Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA312866. George G. Lomeli, Judge. Affirmed in part with directions and reversed in part.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Jose Guadalupe Rivera appeals from the judgment entered following a jury trial in which he was convicted of cutting a utility line, first degree burglary, forcible rape, two counts of sexual battery, three counts of forcible oral copulation, and two counts of sexual penetration by a foreign object. Defendant contends that the evidence is insufficient to support his conviction of cutting a utility line and one of the two sexual penetration by a foreign object convictions. He further argues that the trial court committed sentencing errors. We reverse the cutting a utility line conviction, vacate the sentence on one count and remand for resentencing, but otherwise affirm.
BACKGROUND
Reyna G. lived in a one-room apartment. She was awakened by the sound of breaking glass about 4:30 a.m. on September 3, 2006. (Unless otherwise noted, all dates pertain to 2006.) She walked to the kitchen to check the window. Defendant placed a hand over her mouth, held a knife against her throat, and told her not to scream. Reyna saw, as well as felt, the knife. Reyna had never seen defendant before. Defendant told Reyna he was being followed by people who wanted to kill him. He lay down on Reyna’s bed and ordered her to join him. Reyna sat down on the bed and dialed 911 on her mobile phone. Defendant grabbed the phone, threw it on the coffee table, and warned her not to do that again. Defendant ordered Reyna to lie on the bed, and she complied. After a time, she got up, made her way to the door of the apartment, and was in the process of unlocking it when defendant grabbed her by her hair and pajama top. He removed her pajamas, then his own clothing, and forced her back onto the bed.
Defendant ordered Reyna to place her hand on his penis and masturbate him. She did so. Defendant told Reyna she did not know how to do it and placed his hand over her hand and moved her hand in the rhythm that he wanted. Defendant told her that was the way it had to be done. He then said he was “going to show [her] more stuff” and “going to show [her] so that [she] could do it to him afterwards.” Defendant then moved his body and “touched [her] vagina” with his fingers and mouth. Defendant moved again to “switch locations” with Reyna and pushed her head downward and forced his penis into her mouth. While he was doing so, he said he wanted to have anal sex with her. She begged him not to. Defendant said that the reason she did not have a man was because she “did not know how to do sex.” He inserted his fingers into her anus. After an apparent lull during which Reyna lay beside defendant, he pulled her on top of his body and placed his penis in her vagina. He grabbed her waist and moved her body until he ejaculated.
After another lull, defendant perused a sexually explicit magazine he brought with him. He told her she had to learn to do what was depicted in the magazine. He sat on the edge of the bed and forced Reyna to kneel between his legs. He began to masturbate and told Reyna to masturbate him as he had taught her. She complied. He grabbed her head and forced his penis into her mouth. He ejaculated in her mouth and on her chest. Soon thereafter, defendant dressed and left through the front door. Reyna locked the door after him and called a friend and the police. Reyna estimated that defendant forced her to engage in sexual activity for two hours. She did not know what defendant did with the knife, but she did not see it again after defendant held it against her throat at the start of her ordeal.
Police officers arrived at Reyna’s apartment about 8:20 a.m. They found that the kitchen window was broken and there was blood on the kitchen curtains and floor. Officers recovered the magazine defendant left in the apartment.
The parties stipulated that DNA contained in evidence collected from Reyna’s body during a sexual assault examination matched defendant’s DNA.
At some point after Reyna returned home from the hospital on September 3, she noticed that the landline telephone in her apartment did not work. She went outside and noticed that the phone lines had been cut. The phone had been fine before she went to work the previous night. While walking around outside the apartment complex on September 3, a police detective noticed that the phone lines had been severed. The apartment manager testified that after the police left the complex on September 3, several residents complained that their phones were not working. No one had complained about the phones on September 2.
Defendant returned to Reyna’s apartment at least three times after September 3, always late at night or in the predawn early morning. Twice he knocked on the door. Between 2:00 and 2:30 a.m. on November 19, Reyna and her boyfriend drove up to Reyna’s apartment complex and saw defendant pacing outside Reyna’s apartment with a beer in one hand and a light in the other. Defendant shone the light at Reyna’s window. Reyna phoned a neighbor who worked as a security guard. The security guard detained defendant until the police arrived and arrested defendant.
Defendant testified that he broke into Reyna’s apartment to escape several gang members who had attacked him. He admitted engaging in almost all of the sexual acts to which Reyna testified, but testified that all of the sexual activity was consensual and initiated by Reyna. Defendant denied that he had a knife, brought the magazine to Reyna’s apartment, and that he placed a finger into Reyna’s anus. He testified that he did not think he had placed his fingers inside of her vagina. Defendant returned to Reyna’s apartment several times to attempt to give her money to repair the window he had broken and because Reyna had asked him to get some of his friends together to “do something” to someone at her workplace who had attacked her.
