Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF098098, Charles W. Campbell, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
A jury found defendant Jorge Arturo Lopez guilty of attempted murder (Pen. Code, §§ 664/187, subd. (a)) (count 1); torture (§ 206) (count 2); making criminal threats (§ 422) (count 3); domestic violence (§ 273.5, subd. (a)) (count 4); forcible rape (§ 261, subd. (a)(2)) (count 5); and child endangerment (§ 273a, subd. (a)) (count 6). The jury also found true that defendant personally used a deadly and dangerous weapon, to wit, a knife, (§§ 12022, subd. (b)(1) & 1192.7, subd. (c)(23)) in the commission of counts 1, 2, 4, 6 and that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (e) & 1192.7, subd. (c)(8)) in the commission of counts 1 and 4. The jury found the remaining enhancement allegations to be not true. Specifically, the jury concluded the attempted murder was not premeditated and deliberate and that defendant did not use a firearm in commission of count 2 or a deadly weapon in the commission of counts 3 and 5. Defendant was sentenced to a life term consecutive to 20 years 8 months in state prison as follows: life with the possibility of parole on count 2, plus one year for the knife-use enhancement; the midterm of seven years on count 1, plus four years for the great bodily injury enhancement and one year for the knife-use enhancement; the midterm of six years on count 5; and one third the midterm of one year four months on count 6, plus four months for the knife-use enhancement. Sentences on counts 3 and 4, as well as the attached enhancements, were stayed pursuant to section 654.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) his conviction for rape should be reversed because the trial court erred in failing to sua sponte instruct the jury on the good faith but mistaken belief of consent defense pursuant to CALJIC No. 10.65; (2) his sentences for attempted murder (count 1) and forcible rape (count 5) should have been stayed pursuant to section 654; and (3) his consecutive sentences violate his constitutional rights to a jury trial. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
The victim, Veronica Z., and defendant dated on and off beginning in 1995 and had a daughter together. They never married but lived together on and off until Veronica terminated her relationship with defendant in 1997, when their daughter was two years old.
The couple’s relationship had been tumultuous. Veronica described various incidents involving defendant. In December 1997, defendant had raped Veronica at gunpoint. The rape occurred when Veronica went to Norwalk, where defendant was residing, to pick up their daughter. Veronica did not report this incident to the police.
In February 1998, when Veronica arrived to pick up their daughter after work, defendant was there and got into Veronica’s car along with the child. Defendant told Veronica to do what he said or he would hurt her. Veronica said she would go anywhere with defendant if he let her drop off their daughter. As defendant walked the child to Veronica’s parents’ front door to drop her off, Veronica got out of the car and ran into an apartment complex. Defendant followed her, but residents of the apartment complex prevented him from getting near her. Veronica thereafter obtained a restraining order against defendant.
In another incident in early 1998, Veronica hit defendant with her vehicle following an argument, and defendant called the police. Veronica explained that she did this because defendant was hitting her car. Defendant called the police on another occasion around this time after Veronica hit him in the mouth. Veronica claimed this was an accident.
Veronica and defendant had two or three consensual sexual encounters during this time. The last time this occurred was about six months before the subject incident. At that time, Veronica told defendant she did not want to be romantically involved with him anymore; she denied ever having another consensual sexual encounter with him again.
Shortly before the incident, due to defendant’s behavior, Veronica, who had legal custody of their daughter, stopped allowing defendant to see her. On July 6, 2001, defendant called Veronica, apologizing and begging to see their daughter. Veronica agreed to let defendant take her for the weekend. That evening, defendant called Veronica and asked to meet so he could pick up the child’s blanket. Veronica declined because she did not feel safe seeing him.
The following day, while Veronica was at work in Cerritos, defendant called, begging to meet her, saying he had something he wanted to give her. Veronica reluctantly agreed to meet with defendant after work; they met in the parking lot of Veronica’s work. Their daughter was asleep in defendant’s car. Defendant said he had given the child more than the regular dosage of some cough syrup she had been prescribed to keep her asleep. Veronica saw an empty beer bottle in the center console. Defendant told Veronica to get into the driver’s side of the car. Veronica obliged, believing defendant posed a danger to their daughter. Defendant got into the passenger side, and Veronica asked about the beer. Defendant said he was going to spend his last day with her and then kill himself.
