Opinion
NOT TO BE PUBLISHED
James F. Rigali, Judge Superior Court County of Santa Barbara Super. Ct. No. 1125273
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ricardo Alvarenga Salguero pled guilty to two counts of rape (Pen. Code, § 261, subd. (a)(2)) and one count of burglary (§ 459). He also admitted the special allegations that the rapes were committed during a burglary in which he was personally armed with a deadly or dangerous weapon (§ 667.61, subds. (a), (d)(4) & (e)(2)(4)) and that he personally used a deadly weapon (§ 12022.3, subd. (a)).
All statutory references are to the Penal Code.
For each rape, the court imposed a 25 year-to-life term, plus 4 years for the weapon enhancement, for a total of 58 years to life. The court also imposed six years for the burglary, plus one year for the weapon enhancement.
The "one strike" law, as it existed at the time Salguero committed the crimes, requires that we strike one of the 25-year-to-life sentences for rape, plus the attendant 4-year weapon enhancement. (See former § 667.61, subd. (g), as amended by Stats. 1998, ch. 936, § 9.) In all other respects we affirm.
FACTS
On August 14, 2003, Donna S. was house sitting for a friend in Solvang. She was awakened by a loud noise in the early morning. She turned on the lights and saw a man dressed only in briefs. The man wore latex gloves on his hands and a nylon stocking over his face. He was holding a large butcher knife.
The man leapt onto the bed and he and Donna fell on the floor. Donna was on her back. The man pulled up her nightgown and raped her. After a short interval, he turned her over and raped her again. He left after about 20 minutes.
Salguero was arrested in October 2003. He admitted to raping Donna. He said he had been drinking and went to Donna's house to find alcohol. He got a knife from his truck, disrobed on the porch, and entered through a window.
DISCUSSION
I
Salguero contends his two acts of rape can only support a single 25-year-to-life sentence. The Attorney General concedes error.
Salguero admitted that the rapes were committed during a burglary and that he used a dangerous and deadly weapon. The admissions brought the rape convictions within the one strike law, section 667.61, subdivision (a)
At the time Salguero committed the rapes, former section 667.61, subdivision (g), provided in part: "The term specified in subdivision (a)... shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion...." (Stats., supra, ch. 936, § 9.)
Section 667.61 was again amended in 2006. (Stats. 2006, ch. 337, § 3.)
In People v. Jones (2001) 25 Cal.4th 98, 107, our Supreme Court held that for purposes of section 667.61, subdivision (g), "sex offenses occurred on a 'single occasion' if they were committed in close temporal and spatial proximity." The Attorney General properly concedes Salguero committed both rapes in close temporal and spatial proximity. Thus only one 25-year-to-life sentence is appropriate for both rapes. Former section 667.61, subdivision (g) does not, however, prohibit separate sentences for other offenses. At the time Salguero committed the offenses, the subdivision provided in part: "Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law...." (Stats., supra, ch. 936, § 9.)
II
Salguero contends his sentence for burglary must be stayed under section 654. Section 654 prohibits punishment for more than one offense arising from the same act or from an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Whether a course of conduct is divisible depends on the intent and objective of the actor. (Id. at p. 1208.) If all the offenses were incident to one objective, the defendant may only be punished for one offense. (Ibid.) Where, however, the defendant entertained multiple independent criminal objectives, he may be punished for each violation committed in pursuit of each objective. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Here Salguero argues the burglary had a single objective: rape. The Attorney General argues the burglary had a dual objective: rape and the theft of alcohol. The trial court found Salguero had a dual objective. The trial court's finding of separate objectives is affirmed if supported by substantial evidence viewed in a light most favorable to the judgment. (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)
Salguero does not dispute that he entered the house with the intent to commit rape. He also told the police that he went to the house to find alcohol. Thus the trial court's finding that he had two independent objectives in committing the burglary is supported by the evidence.
Salguero argues the evidence shows that he only intended to commit rape. He points to evidence that he admitted he had the intent to rape, he disrobed prior to entry and he attacked Donna immediately after he entered the home. The evidence on which Salguero relies shows that he entered with the intent to commit rape. But it does not contradict the trial court's finding that he also entered with the intent to steal alcohol. Section 654 does not bar punishment for the burglary.
The 25-year-to-life, plus 4-year weapon enhancement sentence for rape, count 1, is stricken. In all other respects the judgment is affirmed.
We concur: YEGAN, J. COFFEE, J.