The jury convicted defendant of cutting a utility line (Pen. Code, § 591), first degree burglary (§ 459), forcible rape (§ 261, subd. (a)(2)), two counts of sexual battery (§ 243.4, subd. (d)), three counts of forcible oral copulation (§ 288a, subd. (c)(2)), and two counts of sexual penetration by a foreign object (§ 289, subd. (a)(1)). (All further statutory references pertain to the Penal Code.) The jury found that the forcible rape, forcible oral copulations, and sexual penetrations by a foreign object (counts 5 through 10) were committed during a first degree burglary with intent to commit forcible rape and that, in their commission, defendant personally used a dangerous or deadly weapon in violation of section 12022.3, subdivision (a). (§ 667.61.) The court sentenced defendant to a total of 89 years 8 months to life in prison.
DISCUSSION
1. Sufficiency of evidence
Defendant contends that the evidence was insufficient to support his conviction of cutting a utility line (count 1) and one of his two sexual penetration by a foreign object convictions (counts 8 and 9).
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence and make all reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.) Testimony believed by the trier of fact is rejected on appeal only if physically impossible or obviously false. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
a. Sexual penetration by foreign object convictions
Defendant was convicted of two counts of violating section 289, subdivision (a)(1), which proscribes “sexual penetration when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” In pertinent part, section 289, subdivision (k)(1), defines “‘Sexual penetration’” as “the act of causing the penetration, however slight, of the genital or anal opening of any person... for the purpose of sexual arousal, gratification, or abuse by any foreign object....” “‘Foreign object’” includes “any part of the body, except a sexual organ.” (§ 289, subd. (k)(2).)
Defendant contends that the evidence supported conviction of only one count of sexual penetration by a foreign object, based upon Reyna’s testimony that defendant inserted his finger into her anus. He acknowledges that Reyna also testified that he “touched [her] vagina” with his fingers, but argues that this testimony was insufficient to support a second section 289 conviction because it did “not constitute substantial evidence that [defendant] penetrated her genital opening.”
“[T]he vagina is ‘“the passage leading from the external genital orifice to the uterus.”’” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.) In order to touch Reyna’s vagina, defendant would necessarily have penetrated her external genital opening, as required by section 289, subdivision (k)(1). Reyna’s testimony on this point was neither physically impossible nor obviously false. Defendant’s argument is necessarily premised upon either a misunderstanding of anatomy or speculation that Reyna either used the wrong word or did not actually mean what she said. If defendant believed Reyna misspoke, he should have explored that possibility on cross-examination. But he did not do so and cannot rely upon speculation to negate the meaning and sufficiency of Reyna’s testimony.
And defendant’s comments about “going to show [her] more stuff” and “going to show [her] so that [she] could do it to him afterwards” indicate his intent to touch her vagina with both his mouth (which he admits doing) and his finger as well; he also penetrated her anus with his finger, her vagina with his penis, and forced his penis into her mouth. A reasonable fact finder could conclude that defendant penetrated Reyna’s genital opening with his finger, accepting at face value Reyna’s testimony that he touched her vagina.
b. Cutting utility line conviction
Defendant contends the evidence was insufficient to show that he was the person who cut the telephone lines. We agree.
No one saw defendant cut the telephone lines. No one saw him near the location of the telephone lines. No evidence narrowed the time at which the telephone lines were cut to the time when defendant was on the grounds of the apartment complex. Instead, the evidence showed the phones worked before Reyna left her apartment (presumably on September 2) and did not work after the police left on September 3. Although, as the Attorney General argues, defendant had a knife and may have “had the opportunity to sever the telephone lines prior to entering Reyna’s apartment,” other people on the grounds during the undefined interval also had such an opportunity. At most, the evidence creates suspicion that defendant might have cut the telephone lines, but evidence that merely raises a strong suspicion of guilt is insufficient to support a conviction. (People v. Thompson (1980) 27 Cal.3d 303, 324.) Suspicion is not evidence; it merely raises a possibility, which is an insufficient basis for a factual inference. (Ibid.) The conviction in count 1 must be reversed for insufficiency of evidence.
2. Sentencing errors
The trial court imposed full, consecutive terms for counts 5, 6, 8, 9, and 10, pursuant to section 667.6, subdivision (d). The court selected the 4-year middle term for the section 12022.3, subdivision (a) weapon enhancements for counts 5, 6, 8, 9, and 10, and the 10-year high term for count 7. Defendant contends that the court erred in sentencing him to full consecutive terms for counts 5, 6, and 8 and that it was ignorant of its discretion to impose the middle or low term enhancement for count 7.
a. Full consecutive terms under section 667.6, subdivision (d)
Section 667.6, subdivision (d), requires imposition of a full, separate, and consecutive term “for each violation of an offense specified in subdivision (e) if the crimes... involve the same victim on separate occasions.” In 1986, the Legislature amended section 667.6, subdivision (d), to add the following: “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.” The offenses listed in subdivision (e) of section 667.6 include forcible oral copulation and sexual penetration by a foreign object.
