P. v. Duenas

Filed 6/18/19 P. v. Duenas CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CUTHBERT EMANUEL DUENAS,
Defendant and Appellant.
B288392
(Los Angeles County
Super. Ct. No. KA088870)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Peter A. Hernandez, Judge. Affirmed and
remanded with directions.
Edward H. Schulman, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Margaret E. Maxwell and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.

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Over the course of more than 18 hours, defendant
Cuthbert E. Duenas raped Veronica twice, beat her numerous
times, and kidnapped her with the intent to rape her. On appeal,
defendant does not challenge the convictions. He argues that his
sentence must be modified because Penal Code1 section 654 bars
multiple punishments for his crimes. We conclude the record
supports the trial court’s implicit finding that defendant harbored
separate objectives as that phrase is used for purposes of
section 654. Because defendant harbored separate objectives, the
trial court properly sentenced him to multiple punishments for
the various crimes.
Defendant additionally requests this court retroactively
apply section 1001.36, effective June 27, 2018 and amended
effective January 1, 2019. His crimes occurred in 2009, long
before this statute was enacted. Our Supreme Court has granted
review to determine whether section 1001.36 applies
retroactively. (People v. Frahs (2018) 27 Cal.App.5th 784,
review granted December 27, 2018, S252220.)
We need not decide whether the statute is retroactive
because having committed rape, defendant is not eligible for the
mental diversion program under the statute even if it were to
apply to him retroactively. We reject defendant’s argument that
applying the current statute to him violates the ex post facto law;
defendant was subject to the same punishment when he
committed his offenses as under the current statute.
Finally, the parties agree that the case must be remanded
for the trial court to recalculate defendant’s custody credits. We
affirm and remand with directions.
1 All statutory citations are to the Penal Code.

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FACTUAL BACKGROUND
We summarize only those facts relevant to the issues
defendant raises on appeal.
Veronica met defendant in the beginning of
November 2009. On November 28, 2009, Veronica and
defendant arranged to meet at a restaurant. When they arrived
at the restaurant, at approximately 7:00 p.m., they decided to
proceed to Universal Studios in defendant’s car. Veronica left her
car at the restaurant.
1. Defendant Rapes Veronica in a Parking Lot
When they arrived at Universal Studios, defendant parked
his car and moved from the driver seat to the back seat of the car.
Defendant pulled Veronica through the console to the back seat of
the car. Defendant held Veronica and pulled down her pants,
using force. Veronica pushed defendant and told him that she
did not want to have sex with him. Defendant inserted his penis
in Veronica’s vagina against her will.
2. Defendant and Veronica Visit Universal Studios
Veronica chose to forgive defendant and continue with their
visit to Universal Studios. As they left Universal Studios,
defendant warned Veronica not to scream, not to do anything,
and to look only at him. Defendant warned Veronica that he
could kill her if she “[did] something.”
3. Defendant Attempts To Take Veronica to a Motel
Veronica and defendant returned to defendant’s car in the
Universal Studio’s parking lot. Veronica understood that
defendant would drive her back to the restaurant where her car
was located. Instead, defendant drove Veronica to a motel and

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told her he wanted to spend the night with her. Veronica refused
but defendant ignored her, parking at the Valley Motel.
Veronica walked away from the motel and hailed a taxi.
Defendant followed her into the taxi. The taxi driver drove
Veronica and defendant to Veronica’s car. When they arrived at
Veronica’s car, it was approximately 2:00 a.m. or 3:00 a.m.
4. Veronica Drives Defendant to the Valley Motel and
Defendant Assaults Her
Defendant asked Veronica to drive him back to his car, and
Veronica agreed. When they arrived at the motel, defendant
refused to exit Veronica’s car. When he finally exited, defendant
ran around the car, opened the driver’s door, and grabbed
Veronica. Defendant hit Veronica’s face and pulled her hair.
Defendant used his fists to hit Veronica. Veronica yelled for help,
but no one assisted her. Defendant told the bystanders that
Veronica was drunk.
5. Defendant Kidnaps and Repeatedly Assaults
Veronica
Defendant dragged Veronica into his car. Once inside, he
beat her. Veronica tried to open the door to get out, but
defendant accelerated and drove away. Defendant grabbed
Veronica’s hair and pounded her face into the console, causing
her nose to bleed. Veronica cried as defendant drove her.
Defendant stopped to purchase gas, but when he observed
Veronica try to exit the car, he returned to the car and drove
away from the gas station. Veronica tried to jump out of the car,
and the door to the car slammed on her leg. Veronica’s right foot
dangled outside the door, and she lost all feeling in it. She felt
severe pain in her knee. Veronica asked defendant to drive her to

