Opinion
E050685
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. RAFAEL SOLORIO, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF025993)
OPINION
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part with directions.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood, and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Rafael Solorio (defendant) appeals his conviction for multiple sexual offenses against a single victim. He contends that the evidence was insufficient to support his conviction on both of two counts of rape and that the court erred in imposing consecutive sentences. We conclude that substantial evidence supports the verdict as to both counts of rape. We also conclude that the court's decision to impose consecutive sentences is supported by the evidence as to all counts except count 5. We will remand for resentencing on count 5.
In his opening brief, defendant asserted that the court erred by failing to instruct the jury on attempted rape as a lesser included offense. After the Attorney General pointed out that the instruction was given, defendant withdrew his contention. Consequently, we do not address that contention.
PROCEDURAL HISTORY
Defendant was charged with the following offenses, all committed on June 5, 2008, against the same victim: forcible rape (counts 1 & 4; Pen. Code, § 261, subd. (a)(2)); forcible penetration with a foreign object (count 2; § 289, subd. (a)(1)); and forcible oral copulation (counts 3, 5 & 6; § 288a, subd. (c)(2)). The information alleged the use of a deadly weapon, a knife, in connection with all counts within the meaning of sections 12022, 12022.3, 12022.5 and 667.61, subdivision (e)(4), and alleged one prior strike conviction.
All statutory citations refer to the Penal Code.
A jury found defendant guilty on all counts as charged and found the knife use allegations true. Defendant admitted the strike prior.
The court imposed consecutive terms of 15 years to life on all counts, doubled. The court dismissed the deadly weapon enhancements because use of the knife was the basis for the enhanced 15-to-life terms.
Defendant filed a timely notice of appeal.
FACTS
Jane Doe was a Tupperware consultant in Riverside County. Beatrice Palacios was a customer. Defendant was Palacios's "common law" husband, and Doe had met him at Tupperware functions before June 5, 2008.
On June 5, 2008, at approximately 11:00 a.m., Doe received a telephone call from defendant. He said that Palacios needed Tupperware catalogues and asked her to come to their new apartment in Temecula. He gave her the address and directions. Doe told her husband and her neighbor, Connie, where she was going, and left around noon.
When Doe arrived at the apartment, defendant answered the door. He said Palacios had a question for her but was in the bathroom. He asked Doe to come in and wait. When Doe stepped into the apartment, defendant pushed her to the floor and took her purse. He had a knife in his hand. He demanded money, but Doe said she didn't have any cash. Defendant then told her to go to the bedroom.
In the bedroom, defendant ordered Doe to put on some black lingerie which was on the bed. Doe complied because she was afraid; defendant still had the knife. Defendant forced her to perform oral sex on him and to straddle him. His penis penetrated her vagina while she was straddling him.
Defendant took Doe into the living room and made her straddle him again on the couch. He forced her to perform oral sex on him several times. Doe went to the bathroom at one point and vomited. He forced her to perform oral sex on him again in the bathroom.
Defendant made Doe lie down on the floor outside the bathroom. He tried to get on top of her, but she pushed him away and did not let him enter her. He did insert his fingers into her vagina more than once during that portion of the incident.
Doe and defendant returned to the bedroom. Doe told defendant that her husband would be angry if she was late and that he would come looking for her. Defendant wanted her to perform oral sex on him again. She refused because she couldn't take it anymore. He threatened to kill her, and she "took a chance" and told him that he could. She offered to take a shower and said she would not tell anyone. He told her he would kill her and her family if she told, and he let her leave.
Doe drove home. On the way, she called her neighbor, Connie, and asked Connie to meet her at her house. Once she got home, she told Connie what had happened. Connie called Doe's husband, and her husband called the police.
Doe told sheriff's personnel some details of what had happened. She was crying and shaking and did not want to be touched.
Deputies went to defendant's apartment around 2:00 p.m. and arrested him. Detective Guzman met Doe at the hospital sometime after 3:00 p.m. Doe was very upset and crying. When Guzman showed her a photograph of defendant, Doe vomited. She identified him as the person who had raped her. She provided Guzman with specific details about the assault.