The 1986 amendment of section 667.6, subdivision (d), was intended to replace the rule of People v. Craft (1986) 41 Cal.3d 554 (Craft), which construed “separate occasions” to require intervals between sexual assaults during which the defendant temporarily lost or abandoned the opportunity to continue his attack, with “‘a broader, less stringent standard to prove that multiple sex crimes occurred against the same victim on separate occasions.’” (People v. Jones (2001) 25 Cal.4th 98, 104, fn. 2 (Jones).)
A finding of “separate occasions” does not require “a change of location or an obvious break in a perpetrator’s behavior” (People v. Irvin (1996) 43 Cal.App.4th 1063, 1070 (Irvin); Jones, supra, 25 Cal.4th at p. 104), although some courts have rejected the trial court’s conclusion that offenses were committed on separate occasions where the record showed a mere rapid change of position, with no additional facts to support a finding that the defendant had a reasonable opportunity for reflection (People v. Pena (1992) 7 Cal.App.4th 1294, 1299, 1316 [defendant raped the victim, got off her, twisted her by the legs, and orally copulated her, within a matter of seconds; appellate court noted that nothing in the record indicated “any appreciable interval ‘between’ the rape and oral copulation,” but sentence upheld as proper exercise of discretion under § 667.6, subd. (c)]; People v. Corona (1988) 206 Cal.App.3d 13, 16–18 [Attorney General conceded that sexual penetration by a foreign object and oral copulation were not committed on separate occasions, but sentence upheld as proper exercise of discretion under § 667.6, subd. (c)]). The trial court’s conclusion that the crimes were committed on separate occasions will be disturbed on appeal only if no reasonable trier of fact could find that there was a reasonable opportunity for reflection. (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
At the sentencing hearing, the trial court quoted portions of section 667.6, subdivision (d), then stated, “As reflected by the record of the evidence in this case, the court concludes that the circumstances under which the various sexual acts giving rise to counts 5, 6, and 8 through 10 occurred indicates that they were committed on separate occasions for purposes of sentencing pursuant to Penal Code section 667.6 (d). Specifically, the defendant had a reasonable opportunity to reflect on his actions between the various sex acts, but nevertheless resumed his assaultive behavior. [¶] Therefore, I conclude that fully consecutive sentencing is appropriate as to counts 5, 6, and 8 through 10.” The court further noted that it believed fully consecutive sentences were “entirely appropriate” because the crimes involved the threat of great bodily harm disclosing a high degree of cruelty, the victim was particularly vulnerable, and the crimes involved planning and sophistication.
Defendant contends that the trial court erred in sentencing him to full consecutive terms for counts 5 (oral copulation), 6 (same), and 8 (sexual penetration) pursuant to section 667.6, subdivision (d). The prosecutor told the jury that count 5 pertained to defendant orally copulating Reyna. The parties agree that count 6 pertained to the first time that defendant forced Reyna to orally copulate him. Defendant views count 8 as pertaining to the digital rectal penetration and makes no argument regarding sentencing for the digital vaginal penetration conviction. Defendant argues that no reasonable trier of fact could have concluded that he had a reasonable opportunity for reflection between these offenses.
With respect to counts 5 and 6, we agree. Reyna testified that after defendant forced her to masturbate him, he told her that he was going to show her what to do so that she would be able to “do it to him afterwards.” Defendant then orally copulated Reyna, moved to “switch locations” with her, and then forced her to orally copulate him. Thus, defendant planned the two oral copulations in advance, and committed them, as planned, one after another, in quick succession, with merely a quick change of positions separating the two acts. Nothing in the record supports a conclusion that defendant had an opportunity for reflection between the two pre-planned acts. The trial court erred by concluding that counts 5 and 6 were committed on separate occasions. Because the trial court relied solely upon mandatory sentencing under section 667.6, subdivision (d), and did not address discretionary consecutive sentencing under section 667.6, subdivision (c), we must vacate the sentence on one of the two counts and remand for resentencing.
We reject defendant’s contention regarding count 8. Defendant engaged Reyna in conversation about anal sex before inserting his finger into her anus. This conversation demonstrates not only an opportunity for reflection, but defendant’s actual reflection: he wanted to sodomize her, but after hearing her pleas not to do so, he changed his mind and decided to insert his finger in her anus instead. The record fully supports the trial court’s conclusion that the digital penetration offense was committed on a separate occasion.