Defendant told Veronica to start the car, but Veronica refused, crying and stating she wanted to take their daughter out of the car and give her to someone from work first. Defendant brandished a knife and told Veronica to start the car or he would stab her. Defendant also had a shotgun on the floor of the passenger side. Veronica did not get out of the car because she was afraid of leaving their daughter with defendant.
When Veronica continued to refuse defendant’s order to start the car, defendant stabbed her in the right thigh with the knife. Veronica begged defendant to let her drop off their daughter, but defendant refused and again ordered her to start the car. Defendant directed Veronica to his mother’s house in Moreno Valley and told Veronica to go along with his story that she was hurt in a fall and that they were getting back together. Defendant threatened to hurt her if she did not.
When they arrived in Moreno Valley, defendant got rid of the shotgun somewhere and then carried Veronica into his mother’s apartment. Defendant’s sister Adriana took the child inside. Defendant’s mother, her husband Raul, and defendant’s brother Alex were inside the apartment. Defendant told his mother the story, and Veronica went along with it. He then carried Veronica into his brother’s bedroom, where she lay down on the bed. Defendant gave her some pain medication and water and also tied a cloth around her leg to stop the bleeding.
While in the bedroom, defendant told Veronica that he did not want to hurt her but that he wanted to be with her and told her not to make any noise. She lay there while defendant proceeded to take off her clothes and have sexual intercourse with her. Veronica did not want to have sex with defendant and testified that she had cried throughout the experience. On cross-examination, Veronica testified that she told defendant, “no.” On redirect examination, Veronica said she told defendant, “Please, no,” while she cried. She was afraid of defendant hurting her and felt that she had no alternative to having sex. For the same reason, she did not try to push defendant off of her or scream. In addition, she could not force him off of her because he was stronger than she.
After defendant had sex with Veronica, she said she was still in pain, and defendant got some more water and codeine. While he was gone, Veronica got the knife defendant had used to stab her and hid it under the mattress. When defendant returned to the room, he was calm and relaxed and was drinking alcohol. He allowed Veronica to use the bathroom by herself, while he left the room. She did not try to leave the apartment because she did not have her keys, cellular telephone, or money. She was also unfamiliar with the area and did not know anyone in Moreno Valley. Further, she was also in shock from what had occurred. She called Adriana into the bathroom, explained what had happened, and told her to tell her mother to call the police.
When they sat down at the dinner table to eat, defendant’s mother asked Veronica if she wanted to go home. Initially, Veronica said she did. After defendant pinched her left leg hard and gave her a threatening look, which caused her to be afraid of defendant, Veronica said she was okay. Veronica felt defendant was “controlling [her] every movement,” and she was acquiescing to keep defendant happy.
Later that evening, while the family was preparing to go to bed, Veronica, still very scared, grabbed their daughter and went into the bathroom off of the mother’s bedroom. She locked herself in the bathroom and held the child. Defendant began banging on the bathroom door and asking Veronica to open the door and come out. Veronica told them to call the police first, and then she would come out. Defendant continued to bang on the bathroom door until he punched a hole through the door and broke it down. Veronica was crying and screaming; the child was saying, “No, Daddy. No, Daddy.” Defendant entered the bathroom, grabbed Veronica (who was still holding onto the child) by the hair, and dragged her into the full bathroom area and began beating her. While yelling that he was going to kill her, defendant was hitting her and banging her head and face against the sink while holding her by the hair. Veronica heard the mother and Raul screaming at defendant to let her go. Defendant then stabbed Veronica in the middle of her back. Raul and Alex tried to get defendant off of Veronica, but defendant threatened to hurt them too if they did not let go.