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the hospital, but he refused, stating that he “would get into
trouble.” Veronica cried, and defendant said “That’s good. That’s
what you deserve.”
6. Defendant Takes Veronica to His Apartment
Defendant drove Veronica to his apartment. Prior to
arriving at his apartment, defendant used a tire iron to loosen
the passenger door of his car to permit Veronica to remove her
foot. Veronica’s entire body hurt from the beatings. She had no
feeling in her leg.
Once at his apartment, defendant dragged Veronica up the
stairs. Defendant took Veronica into his room and “threw” her on
his mattress.
Defendant changed his clothes. Defendant threated to beat
Veronica if she failed to remain quiet. He threatened her a
second time, warning her not to say anything to anyone inside
the apartment. Veronica repeatedly requested defendant take
her to the hospital, and each time defendant refused.
Veronica asked Delores T., who lived in the same
apartment as defendant to call the police. Veronica did not say
the words aloud but “mouth[ed]” them. Defendant threatened to
kill Delores if she called the police. Delores heard Veronica
scream and heard Veronica say that defendant was “hurting” her.
Delores observed that Veronica’s foot appeared broken, a patch of
hair was missing, and her eye was bruised. Delores called the
police after defendant and Veronica left the apartment.
7. Defendant Drives Veronica to the Lincoln Motel and
Rapes Her
After visiting his apartment, defendant pulled Veronica to
his car and threatened her if she screamed. Defendant drove

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Veronica to the Lincoln Motel. Defendant and Veronica were at
the Lincoln Motel from 6:30 a.m. to 11:00 a.m. on November 29,
2009. Veronica was in pain and her knee was swollen. She was
no longer able to talk.
Veronica could not stand, and defendant carried Veronica
into a motel room. He placed her on a bed. Defendant told
Veronica he would not take her to the hospital; instead he would
“treat” her.
Defendant removed Veronica’s shoes and pants, using force.
Defendant resisted Veronica’s efforts to push him away.
Defendant forcefully separated Veronica’s legs. Defendant
inserted his penis in her vagina.2
After raping Veronica, defendant carried her from the
motel room and placed her in his car. Veronica felt faint.
Defendant drove to a junkyard to look for a new door to his car.
A worker in the junkyard called the police.
Police arrived at approximately 1:30 p.m. on
November 29, 2009. This was more than 10 hours after
defendant forced Veronica in his car and more than 18 hours
after they commenced their evening together. Veronica told the
police that she was afraid that defendant might kill her.
8. Veronica Suffers Numerous Injuries
An emergency room physician observed that Veronica had
bruises and bite marks. She had bald patches on her head and
bleeding from one eye. Her cheek bone was tender. Her right
knee and ankle were swollen. Her right femur bone and right
2 Veronica testified that defendant inserted his finger in
her vagina. Jurors found defendant not guilty of sexual
penetration by a foreign object.

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ankle bone were fractured. Metatarsal bones on Veronica’s left
foot were fractured. Veronica required surgery on one knee.
Subsequent tests showed that defendant’s sperm was in
Veronica’s vagina.
PROCEDURAL BACKGROUND
In an amended information, defendant was charged with
two counts of forcible rape, kidnapping to commit rape, assault
by means likely to produce great bodily injury, and sexual
penetration by a foreign object. With respect to the kidnapping
and the assault, the People alleged that defendant inflicted
great bodily injury within the meaning of section 12022.7,
subdivision (a). The People further alleged that defendant
suffered a prior conviction within the meaning of section 667.5.
Defendant pled not guilty and not guilty by reason of
insanity. The trial court twice found defendant not competent to
stand trial and twice suspended the criminal proceedings. As a
result, defendant spent substantial time before trial at
Patton State Hospital.
At trial, defendant did not testify. Two witnesses testified
in his defense, and both testified that defendant suffered
from schizoaffective disorder. During closing argument,
defense counsel admitted that defendant kidnapped Veronica
and assaulted her causing great bodily injury.
The prosecutor argued the first rape occurred in the
parking lot at Universal Studios. The second count of rape
occurred at the Lincoln Motel. With respect to the kidnapping,
the prosecutor argued that defendant moved Veronica multiple
places. He could have raped her in the car without moving her.
The prosecutor argued that the kidnapping started at the
Valley Motel when defendant forced Veronica into his car. “[A]t