Detective Rice searched defendant's apartment. He found a Tupperware catalogue in the kitchen. Doe had said that at some point during the assault she saw naked women on defendant's television. Rice turned the television on and found that it was tuned to the Playboy channel. He found thong panties in a corner of the bedroom and a wet towel in the hallway bathroom. Rice had not been told that a knife had been used and did not look for one. Detective Guzman later found several kitchen knives which met the description Doe had given him, i.e., a small serrated kitchen knife.
Detective Guzman interrogated defendant that evening. The recorded interrogation was played for the jury. Defendant admitted sexually assaulting Doe, but denied using a knife during the incident.
Defendant wrote letters of apology to Doe and her husband and to his wife. He did not present any defense evidence at trial.
LEGAL ANALYSIS
1.
SUBSTANTIAL EVIDENCE SUPPORTS THE JURY FINDING OF TWO
SEPARATE ACTS OF RAPE
Defendant contends that there is insufficient evidence that he committed two separate acts of rape. Reviewing the entire record in the light most favorable to the verdict, we conclude that there is reasonable, credible evidence of solid value, such that a reasonable trier of fact could have found defendant guilty of two counts of rape, beyond a reasonable doubt. (See People v. Johnson (1980) 26 Cal.3d 557, 576, 578.)
Defendant focuses solely on the victim's testimony to contend that she did not describe more than one instance of sexual intercourse. Doe testified, first, that the second time she and defendant were in the bedroom, defendant made her straddle him and that his penis went into her vagina. She did not recall whether they had intercourse the first time they were in the bedroom. She then testified that in the living room, defendant made her straddle him on the couch, "like I described before." She did not explicitly state that an act of intercourse took place. She later testified that defendant also made her straddle him on a chair in the living room, "the same way [she] described in the bedroom," and that she was required to straddle him again in the bathroom. She did not explicitly say that an act of intercourse took place on either occasion. In the hallway outside the bathroom, defendant straddled her, but she pushed him away "trying to not let him enter" her. She said he penetrated her vagina with his fingers, but did not describe an act of intercourse.
We agree that this evidence is ambiguous as to whether an act of sexual intercourse took place either during the first incident in the bedroom or in the living room. However, Detective Guzman, who interviewed Doe at the hospital shortly after the incident, testified that she told him that an act of oral copulation and an act of sexual intercourse took place on the sofa in the living room and that an act of oral copulation and an act of sexual intercourse took place on the chair in the living room. She also told him that an act of sexual intercourse took place the first time she and defendant were in the bedroom. That is sufficient evidence to support the verdicts on two counts of rape.
2.
IMPOSITION OF CONSECUTIVE SENTENCES IS SUPPORTED BY
SUBSTANTIAL EVIDENCE EXCEPT AS TO COUNT 5
The trial court imposed consecutive sentences on all six counts. Defendant contends that this was error because all of the offenses were committed during the same occasion within the meaning of section 667.6, subdivision (d) (hereafter section 667.6(d)), or, in the alternative, because counts 1, 5 and 6 all occurred during the same occasion.
Defendant was charged and sentenced under section 667.61. Section 667.61 provides for a mandatory sentence of 15 years to life for specified sexual offenses, including those for which defendant was convicted, if they were committed under specified circumstances, including with the use of a deadly or dangerous weapon. (§ 667.61, subds. (b), (c)(1), (c)(5), (c)(7), (e)(3), (i).) Section 667.61, subdivision (i) provides that, "the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6."