Veronica eventually yanked herself away from defendant, causing her hair to tear out under his grasp, and ran out of the bathroom. She grabbed the child, who was standing in the hallway outside the bathroom, and ran out of the apartment. Veronica ran to a nearby apartment with defendant chasing her and screaming her name as she fled. She got a window to the apartment opened and crawled through it, then reached back to pull the child into the apartment. At this point, defendant caught up to her, grabbed her by the hair, pulled her back out of the window, and wrapped his other arm around her neck. Alex appeared and told defendant to let Veronica go because he was going to kill her. Cursing, defendant responded Veronica had “messed up” and that he was going to kill her. He continued holding her by the hair with one hand and choking her with the other.
The police arrived on the scene while defendant was still choking Veronica outside the apartment complex. She was bent over and limp; defendant’s arm was wrapped around her throat and his hands were in her hair. Defendant released Veronica when he was ordered to do so at gunpoint by police, and he was taken into custody.
Veronica was treated at the scene and then transported to a hospital. She sustained various injuries to her face, neck, arms, back, hands, shoulder area, and leg.
At the scene, Alex informed the police that after defendant had forced his way into the bathroom and locked the door behind him, Alex had called 911. He and the others then forced the bathroom door open and found defendant holding Veronica by the hair. After defendant broke free of their restraint, he ran into the kitchen and grabbed a knife. Defendant did not heed Alex’s request to stop but forced his way past him and the others, kicked open the bathroom door again, knocked Veronica to the ground, and stabbed her four to five times. When Alex and the others again restrained defendant, Veronica ran outside the apartment and defendant ran after her. Alex chased after defendant to a nearby apartment, and told defendant to stop attacking Veronica again. Defendant responded, “My life is over. I don’t care anymore.”
Adriana corroborated Alex’s version of the events. However, she denied telling the police that she saw defendant kick and stab Veronica as she lay on the floor.
Defendant testified on his own behalf. He did not recall having forced Veronica to have sex with him in 1997 and denied having forced Veronica to drive around in February 1998. He claimed he and Veronica continued to have consensual sex after 2000, the last time being two weeks before the incident.
Regarding the current incident, defendant denied the statements made by Veronica when he first met her at her work. He claimed that he and Veronica were fighting over their daughter and he pulled out the knife and pressed it against Veronica’s thigh. He was surprised when it punctured her skin; he “didn’t realize [he] was pressing so hard.” He further stated that he had told Veronica to get out of the car but that she had refused. They eventually agreed to drive to his mother’s house, and defendant told Veronica to state that she had injured her leg in an accident, which Veronica agreed to do so. When they arrived, defendant disposed of the shotgun while Veronica waited in the car. He claimed he had the shotgun because he wanted to kill himself.
Once inside the apartment, defendant helped Veronica clean and dress the wound in the bathroom. While inside the bedroom, they talked, and Veronica expressed concern about his suicidal thoughts, trying to comfort him. While they were watching a video, Veronica continued to comfort him, and they eventually had consensual sex. Defendant claimed that Veronica never objected or tried to push him off. He confirmed that Veronica began crying after the intercourse, but she never said anything was wrong. He also asserted that he had offered to take her home, but she had refused.
Defendant had essentially corroborated the attack on Veronica. He confirmed that he had grabbed Veronica by the hair and hit her while she was in the bathroom because she had angered him by telling his family he had stabbed her in the leg and by refusing to open the bathroom door. He also confirmed that he had stabbed Veronica with the knife and that he had grabbed Veronica by the hair when she tried to escape. Defendant further admitted that he had chased Veronica to a nearby apartment, that he had told the others to get out of his way, and that he had pulled her out of the apartment window by her hair. Once he had pulled Veronica out, he had attempted to comfort Veronica by placing his arms around her and telling her he was sorry. Defendant denied ever having threatened to kill Veronica during the ordeal.
II
DISCUSSION
A. Instructional Error
Defendant contends that, as to the forcible rape charge, the trial court prejudicially erred by failing to give the jury, sua sponte, the instruction set out in CALJIC No. 10.65, the Mayberry instruction. Specifically, he argues there was substantial evidence to support a finding that defendant maintained a reasonable and good faith, albeit mistaken, belief that Veronica consented to the sexual intercourse on the night in question.