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that point . . . she was no longer consenting to go with him, and
he was taking her by force.”
With respect to the assault, the prosecutor argued that
defendant punched Veronica, pulled her hair, and drove the car
in a manner that the door slammed on her legs. The prosecutor
argued that the jurors had to unanimously agree on which act
constituted the assault. The prosecutor reiterated that after
defendant forced Veronica into his car, he punched her head and
pulled her hair.
Jurors convicted defendant of all counts except sexual
penetration by a foreign object. Jurors found the great bodily
injury enhancements true. Defendant admitted the prior offense.
In the second portion of the jury trial, jurors heard
testimony concerning whether defendant was sane at the time he
committed the offenses. Jurors found that defendant was sane at
the time of the offenses. Defendant does not challenge this
finding on appeal.
The trial court sentenced defendant to the upper term of
eight years for each count of rape. The court found the two rapes
occurred on separate occasions. The court ordered the sentences
to run consecutively. The court added a consecutive one year
determinate term for the assault. The court added three years
for one great bodily injury enhancement and stayed the second
great bodily injury enhancement. The court added one year for
the section 667.5 prior prison term. The total determinate term
was 21 years. Subsequently, the court reduced the sentence to 18
years after it received a letter from the Department of
Corrections indicating that the three-year sentence for the great
bodily injury enhancement was erroneous.

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With respect to the kidnapping to commit rape charge, the
trial court sentenced defendant to a consecutive indeterminate
term of life. Defendant timely appealed.
DISCUSSION
A. Defendant Demonstrates No Error Under Section 654
Defendant argues that his sentence for the second rape and
for the assault must be stayed pursuant to section 654.3 That
statute provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall
be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654,
subd. (a).) “Section 654 precludes multiple punishments for a
single act or indivisible course of conduct.” (People v. Hester
(2000) 22 Cal.4th 290, 294.) “ ‘[T]he purpose of section 654 “is to
insure that a defendant’s punishment will be commensurate with
his culpability.” ’ ” (People v. Capistrano (2014) 59 Cal.4th 830,
886, disapproved on another ground by People v. Hardy (2018)
5 Cal.5th 56, 104.)
“Under section 654, ‘a course of conduct divisible in time,
although directed to one objective, may give rise to multiple
violations and punishment. [Citations.]’ [Citations.] This is
particularly so where the offenses are temporally separated in
such a way as to afford the defendant opportunity to reflect and
to renew his or her intent before committing the next one.”
3 The failure to object in the trial court does not forfeit the
issue on appeal. (People v. McCoy (2012) 208 Cal.App.4th 1333,
1338.)

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(People v. Gaio (2000) 81 Cal.App.4th 919, 935.) People v. Hicks
(2017) 17 Cal.App.5th 496 recently reaffirmed this principle.
“Whether a defendant harbored a separate intent and
objective for each offense is a factual determination for the trial
court, and its conclusion will be sustained on appeal if
supported by substantial evidence. [Citation.] On review of this
issue, we consider the evidence in the light most favorable to
the judgment.” (People v. Hicks, supra, 17 Cal.App.5th at
pp. 514–515.) “ ‘A trial court’s implied finding that a defendant
harbored a separate intent and objective for each offense
will be upheld on appeal if it is supported by substantial
evidence.’ ” (People v. Racy (2007) 148 Cal.App.4th 1327,
1336–1337.)4
1. Section 654 does not bar multiple punishment
for aggravated kidnapping and rape
The offenses of kidnapping Veronica at the Valley Motel
and raping her at the Lincoln Motel were “temporally separated
in such a way as to afford the defendant opportunity to reflect
and to renew his or her intent before committing the next one.”
(People v. Gaio, supra, 81 Cal.App.4th at p. 935.) After forcing
4 Barring circumstances foreclosing the trial court from
considering all the evidence, “a trial court may base its decision
under section 654 on any of the facts that are in evidence at trial,
without regard to the verdicts.” (People v. McCoy, supra,
208 Cal.App.4th at p. 1340.) A trial court may even rely on
evidence excluded from trial. (People v. Racy, supra,
148 Cal.App.4th at p. 1337.) However, the manner the case
is charged and tried may bar the trial court from considering
all the evidence. (People v. Roberson (1988) 198 Cal.App.3d 860,
870–871.) Defendant identifies no evidence the trial court was
precluded from considering.

