People v. Bernabe

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Bernardino County No. FWV21002862, Michael Knish, Judge. Affirmed in part, vacated in part, and remanded for resentencing.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn, and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and Respondent.

DO, J.

INTRODUCTION

Felipe Bernabe was arrested after two different women accused him of raping, burning, and beating them and forcing them to orally copulate him. Both sexual assaults were alleged to have occurred in Rialto within six days of each other.

As to Jane Doe, the San Bernardino County District Attorney charged Bernabe with assault with intent to commit felony rape, sodomy, or forced oral copulation (Pen. Code^[1], § 220, subd. (a)(1); count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); torture (§ 206; count 3); assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 4); forcible oral copulation (§ 287, subd. (c)(2)(A); count 5); and forcible rape (§ 261, subd. (a)(2); count 6). Attached to count 4 was an allegation he personally inflicted great bodily injury on Doe (§ 12022.7, subd. (a)) and to counts 5 and 6 an allegation of torture as to Doe. Bernabe was also similarly charged with multiple crimes stemming from the alleged attack of Jane Doe 2.

For his crimes against Doe, the jury convicted Bernabe of counts 1, and 3 through 6 and deadlocked on count 2. It found true the allegations of personal infliction of great bodily injury and torture on Doe. As to Doe 2, the jury deadlocked on all counts, and thus found not true the allegation of multiple victims (§ 667.61, subd. (a) and (e)). The trial court sentenced Bernabe to a total of six years plus 50 years to life in prison.

Bernabe asserts three contentions of error on appeal. First, he argues the trial court violated his state and federal due process rights by instructing the jury that it could consider the victims' level of certainty in weighing the

accuracy of their identification of him. Second, he contends the record lacks sufficient evidence of torture to support his conviction on count 3 and the special allegations of torture in counts 5 and 6. Finally, he asserts the court abused its sentencing discretion because it erroneously imposed a consecutive term on count 4 after confusing that count's factual basis with that of count 2, and otherwise failed to exercise its newly created sentencing discretion under section 654 as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518).

We agree with the Attorney General's concession that the trial court erred in sentencing Bernabe on count 4. We thus find it appropriate to vacate his sentence and remand for resentencing. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Doe's Testimony

On the evening of July 24, 2021, Doe was walking by a gas station in Rialto when she encountered Bernabe. She believed she had met him once before about a year earlier. They spoke and then walked toward his apartment.

Bernabe was nice but was "talking all kinds of weirdness." He then invited Doe into the garage adjacent to his apartment building. They entered through a pedestrian door, and then he put something in front of the door to block it. It was dark but they talked inside the garage for about half an hour. He did most of the talking and talked about "all kinds of crazy stuff."

Bernabe then punched Doe hard on the left side of her face with a closed fist and told her to orally copulate him. She complied because she was afraid. He told her to "[d]o it like you mean it" and punched her again. After

copulating him for about a minute, she became dehydrated and asked if she could get some water. He instructed her to take off her clothes and walk about 30 feet out from the garage door to get water from a hose. Although he stayed in the garage and it was dark, she did not run away at that point because she was naked. Instead, she returned to the garage, and Bernabe allowed her to get dressed.

Bernabe used a "torch" to light a drug pipe and offered Doe a hit, but she declined. After he took two hits, they left the garage and walked to his mother's car in front of the garage and got into the backseat. He resumed smoking his pipe. He then said something about "[b]itches like you," grabbed an iPad, and tried to hit Doe in the face with it. She blocked the blow but then he burned her on both of her upper arms using his torch and the mouth area of his drug pipe. She screamed and tried to get out of the car. In response, he punched her in the chest and closed the car door.

At that point, Bernabe told Doe to take her pants off and she complied, again, because she "didn't want him to harm [her]." He took his pants off and they had vaginal intercourse for three to five minutes even though she did not want to. When he finished, he said, "You're lucky you had sex with me." She slept in his car that night with Bernabe standing outside watching her the entire night. She did not report the assault.

On July 30, 2021, a law enforcement officer stopped Doe and her friend, Juan C., to ask Doe who gave her the bruises and burn marks that were still visible.^[2] She told the officer how she got them and that a man named

"Phillip" had caused her injuries. She was reluctant to talk to the officer because she did not want to get Bernabe in trouble.

The officer recognized Doe's description of the perpetrator and location from the investigation of the attack on Doe 2 earlier in the same day. When he showed Doe a satellite view of the house and garage on his phone, she said it was the correct location. The officer told Doe to go to the hospital, which she did, but she left before being examined.

During a subsequent interview, Doe described the suspect as "Black, Puerto Rican, [or] Mexican with . . . light skin about 36 to 37 years old, 5' 3", 200 pounds with a stocky build." The officer read her an admonishment about eyewitness identifications and gave her a stack of six photographs to review. She looked at the first photograph, then turned to the second one and said, "Yeah. Him." The officer asked how positive she was about the identification, and she responded that she was 100 percent sure. She did not want to look at any more of the photographs after choosing the second photograph. The interview was video recorded, and the jury viewed it during trial.

At trial, the prosecutor asked Doe if she saw the man she met on July 24 in court. Doe requested that Bernabe be directed to remove his mask (which he was wearing due to the COVID-19 pandemic). When he did, she testified, "No. That's not him." Later, when asked to describe the person who attacked her, she said he was "Mexican" and "had braids."^[3]

The prosecutor circled back to the identification question. Doe, who was crying, admitted she was nervous in court. The prosecutor asked again, "Do you remember the person who did this to you?" Doe responded, "Yes." But when the prosecutor followed up with, "Do you see the person in court who did this to you?" Doe responded, "No." As the reporter's transcript reflects, both counsel and the court were struggling to hear and understand Doe's testimony. For that reason, the court allowed the prosecutor to ask the question again. The prosecutor asked, "[D]o you remember who did this to you?" and Doe said, "Yes." In response to whether that person was in court, Doe testified, "Yes" again, pointed to Bernabe, and explained he was wearing white. She then confirmed that the photograph she selected previously was the person who attacked her and that she had been 100 percent sure of her identification at the time. The prosecutor requested that she look at the photograph in court and asked if she was "100 percent sure that the person in that picture is the person who did this to you?" Doe said, "Yes." When asked if anyone in the courtroom appeared to be the person in the photograph, she pointed to Bernabe.

The next trial day, Doe explained that Bernabe looked different in court than he had when he attacked her because he no longer had braids.^[4] She also testified that it was hard to look at Bernabe "[b]ecause [of the] trauma to see somebody that did this to me" and explained that was part of the reason she had difficulty identifying him in court.

II.

Doe 2's Testimony

The alleged attack on Doe 2 occurred six days after the attack on Doe, at around 11:00 a.m. on July 30, 2021, in a Rialto cemetery. Doe 2 testified that a man walked up to her and asked if she would go with him to visit his mother's grave. She agreed, and they walked across the cemetery and sat down. He pulled out a three- or four-inch long glass drug pipe with a bulb at the end and told her he wanted her to smoke it. When she said no, he burned her leg with the part of the pipe "that looks more like a stick" with a hole in it. He told her that if she did not "hit it" he would burn her face, so she took a hit.

The man then grabbed her by her hair, yanked her over to a locked gate, broke the gate open with a wrench-like tool, and shoved her into an adobe house located in the cemetery. She "tried everything [she] could to get out the door" and, in response, he beat her 12 to 15 times with a broom. She said she did not scream because he told her he would kill her if she screamed. Eventually, he knocked her to the floor, at which point he said he would stick the broom inside her if she did not stop.

She...