CALJIC No. 10.65 provides: “In the crime of unlawful [forcible rape] . . ., criminal intent must exist at the time of the commission of the [crime charged]. [¶] There is no criminal intent if the defendant had a reasonable and good faith belief that the other person voluntarily consented to engage in [sexual intercourse] . . . . Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [, unless the defendant thereafter became aware or reasonably should have been aware that the other person no longer consented to the sexual activity.] [¶] [However, a belief that is based upon ambiguous conduct by an alleged victim that is the product of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of the alleged victim or another is not a reasonable good faith belief.] [¶] If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the accused sexual activity, you must find [him][her] not guilty of the crime.”
People v. Mayberry (1975) 15 Cal.3d 143.
Under Mayberry, a defendant’s reasonable and good faith mistake of fact about consent is a defense to a sexual offense. (People v. Williams (1992) 4 Cal.4th 354, 360.) A trial court need only give a Mayberry instruction on its own motion when it appears that the defendant is relying on a defense of reasonable belief in consent or if there is substantial evidence supporting such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1369.) “The Mayberry defense . . . permits the jury to conclude that both the victim and the accused are telling the truth. The jury will first consider the victim’s state of mind and decide whether she consented to the alleged acts. If she did not consent, the jury will view the events from the defendant’s perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not. [Citation.]” (People v. Romero (1985) 171 Cal.App.3d 1149, 1155-1156.)
In Williams, the Supreme Court defined the substantial evidence necessary to warrant a Mayberry instruction. The court noted that the Mayberry defense has subjective and objective components. “The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse.” (People v. Williams, supra, 4 Cal.4th at pp. 360-361, fn. omitted.) To satisfy this component, there must be evidence of the victim’s equivocal conduct on the basis of which the defendant erroneously believed there was consent. The objective component asks whether the defendant’s mistaken belief that the victim consented was reasonable under the circumstances. (Id. at p. 361.) Williams held that “the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (Id. at p. 362.) Mere “divergent accounts [of what occurred] create no middle ground from which [the defendant can] argue he reasonably misinterpreted [the victim’s] conduct.” (Ibid.)
In Williams, both the victim and the defendant testified that they spent time together, and then the victim accompanied the defendant to a hotel, where the clerk handed them a bed sheet when they checked in. The defendant testified that the victim initiated the sexual contact, even fondling his genitals to overcome his impotence caused by diabetes, and inserted his penis into her vagina. According to the victim, the defendant blocked her way when she tried to leave and forcibly raped her. (People v. Williams, supra, 4 Cal.4th at pp. 357-359.)
The trial court refused a requested instruction on reasonable and good faith but mistaken belief as to consent, and the Supreme Court agreed, holding there was no substantial evidence to support a Mayberry instruction. “These wholly divergent accounts create no middle ground from which [the defendant] could argue he reasonably misinterpreted [the victim’s] conduct. [Citations.] There was no substantial evidence of equivocal conduct warranting an instruction as to reasonable and good faith, but mistaken, belief of consent to intercourse.” (People v. Williams, supra, 4 Cal.4th at p. 362.)