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Veronica into his car, defendant then drove Veronica to his
apartment, carried her up the stairs, and threw her on the
mattress. Defendant spent enough time in his apartment to
change his clothing, threaten Delores, and drag Veronica back
to his car. Then he drove her from his apartment to the
Lincoln Motel. Defendant did not check into the Lincoln Motel
until 6:30 a.m., more than three hours after he kidnapped her.
Moreover, defendant’s threats to Veronica and to Delores support
the fact that he renewed his intent to rape her; he threatened
Veronica and Delores to make sure he could effectuate his intent
to rape Veronica even though she was badly injured. Defendant
then renewed his intent when he drove Veronica to the Lincoln
Motel instead of driving her to the hospital as she repeatedly
requested. In short, the record supported the trial court’s implicit
conclusion that defendant harbored separate intents for the
kidnapping and the rape. (See People v. Clair (2011) 197
Cal.App.4th 949, 960 [sending e-mails 10 and 20 minutes apart
allowed the defendant an opportunity to reflect and renew his
intent to commit another crime].)
Contrary to defendant’s argument, People v. Latimer (1993)
5 Cal.4th 1203, 1211 (Latimer) does not compel a different result.
In Latimer, the defendant kidnapped his victim, drove her to the
desert and then raped her. (Id. at p. 1206.) Defendant then
drove the victim another 50 to 75 yards into the desert and raped
her again. (Ibid.) Defendant then drove another 30 to 75 yards,
stopped the car, and the victim ran into the desert. (Ibid.) Under
those circumstances, the court held that section 654 barred
multiple punishment. (Id. at p. 1216.) The court, however,
explained that under section 654, “similar but consecutive
objectives” may permit “multiple punishment.” (Id. at p. 1212.)

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The defendant in Latimer kidnapped the victim and raped
her shortly thereafter. He moved her only a short distance,
measured in yards, between rapes. The defendant in Latimer did
not make multiple stops affording him the opportunity to reflect
and renew his intent. In contrast here, as the trial court
implicitly found, defendant renewed his intent as he drove
Veronica around for hours to different buildings and locations.
2. Section 654 does not bar multiple punishment
for aggravated kidnapping and assault
Defendant’s argument that section 654 bars multiple
punishment for kidnapping with intent to rape and assault
ignores the proper standard of review. “A trial court’s express or
implied determination that two crimes were separate, involving
separate objectives, must be upheld on appeal if supported by
substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599,
618.)
For purposes of section 654, the issue is whether defendant
harbored a separate intent and objective for each offense.
(People v. Hicks, supra, 17 Cal.App.5th at pp. 514–515.)
Substantial evidence supported the trial court’s conclusion that
he did. Defendant assaulted Veronica at the Valley Motel,
pulling her hair and punching her in the face. This occurred
prior to the kidnapping. After forcing Veronica into his car,
defendant pounded her face into the console. By the time, they
reached defendant’s apartment, a patch of Veronica’s hair was
missing, and her eye was bruised. As a result of defendant’s
beatings, Veronica suffered bruises and bite marks. She had bald
patches on her head and bleeding from one eye. Her cheek bone
was tender. Additionally, defendant accelerated the vehicle,

