Guilty of Sexual Assault During Robbery Without Participating ?

Some cases illustrate that argument that a person must actively participate in a sexual offense or intend the sexual offense be committed before being subject to an enhanced penalty is incorrect. In People v. Nguyen (1993) 21 Cal. App. 4th 518, a case decidedunder Penal Code section 289, the defendants were convicted of genital penetration with a foreign object based on a theory of aiding and abetting a robbery. The defendants argued they could not be guilty of the sexual offense because they did not participate in the sexual assault and a sexual assault is not a natural and probable consequence of robbery. In rejecting this argument, the court held that section 31 imposes liability upon all persons "concerned" with the commission of a crime, without assessment of the degree of involvement, as long as the crime was the natural and foreseeable consequence of the intended crime. (Id. at pp. 529-530). The Nguyen court concluded that, even if the defendants were not the actual perpetrators of the sexual offense, it was sufficiently foreseeable that a sexual assault was possible, "yet defendants continued to lend their aid and assistance to the endeavor. Under these circumstances it will not do for defendants to assert that they were concerned only with robbery and bear no responsibility for the sexual assault." (Id. at p. 534). People v. Farr (1997) 54 Cal. App. 4th 835, rejected the requirement of personal participation in a sexual assault when it applied the section 667.6 sentencing scheme. There the defendants committed a home invasion robbery. During the robbery they engaged in several sexual assaults and forced the victims to engage in sexual acts with each other. They were sentenced to three consecutive life sentences under section 667.6, subdivision (d). On appeal, they argued they were not subject to mandatory consecutive sentencing under section 667.6 because they did not personally commit all of the sexual assaults. the Farr court rejected their argument and concluded that the section 667.6, subdivision (d) sentencing scheme applied whether or not the accused personally committed the offense. (People v. Farr, supra, 54 Cal. App. 4th at p. 845). "The Legislature has established an elaborate sentencing scheme that prescribes terms of imprisonment for enumerated offenses . . . . None of the foregoing sentencing schemes have been construed to require the accused personally commit the offense in order to be subject to the specified sentences." (Ibid). The Farr court reasoned that an inconsistency would arise if it concluded a defendant had to personally engage in the sexual assault since one of the enumerated offenses specified in section 667.6, subdivision (c) is rape in concert ( 264.1), which includes persons who aid and abet and does not require the defendant to actively participate. (Ibid.; 667.6 subd. (c)(3), 264.1). Like section 667.6, section 667.61 is a sentencing scheme. It applies when a defendant is convicted of an enumerated sexual offense. The language of section 667.61 is unambiguous; it does not distinguish between a perpetrator and an aider and abettor. If we found the statute only applied to a defendant who actively participated in a sexual assault or intended the sexual assault, we would create a conflict in the statute because one of the enumerated offenses specified in section 667.61, subdivision (c)(3) is rape in concert, which expressly includes aiders and abettors and does not require active participation on their part. ( 667.61 subd. (c)(3), 264.1; cf. People v. Farr, supra, 54 Cal. App. 4th at p. 845). Therefore, aiders and abettors, even those who did not actively participate in a sexual assault, may be sentenced under section 667.61. the trial court's imposition of the sentence was correct. "Single occasion" in section 667.61 is not a synonym for "separate occasion" in section 667.6. Section 667.61, subdivision (g) limits the number of life sentences that may be imposed upon a defendant. (People v. Murphy (1998) 65 Cal. App. 4th 35, 40). The subdivision provides in part: "The term specified in subdivision (a) . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6 . . . ." the phrase "single occasion," however, is not defined by section 667.61. The trial court compared the term "single occasion" found in section 667.61 to the term "separate occasion" found in section 667.6. Under section 667.6, subdivision (d) a "separate occasion" for each assault is established whenever "the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior." ( 667.6, subd. (d)). The trial court determined that each offense had occurred on a "separate occasion" as defined by section 667.6, and therefore there were three "single occasions" under section 667.61. Based on this analysis, the court imposed three 25-year-to-life sentences. the trial court also concluded section 667.61 permitted the imposition of only a single life sentence and therefore ordered the three sentences run concurrently. Defendant argues section 667.61, subdivision (a) permits the imposition of only one 25-year-to-life term for sex offenses committed against one victim on a "single occasion." He contends the court erred by construing "single occasion" found in section 667.61 as synonymous with "separate occasion" found in section 667.6, subdivision (d). Using familiar principles of statutory construction, we conclude defendant's argument has merit. In ordinary parlance, an "occasion" may be defined as a particular, momentary point in time, or an event or episode of any duration." (Webster's New Internat. Dict. (3d ed. 1961) p. 1560; People v. Craft (1986) 41 Cal. 3d 554, 560, 224 Cal. Rptr. 626, 715 P.2d 585 "occasion" may mean "a particular time at which something takes place," a "special event" and an "episode".) It may also be defined as a period of time in which an opportunity of some kind exists. (Ibid. "occasion" may mean "opportunity"). A comparison of the language of sections 667.6 and 667.61 leads us to the conclusion that "single occasion" in section 667.61 is not equivalent to the term "separate occasion" as it appears in section 667.6. the Legislature directly referenced section 667.6 when it enacted section 667.61, yet it did not indicate that determining whether there was a "single occasion" under section 667.61 would be dependent on whether there were no "separate occasions" under 667.6. The proposition that the phrases have different meanings is also supported by the language found in section 667.61, subdivision (g). The part of subdivision (g) which states, "The term specified in subdivision (a) . . . shall be imposed on the defendant once . . . . Terms for other offenses committed . . . shall be imposed as authorized under any other law, including Section 667.6, if applicable", expressly distinguishes between a One Strike term and possible additional terms, including terms under section 667.6. This reference to would be meaningless if "single occasion" were interpreted to occur only when there could be no "separate occasions." Were we to interpret section 667.61 subdivision (g) so as to permit the imposition of more than one life term, both the provision for the imposition of additional terms and the word "once" would become meaningless. Statutes must be interpreted so as to effectuate all the words in the statute. (Loyola Marymount University v. Los Angeles Unified School Dist. (1996) 45 Cal. App. 4th 1256, 1261). A construction that makes some words surplusage must be avoided. (Ibid). "Single occasion" should therefore be given its ordinary, commonly understood meaning. A defendant may only be subjected to one 25-year-to-life term per victim when the sexual offenses are perpetrated on a single victim during a particular, discrete episode.