In this case, despite defendant’s arguments to the contrary, substantial evidence was not presented to warrant a Mayberry instruction. In other words, the record does not show the kind of equivocal conduct on the part of the victim to merit the challenged instruction. While there was a dispute as to how long it had been since defendant and Veronica had last had consensual sexual intercourse, it was undisputed that defendant and Veronica were no longer sexually active with one another on the day of the incident. In fact, Veronica had told defendant she no longer wanted to be romantically involved with him, and their contact on the day of the incident was solely at the behest of defendant. It is also clear that Veronica got into defendant’s car out of fear for the safety of her daughter. As defendant himself admitted at trial, defendant had been drinking and driving with their daughter in the car and had told Veronica he had suicidal ideation. Once in the car, defendant threatened Veronica with a knife and a shotgun to turn on the car and drive to his mother’s house. Indeed, when she refused, crying and pleading to at least let her get their daughter out of the car, defendant stabbed her with the knife on her leg. Only after defendant continued to threaten Veronica did she comply with his demand. While defendant denied having threatened Veronica with the shotgun and claimed he had only mistakenly punctured her leg with the knife, he admitted brandishing the knife, pressing it against her leg, and insisting their daughter was going to stay with him before Veronica “agreed” to drive to the apartment. Additionally, on the drive to the apartment in Moreno Valley from Cerritos, defendant threatened to hurt Veronica if she did not go along with his story that she was hurt in an accident and that they were getting back together. Defendant admitted having told her to do so. He had also more generally threatened Veronica to listen to him and go along with everything if she wanted to keep their daughter safe.
Once at the apartment, defendant told Veronica he did not want to hurt her but wanted to be with her and helped her in cleaning the stab wound and giving her pain medication. He also told her not to make any noise. Defendant thereafter proceeded to remove Veronica’s clothing and have sexual intercourse with her. Veronica testified that she did not want to have sexual intercourse with defendant and that she had cried throughout the experience. She also testified that she told defendant “no” while she cried. Veronica explained that she was crying because she was afraid defendant would hurt her and therefore did not scream or try to push defendant off of her. Based on the circumstances leading up to the sexual encounter, one could hardly conclude from Veronica’s description of the events that a reasonable person in defendant’s position would have believed she consented to the intercourse. While defendant may have assisted Veronica in cleaning her stab wound, this hardly suggests some sort of sudden romantic reconciliation given defendant’s conduct and pattern of violent and aggressive behavior toward her on the day of the incident as well as Veronica’s conduct afterwards. A reasonable inference can be made that refusing his advances would bring Veronica further harm.
Even accepting defendant’s rendition of the events, a reasonable person could not reasonably infer Veronica consented to the act. Defendant testified that he had initiated the sexual encounter: he had started kissing her, taking off her clothes, and becoming intimate with her. Defendant claimed he did this in response to Veronica “comforting” him. However, defendant also testified that, just before the intercourse, Veronica had asked defendant to leave the apartment or to let her leave with their daughter, but he had refused. Defendant did not ask for permission to have sex with her, and there was no evidence to suggest Veronica consented to the sexual intercourse or that she had initiated the sexual encounter. Even if Veronica made no overt objection to defendant’s advances, her acquiescence to them cannot be reasonably viewed as consent to engage in intercourse, given defendant’s threatening manner throughout the day and the fact that he had already stabbed Veronica in the leg and forced her to drive an hour away from her car and home. (Cf. People v. May (1989) 213 Cal.App.3d 118, 123-129 [testimony of victim that she accompanied the defendant to his apartment after several hours of merriment, that she did not leave when presented with the opportunity, and that she admitted she did not verbally object in the bedroom, combined with the defendant’s father’s testimony that she behaved as if she was a willing participant, warranted a Mayberry instruction, even where defendant testified to a sex-for-money encounter].)
The evidence here is not the sort of equivocal conduct referred to in Williams that could reasonably and in good faith have been relied upon to form a mistaken belief on defendant’s part of Veronica’s consent to the acts of sexual intercourse. Our review of the record shows no substantial evidence of equivocal conduct warranting an instruction as to reasonable and good faith, but mistaken, belief of consent to that act.
B. Section 654
Defendant next contends his sentences on count 1 for attempted murder and count 5 for rape should have been stayed pursuant to section 654 because these offenses were part of one indivisible course of conduct with a single objective of torturing the victim. He therefore maintains punishment was only warranted for the torture conviction in count 2. We disagree.
