Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2005010499 Allan L. Steele, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Bill Lockyer, Attorneys General, Dane R. Gillette, Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Kathy S. Pomerantz, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
GILBERT, P.J.
In our prior opinion filed March 22, 2007, we remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this Court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black II), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. We issue a new opinion.
Jaime Juarez Garcia appeals a judgment after jury trial, following his conviction of making criminal threats (Pen. Code, § 422), corporal injury to a child's parent (§ 273.5, subd. (a)), forcible oral copulation (§ 288a, subd. (c)(2)), sexual battery by restraint (§ 243.4, subd. (a)), and forcible rape (§ 261, subd. (a)(2)). The court imposed an aggregate state prison term of 24 years and 8 months, which included an upper term sentence of 8 years for the forcible oral copulation count, and the upper term of 8 years for the forcible rape count. The court ruled that those sentences run consecutively.
All statutory references are to Penal Code.
We conclude the trial court did not err by imposing consecutive sentences for Garcia's convictions of forcible oral copulation and forcible rape and properly imposed the upper term sentences. We affirm.
FACTS
Garcia went to the home of his former wife, Maricela G. He hit her with a stick and told her he was going to kill her because she "was a whore." He demanded to go inside her home. He told her that if she did not let him in, he would take her children away.
He grabbed her and they entered the house together. Garcia told Maricela that "he wanted to sleep with [her] and that he owns [her]."
They walked into the bedroom and he told her to "get undressed." She complied because Garcia yelled at her and threatened to take her child away. He put his knees on her legs and "kissed" her vagina. After he finished that activity, he kissed her breast, and then the other breast. He then kissed her mouth and neck. Maricela testified that he also "was touching [her] all over [her] body . . . ." He ignored her requests that he stop. While he was kissing her breasts, he moved his legs so they were in between hers. He then "put his penis in [her] vagina."
DISCUSSION
I. Consecutive Sentences
Garcia contends the court erred by imposing consecutive sentences for forcible oral copulation and forcible rape because "the offenses did not occur on separate occasions." We disagree.
Where a defendant is convicted of forcible oral copulation and forcible rape, the court must impose consecutive sentences for those offenses if the crimes "involve the same victim on separate occasions." (§ 667.6, subd. (d); People v. Garza (2003) 107 Cal.App.4th 1081, 1091.) "'In determining whether crimes against a single victim were committed on separate occasions . . ., the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his . . . opportunity to attack, shall be . . . determinative on the issue of whether the crimes in question occurred on separate occasions.' [Citations.]" (People v. Garza, supra, at p. 1091.)
"[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. . . . [A] trial court could find a defendant had a 'reasonable opportunity to reflect upon his . . . actions' even though the parties never changed physical locations and the parties 'merely' changed positions." (People v. Irvin (1996) 43 Cal.App.4th 1063, 1071.) It may find multiple sex offenses committed on separate occasions even where there was no "obvious break in the perpetrator's behavior . . . ." (People v. Jones (2001) 25 Cal.4th 98, 104.) Where the trial judge finds that the defendant committed the offenses on separate occasions, "we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing" the first sex offense. (People v. Garza, supra, 107 Cal.App.4th at p. 1092.)
Here the trial court found Garcia committed these offenses "on separate occasions which means [he] had the opportunity to reflect and, nevertheless, resumed his sexually assaultive behavior." In so finding, the court did not abuse its discretion.
In Garza, the defendant inserted his finger in the victim's vagina, touched her breasts, placed his gun in the back seat, "pulled the victim's legs around his shoulders and . . . forced his penis inside her vagina." (People v. Garza, supra,107 Cal.App.4th at pp. 1092-1093.) The Court of Appeal held that he had an "adequate opportunity for reflection" between the time he committed the offenses of digital penetration and forcible rape. (. at p. 1093.)
