Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA056146-01, Robert J. Schuit, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, J.
Rene Edgar Lorenzo appeals from the judgment entered after this court remanded for resentencing. (People v. Lorenzo (Jan. 29, 2009, B205310) [nonpub. opn.].) Appellant was convicted following a nonjury trial of first degree burglary (Pen. Code, § 459), two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible sodomy (§ 286, subd. (c)(2)), and one count of penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)). In the previous opinion, we affirmed the conviction, but we held that the trial court’s explanation of the sentence was inadequate for purposes of section 667.6, subdivision (d) and remanded for the court to explain its sentencing decision.
All further statutory references are to the Penal Code unless otherwise specified.
The statute provides, in pertinent part, that the court shall impose fully consecutive sentences for the sex crimes of which appellant was convicted if the crimes “involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (§ 667.6, subd. (d).)
Upon remand, the trial court imposed the same sentence that it had previously imposed, eight years for each of the sex crimes, to be served consecutively, and four years for the burglary count, to be served concurrent with the sex crimes sentence, for a total of 40 years. However, the court gave a detailed explanation of the reasons for the sentence it imposed. In finding that the crimes were committed on separate occasions within the meaning of section 667.6, subdivision (d), the court reasoned that appellant “had a reasonable opportunity to reflect on his actions” between each sex crime that he committed against the victim, describing in detail the circumstances of each assault.
The facts are recited in detail in our prior opinion. (See People v. Lorenzo, supra, B205310.)
For example, the court explained that appellant “inserted his penis into [the victim’s] vagina. When it came out of the vagina, when it slipped out, it was apparently difficult for him to reinsert it because of the way that she had positioned her body and her clothing. [¶] And so this second insertion is separated... from the first by... a reasonable opportunity to reflect on his actions. He exerted the necessary effort to once again impose his will upon her and did succeed and penetrated the vagina a second time.” The court further explained that appellant then “switched to a different body part – that would be his finger – to penetrate the vagina. [¶] This, again, in my mind, demonstrates a meaningful reflection on his part to change his method of attack.... [¶] He broke off the attack at this point and switched to a different body part, a different body part of his and a different body part of the victim’s. He once again utilized his penis and this time entered or penetrated the victim’s anus. He did this on more than one occasion....” Based on the circumstances of the attacks, the court found that appellant “had a reasonable opportunity to reflect upon his actions even though he did not necessarily change positions between each of the events that I’ve described.” (See People v. Garza (2003) 107 Cal.App.4th 1081, 1092 [explaining that “‘“[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”’” for purposes of Penal Code section 667.6, subdivision (d)].)
Appellant filed a notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On February 8, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date. On February 9, 2010, we granted appellant’s request, pursuant to Evidence Code section 459, to take judicial notice of our unpublished opinion in People v. Lorenzo, supra, B205310.
“Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed 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 an offense before resuming his assaultive behavior. [Citations.]” (People v. Garza, supra, 107 Cal.App.4th at p. 1092.) We hold that the trial court reasonably could have concluded appellant had a reasonable opportunity for reflection between the sex crimes and the crimes accordingly occurred on separate occasions within the meaning of section 667.6, subdivision (d).
Because we affirm the trial court’s finding under section 667.6, subdivision (d), we need not address the court’s alternate finding that it would impose the same sentence in its discretion under section 667.6, subdivision (c).
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J. MANELLA, J.