In sentencing defendant to a consecutive term for the attempted murder, the trial court reasoned, “I believe that the attempted murder, basically stabbing her in the back with the knife in the bathroom, is independent of the torture crime. My feeling is for Count 2, the torture, that that’s continued over a long period of time. We have the incidence [sic] in the car that can support that conviction. After he stabbed her, he pulled out her hair, he banged her head on the ground when he dragged her out of the apartment outside. So there are multiple acts that could constitute the 206 without reference to stabbing her in the back with a knife. So I believe that it’s a separate crime of violence.”
Regarding the rape conviction, the court explained, “My feeling is that should be a full term, consecutive count. That’s a separate act of violence that occurred significantly after, before stabbing her, but after when he took her in the car and stabbed her with the knife in the leg, he had significant amount of time to think about what he was going to do, and that’s a completely separate assault on the victim.”
Section 654, subdivision (a) provides in pertinent 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.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘Whether a course of criminal conduct is divisible, and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.’” (People v. Norrell (1996) 13 Cal.4th 1, 6.) “[T]he Supreme Court has long applied section 654 to preclude multiple punishment where multiple acts, or offenses, were committed incident to a single intent and objective.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
As explained by the court in People v. Nubla (1999) 74 Cal.App.4th 719 (Nubla), “‘“The divisibility of a course of conduct depends upon the intent and objective of the defendant. . . . [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” [Citations.]’ [Citation.]” (Id. at p. 730.)
The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless it is not supported by substantial evidence. (People v. Saffle (1992) 4 Cal.App.4th 434, 438, cited and approved on this point in People v. Osband (1996) 13 Cal.4th 622, 730.) The court’s findings may be either express or implied from the court’s ruling. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.)
One relevant consideration in determining whether multiple crimes should be considered severable for section 654 purposes is the “‘temporal proximity’” of the crimes. (People v. Evers (1992) 10 Cal.App.4th 588, 603, fn. 10.) Where the offenses are “‘separated by periods of time during which reflection was possible,’” section 654 does not prohibit multiple punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689.)
Apply these principles, we find the trial court properly imposed consecutive sentences on counts 1 and 5. We find support for our conclusion in Nubla, supra, 74 Cal.App.4th 719. There, the defendant committed several acts of violence against his wife -- bloodying her nose by pushing her onto the bed, putting a gun to the back of her head, and putting a gun in her mouth. (Id. at p. 730.) The court held it was not error to impose multiple sentences for assault with a deadly weapon and corporal injury on a spouse, reasoning that the offenses were “somewhat analogous to sex offenses in that several similar but separate assaults occurred over a period of time.” (Ibid.) Significantly, “each sexual assault may be viewed as a separately punishable criminal act, notwithstanding that all the offenses arguably were done to obtain sexual gratification” (ibid), because “‘“[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental” to any other.’ [Citation.]” (Id. at p. 731.)
Nubla explained “‘that . . . a “broad and amorphous” view of the single “intent” or “objective” needed to trigger [section 654] would impermissibly “reward the defendant who has the greater criminal ambition with a lesser punishment.” [Citation.] Rather, in keeping with the statute’s purpose, the proper view [is] to recognize that a “defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.”’ [Citation.]” (Nubla, supra, 74 Cal.App.4th at pp. 730-731.) Nubla held the same analysis supported the trial court’s ruling in the assault case before it. (Id. at p. 731.) There, the defendant’s “act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth, did not facilitate that offense and was not incidental to that offense. The trial court was entitled to conclude that each act was separate for purposes of . . . section 654.” (Ibid.; see also People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [the defendant could be punished for two assaults where he fired three shots at police officer while fleeing in stolen taxicab; first shot separated by almost a minute from the second two]; People v. Surdi, supra, 35 Cal.App.4th at pp. 688-690 [multiple punishment proper where the kidnapping and mayhem offenses were separated by periods of time during which reflection was possible]; People v. Jenkins (1987) 196 Cal.App.3d 394, 405-406 [section 654 did not preclude punishment for two shootings, one in connection with robbery and another immediately following it; second shot was gratuitous act of violence], disapproved on another ground in People v. Brown (1993) 6 Cal.4th 322, 336, fn. 12.)