The present case is analogous to Garza. When Garcia committed forcible oral copulation, his knees were on Maricela's legs. Before he forcibly raped her, he committed other sexual acts, including kissing her breasts, mouth and neck, and touching her all over her body. She repeatedly asked him to stop, but he continued. While Garcia was kissing her breasts, he changed his body position so that his legs were in between her legs. He then committed the forcible rape. From this evidence, the trial court could reasonably infer that he had a reasonable opportunity to reflect after committing oral copulation and before committing rape. (People v. Garza, supra, 107 Cal.App.4th 1093.)
Garcia contends that this case is analogous to People v. Pena (1992) 7 Cal.App.4th 1294, 1316, where the Court of Appeal held that a defendant who committed rape and oral copulation did not have a reasonable opportunity to reflect upon his actions. But in that case, the defendant raped the victim and then "simply flipped [her] over and orally copulated her." (Ibid.) The two offenses occurred in rapid succession within "a matter of seconds" of each other. (Ibid.) Here, by contrast, there was an interval between the two offenses when Garcia committed a calculated series of other sexual offenses which gave him time to reflect before committing rape. The trial court did not err by imposing consecutive sentences. (People v. Jones, supra, 25 Cal.4th at p. 104; People v. Irvin, supra, 43 Cal.App.4th at p. 1071.)
II. Cunningham
Garcia contends the trial court committed reversible error by imposing upper term sentences by relying on aggravating sentencing factors which were not tried by a jury. We disagree. Other than the fact of a prior conviction, the defendant is entitled to have a jury decide all aggravating sentencing factors before a court may impose an upper term sentence based on such factors. (Cunningham, supra, __U.S.__, [127 S.Ct. 856; 166 L.Ed.2d 856].)
Here the court imposed the upper term sentences for forced oral copulation and forcible rape. It noted that the probation report listed seven circumstances in aggravation. These included three factors involving prior convictions, e.g., that Garcia's prior convictions are numerous, that he was on probation when he committed the present crime and his performance on probation was unsatisfactory. The court found there were many more aggravating factors which were not listed in the probation report. It said Garcia "instilled fear in order to obtain compliance of the victim" by making threats. It found that his offenses involved a high degree of "viciousness" because he "repeatedly assaulted the victim." It said that Garcia "used force to orally copulate her, sexually batter her, and rape her . . . ." It found he "engaged in violent conduct . . . ."
The California Supreme Court has recently held that imposition of an upper term sentence does not violate a defendant's right to a jury trial where "at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made [the defendant] eligible for the upper term." (Black II, supra, 41 Cal.4th at pp. 805-806.) Here the court considered several aggravating factors. Under Cunningham , the aggravating sentencing factors involving prior convictions do not require jury findings. The trial court's findings on the sentencing factors involving Garcia's prior convictions are sufficient to sustain the upper terms. (Ibid.)
In addition, the trial court's finding that Garcia instilled fear by making threats is derived from the jury's verdict that Garcia was guilty of the offense of making criminal threats. The evidence on the criminal threats issue was uncontradicted. The court's finding that his offense involved a high degree of viciousness because he repeatedly assaulted the victim is based on the jury's verdicts. The jury found he was guilty of three sexual offenses and three counts of corporal injury involving the same victim. The court's finding that Garcia engaged in violent conduct is consistent with what the jury found. The jury found to be true the allegation that for one of the corporal injury counts Garcia used a deadly weapon, a stick. The prosecution's uncontradicted evidence showed that Garcia hit Maricela with a stick on her ear, her eyelid, her stomach and back.
The court's finding that he used force to commit the sexual offenses is also derived from the jury verdicts. The jury found Garcia was guilty of forcible oral copulation, sexual battery by restraint and forcible rape. Maricela's testimony was uncontradicted. She had bruises on her head, face, arms, chest, abdomen and in her genital area. We conclude that any error by the trial court was harmless beyond a reasonable doubt because, the jury "unquestionably would have found true at least a single aggravating circumstance had it been submitted" to it. (Sandoval, supra, 41 Cal.4th 825, 839.)
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.