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causing the car door to slam on Veronica’s leg and injuring it
severely.
Although the record does not show which assault jurors
relied upon in convicting defendant, the record supported the
trial court’s implicit conclusion that each was based on an intent
to harm her. Defendant even celebrated when Veronica cried
from pain stating, “That’s good. That’s what you deserve.”
Defendant’s intent to harm Veronica was separate and distinct
from his intent to rape her. The movement leading to the
kidnapping conviction was an act separate from the assaults.
Defendant emphasizes that the kidnapping continued
during the time period most of the assaults occurred. However,
he fails to demonstrate this is the inquiry relevant to a
section 654 analysis. We are not called upon to determine
whether the assault occurred while the kidnapping was in
progress. Instead, the dispositive issue concerns defendant’s
intent. Even if the assaults were contemporaneous to the
kidnapping, defendant could have kidnapped Veronica with the
intent to rape her without the intent to assault and harm her by
punching her face, ripping out her hair, or breaking her leg and
foot. The record amply supported the trial court’s implicit
conclusion that defendant harbored a separate intent when he
assaulted Veronica.
B. Defendant Is Not Entitled To Diversion Under
Section 1001.36
Effective June 27, 2018, the Legislature enacted
section 1001.36, which authorizes pretrial diversion for qualifying
defendants with mental health disorders. Section 1001.36
defines “ ‘pretrial diversion’ [as] the postponement of prosecution,
either temporarily or permanently, at any point in the judicial

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process from the point at which the accused is charged until
adjudication.” (§ 1001.36, subd. (c).)
The Legislature amended the statute effective January 1,
2019 to limit the eligibility for diversions. Persons who commit
rape in addition to other crimes are no longer eligible. Because
defendant committed rape, he is not eligible for diversion even if
section 1001.36 would apply retroactively, an issue we do not
have to decide.
Defendant argues that under the ex post facto law, this
court should apply section 1001.36 as it existed between
June 27, 2018 and January 1, 2019. Both the California and
federal Constitutions prohibit the enactment of ex post facto
laws. (Cal. Const., art. I, § 9; U.S. Const., art. I, §§ 9, 10.) “A
statute violates the prohibition against ex post facto laws if it
punishes as a crime an act that was innocent when done or
increases the punishment for a crime after it is committed.”
(People v. White (2017) 2 Cal.5th 349, 360.)
The ex post facto laws do not apply here because defendant
committed his crimes in 2009, before the diversion program
existed. He thus could not have relied on the prospect of
pretrial diversion when he committed his offenses. The new
law, moreover, does not punish an act that was innocent or
increase the punishment for a crime after it was committed. As
People v. Cawkwell (2019) 34 Cal.App.5th 1048 held under nearly
identical circumstances, there is no ex post facto violation
because defendant “was subject to the same punishment when he
committed his offenses as he was after the Legislature narrowed
the scope of defendants eligible for diversion.” (Id. at p. 1054.)
To the extent defendant is arguing that this court is
required to apply former section 1001.36 as it existed June 27,

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2018, he offers no legal theory or legal authority to support that
argument. Although defendant demonstrates that courts
regularly apply current statutes retroactively when those
statutes mitigate punishments, he cites no authority supporting
his claim that the same rule applies to former statutes. The
rationale for applying current statutes retroactively is that
the Legislature has determined the offense no longer merits
the greater punishment. (In re Estrada (1965) 63 Cal.2d 740,
744–746; People v. Frahs, supra, 27 Cal.App.5th at pp. 790–791.)
That rationale does not apply here because the Legislature has
made clear that the statute does not apply to persons who, like
defendant, commit rape.
C. Custody Credits
The parties agree that the case must be remanded for the
trial court to recalculate defendant’s custody credits in light of
the pretrial time defendant spent in a state mental health facility
while he was being evaluated for competency to stand trial. As
the parties agree, upon remand, the trial court should determine
whether defendant was entitled to credit for the time he spent at
Patton State Hospital (People v. Bryant (2009) 174 Cal.App.4th
175, 177, 182–183) and the time he spent in jail (§ 4019).

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DISPOSITION
The judgment of conviction is affirmed. The case is
remanded for the trial court to recalculate defendant’s custody
credits. If the trial court revises defendant’s custody credits, it
shall amend the abstract of judgment and forward the amended
abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
CHANEY, Acting P. J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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