Defendant also argues that the trial court provided an inadequate explanation of its conclusion that counts 5, 6, 8, 9, and 10 were committed on separate occasions under section 667.6, subdivision (d).
Section 1170, subdivision (c), requires the trial court to “state the reasons for its sentence choice on the record.” But section 667.6, subdivision (d), mandates full, separate, consecutive terms for offenses that occur on separate occasions. The trial court’s determination that section 667.6, subdivision (d), applies is not a sentencing choice, but a determination that the statute applies. Once the trial court determines that section 667.6, subdivision (d), applies, it must impose full, separate, consecutive terms for the offenses to which it applies. No statement of reasons is required for imposition of mandatory consecutive terms under section 667.6, subdivision (d). (Craft, supra, 41 Cal.3d at p. 559; People v. Thomas (1990) 218 Cal.App.3d 1477, 1489.) Defendant relies upon Irvin, supra, 43 Cal.App.4th at page 1071, in which the court stated that “at sentencing a trial court could find a defendant had a ‘reasonable opportunity to reflect upon his or her actions’ even though the parties never changed physical locations and the parties ‘merely’ changed positions. If a court concludes such a finding is appropriate, it must clearly explain its reasoning based upon a dispassionate review of the facts.” Irvin cited no authority supporting its view that the trial court was required to explain its conclusion when sentencing under section 667.6, subdivision (d), and did not attempt to distinguish Craft or Thomas.
b. Trial court’s awareness of its discretion under section 12022.3, subdivision (a)
Section 12022.3, subdivision (a), provides a “3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of” specified sexual offenses, including forcible rape, forcible oral copulation, and sexual penetration by a foreign object. The jury found section 12022.3, subdivision (a) enhancement allegations true for counts 5 through 10, and the trial court imposed 4-year enhancements for counts 5, 6, 8, 9, and 10, and a 10-year enhancement for count 7.
With respect to count 7, the trial court stated the following: “I choose count 7, violation of Penal Code section 261 (a)(2), as the count to impose the state prison for life, and he shall not be eligible for release on parole for 25 years. This sentence is mandatory and I have no discretion to strike the allegation under this section. Even if I did have the discretion to strike the allegation, I would not do so. [¶] An additional ten years is imposed based on the finding of the use of a deadly weapon pursuant to Penal Code section 12022.3. [¶] As to the enhancement pursuant to 12022.3, I believe that sentence must be imposed consecutive to the life sentence pursuant to 667.61 (f). Therefore, the defendant is sentenced to serve an additional and consecutive ten years in state prison as to count 7. If I had the discretion to impose the sentence on this enhancement concurrently or to strike it or to stay it, I would not do so.” Defendant did not object to any aspect of the sentence for count 7.
Similarly, when the court imposed the middle term section 12022.3, subdivision (a) enhancement on counts 5, 6, 8, 9, and 10, it stated, “Further, the court imposes the midterm of the four-year enhancement on each pursuant to Penal Code section 12022.3. [¶] Thus, an additional 20 years, or a total of 50 years regarding counts 5, 6, 8, 9, and 10. [¶] If I had the discretion to strike or stay the Penal Code section 12022.3 enhancement, or impose it concurrently, I would opt not to do so.”
Defendant contends that the trial court was unaware of its discretion to impose the middle or low term for the section 12022.3, subdivision (a) enhancement on count 7. He argues, in essence, that this lack of awareness is shown by the court’s failure to state any reasons supporting its choice of terms for the enhancement, in contrast with the court’s statement of reasons when making other sentencing choices.
For sentence enhancements punishable by one of three terms, section 1170.1, subdivision (d), requires the trial court to state its reasons for its choice of term. (At the time of defendant’s sentencing hearing in 2008, the statute required no explanation if the trial court chose the middle term.) The trial court erred by failing to state its reasons for selecting the high term. But defendant forfeited any claim based upon the court’s failure to state its reasons by failing to object. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant’s attempt to portray the trial court’s error in failing to state its reasons as proof that the court did not understand its discretion is unavailing. Nothing in the record indicates that the trial court did not understand its discretion—indeed, its selection of the middle term for the same enhancement for other counts necessarily demonstrates the court’s awareness that section 12022.3, subdivision (a), provided for three terms, from which the court was required to choose. The choice of a term from a triad set forth in a statute is a commonplace act for a trial judge hearing criminal cases. On a silent record, the trial court is presumed to have been aware of and have followed the applicable law when exercising its discretion, including its statutory sentencing discretion. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.) The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. (Ibid.)
DISPOSITION
The conviction in count 1 (Pen. Code, § 591) is reversed for insufficiency of evidence. The consecutive sentence for count 6 is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: CHANEY, J. JOHNSON, J.