced intercourse at the same location and while the parties are in the very same position constitutes a separate assault and therefore that each such thrust can serve as the predicate for a separate consecutive sentence. By giving section 667.6 the sensible interpretation suggested in this dissent, I also avoid serious constitutional questions this sentence otherwise raises under the equal protection and cruel and unusual punishment sections of the United States and California Constitutions. (See, e.g., In re Lynch (1972) 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ] [under California Constitution, sentences must be reasonably proportionate to seriousness of offenses and punishment imposed on comparable offenses and offenders]; People v. Keogh (1975) 46 Cal.App.3d 919 [ 120 Cal.Rptr. 817 ] [cruel and unusual punishment to aggregate consecutive sentences for series of forged checks to produce life-maximum sentence]; Annot., Length of Sentence as Violation of Constitutional Provisions Prohibiting Cruel and Unusual Punishment (1970) 33 A.L.R.3d 335 ; In re Rodriguez (1975) 14 Cal.3d 639 [ 122 *612 Cal.Rptr. 552 , 537 P.2d 384 ] [disproportionate sentence may violate equal protection clause].) As discussed earlier in this dissent, the severe, compound sentence the trial court imposed in this case is based on criteria which bear no relationship either to appellant’s relative culpability, dangerousness, or the harm he inflicted compared to other rapists. As a consequence, the sentence is highly suspect under Lynch and like cases interpreting the cruel and unusual punishment or equal protection clauses. For all these reasons, I would modify the sentence to reduce appellant’s term from one hundred seven years to fifty-one years by staying seven of the eight consecutive eight-year terms the trial court imposed for the rape of Jamie S. Appellant’s petition for review by the Supreme Court was denied January 5, 1995. Mosk, J., was of the opinion that the petition should be granted. Unless otherwise indicated, all future references are to the Penal Code. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747879. Public record. Not legal advice.