Here, too, in keeping with the purpose of section 654 to ensure that punishment is commensurate with a defendant’s criminal culpability, the trial court was entitled to conclude that each crime was separate, was not committed as a means of committing and facilitating any other, and was not incidental to any other. As the trial court pointed out, a number of defendant’s violent actions throughout the incident could have supported the torture count, i.e., stabbing the victim in the car or later pulling out her hair. Torture involves the infliction of great bodily injury with “the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose . . . .” (§ 206.) The rape was separated by time and did not occur until after defendant forced Veronica to drive to his mother’s apartment an hour away.
Likewise, the attempted murder was separated by periods of time during which reflection was possible. The attempted murder occurred a period of time after the rape and after Veronica locked herself and her daughter in the bathroom. Moreover, the record discloses that defendant’s intent and objective in committing the attempted murder was independent of and not merely incidental to the torture. Although defendant had the same intent of inflicting injury in both counts, he embarked upon a different course of conduct when he stabbed Veronica in the back.
Substantial evidence supports the trial court’s finding that defendant entertained separate criminal objectives when he committed the torture (count 2), rape (count 5), and attempted murder (count 1). (See Nubla, supra, 74 Cal.App.4th at pp. 730-731.) Section 654 does not “reward” a defendant for committing acts of gratuitous violence. (Nubla, at p. 730.) In this case, each offense was intended to achieve greater criminal gratification and was not intended to facilitate the other. (Id. at p. 731.) The trial court did not err by imposing consecutive sentences on counts 1 and 5.
C. Constitutional Issue
Defendant also argues that consecutive sentences on counts 1 (attempted murder), 5 (rape), and 6 (child endangerment) contravene Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely), Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 116 L.Ed.2d 856] (Cunningham), Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], and United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621] because the decision to impose them was not supported by facts admitted by him or found by the jury.
In People v. Black (2005) 35 Cal.4th 1238, 1263 (Black I), our Supreme Court held that Blakely does not apply to a trial court’s decision to impose consecutive sentences. In People v. Black (2007) 41 Cal.4th 799, 821 (Black II), the court reaffirmed this conclusion, stating that it was not undermined by Cunningham even though Cunningham abrogated Black I on the issue of upper terms. The Black II court examined section 669, which provides that a court imposing sentence for two crimes must decide whether they are to run concurrently or consecutively; if it fails to do so, they are to run concurrently. The court held that these provisions do not require the sentencing court to make any factual findings before imposing consecutive sentences and do not create a presumption in favor of concurrent sentences. This means Blakely and Cunningham have no application to consecutive sentences imposed under section 669, for those cases held that if state law requires a factual finding as a prerequisite to the imposition of a sentence, the facts in question must be found by the jury or admitted by the defendant or must consist of prior convictions. (Black II, at pp. 822-823.) As authoritatively interpreted by the California Supreme Court, the California statute does not require any factual finding as a prerequisite to the imposition of consecutive sentences. After briefing was completed in the instant case, the United States Supreme Court reached the same conclusion in Oregon v. Ice (2009) ___U.S. ___[129 S.Ct. 711, 172 L.Ed.2d 517]. There is no presumption and the decision is discretionary with the sentencing court.
In short, Cunningham and related federal cases do not apply to the imposition of consecutive terms (Black II, supra, 41 Cal.4th at pp. 799, 806, 821-822), and factual findings, whether by the jury or by the court, are not required. (Id. at p. 822.) It is true that a trial court must state reasons on the record for imposing consecutive sentences under section 669, or full consecutive sentences under sections 667.6, subdivision (c) (see Black II, supra, at p. 822; section 1170, subd. (c); Cal. Rules of Court, rules 4.406(a), (b) and 4.426(b); People v. Belmontes (1983) 34 Cal.3d 335, 347-348; People v. Thomas (1990) 218 Cal.App.3d 1477, 1489); the court did so here, and defendant does not contend otherwise.
Defendant acknowledges that we are compelled to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He raises the issue only to preserve it for later review. We hold there was no error in the imposition of these consecutive sentences.
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.