Section 667.6(d) provides, in part, "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." We review a finding that crimes were committed on separate occasions within the meaning of section 667.6(d) under the substantial evidence standard. Accordingly, we reverse only if no reasonable trier of fact could have decided, based on the entire record, that the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
In People v. Jones (2001) 25 Cal.4th 98, 104, the California Supreme Court summarized case law construing the "separate occasions" requirement of section 667.6(d) as follows: "Under the broad standard established by . . . section 667.6, subdivision (d), the Courts of Appeal have not required a break of any specific duration or any change in physical location. Thus, the Court of Appeal herein cited People v. Irvin (199[6]) 43 Cal.App.4th 1063, 1071 , for the principle that a finding of 'separate occasions' under . . . section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: '[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.' Similarly, the Court of Appeal in People v. Plaza (1995) 41 Cal.App.4th 377, 385 , affirmed the trial court's finding that sexual assaults occurred on 'separate occasions' although all of the acts took place in the victim's apartment, with no break in the defendant's control over the victim. (But see People v. Pena (1992) 7 Cal.App.4th 1294, 1316 [defendant's change of positions between different sexual acts was insufficient by itself to provide him with a reasonable opportunity to reflect upon his actions, 'especially where the change is accomplished within a matter of seconds']; People v. Corona (1988) 206 Cal.App.3d 13, 18 [holding, after the respondent implicitly conceded the point, that the trial court erred in imposing consecutive sentences for different sexual acts when there was no cessation of sexually assaultive behavior 'between' acts].)" (People v. Jones, supra, 25 Cal.4th at pp. 104-105.)
In People v. Jones, supra, the issue was not the application of section 667.6(d) to the facts but rather whether under the version of section 667.61 which was then in effect, the Legislature intended courts to apply the analysis provided for in section 667.6(d). (People v. Jones, supra, 25 Cal.4th at pp. 103-107, discussing former § 667.61, subd. (g).) Section 667.61 has been amended since the date of the opinion in People v. Jones and now explicitly requires application of the section 667.6(d) analysis. (See § 667.61, subd. (i).)
Here, the trial court reasonably found that defendant had time to reflect between at least some of the sexual acts. The cessation of sexual assaults while defendant moved Jane Doe from one room to another clearly provided him an opportunity reflect on his actions. The prosecutor relied on acts of intercourse committed in the bedroom and in the living room as the basis for counts 1 and 4. He relied on one act of oral copulation in the bedroom, one in the living room and one in the bathroom for counts 3, 5 and 6. Consequently, substantial evidence supports the finding that counts 1 and 3 (rape and oral copulation in the bedroom) were committed on a separate occasion from counts 4 and 5 (rape and oral copulation in the living room), and that all four offenses were committed on a separate occasion from count 6 (oral copulation in the bathroom) and from count 2 (digital penetration in the hallway). Counts 2 and 6 were committed on separate occasions from each other as well. Accordingly, imposition of at least four consecutive terms is supported by the evidence.
Because there were other acts of intercourse and oral copulation, according to the testimony, we cannot be certain whether the jury actually relied on the acts chosen by the prosecutor to support each count. However, under substantial evidence review, we view the record in the light most favorable to the judgment. (People v. Johnson, supra, 26 Cal.3d at p. 578.)
The record also supports a finding that the oral copulation and rape committed in the bedroom were committed on separate occasions. Although Doe's testimony concerning the first incident in the bedroom was vague, as we have previously discussed, her description of the incident to Detective Guzman immediately after the assault was not. She told Guzman that when they first went in to the bedroom, defendant forced her to perform oral copulation on him. However, she said that she was so nervous because of the knife in defendant's hand that she could not concentrate on what she was doing. She eventually persuaded him to put the knife down. She testified that he put it under the bed. It is reasonable to infer that the act of intercourse took place after that. Defendant certainly had time to reflect on his actions while Doe was asking him to put the knife away. He did so, and then resumed the sexual assault. Accordingly, consecutive sentences on counts 1 and 3 are supported by substantial evidence.
The evidence concerning the incidents in the living room is more problematic. The record shows that defendant made her orally copulate him and straddle him for intercourse on a sofa and on a chair. The record is not sufficiently explicit to allow a rational conclusion as to whether each pair of acts occurred in rapid succession or was interrupted by conversation, as in the bedroom, or whether for any other reason defendant did or did not have a reasonable opportunity to reflect between the cessation of one act and the commission of the next. The trial court's reason for finding that all of the offenses were committed on separate occasions was that Doe was pleading with defendant throughout the incident to let her go. It is true that Doe testified that she repeatedly pleaded with defendant. Neither she nor Detective Guzman testified that she did so between the acts on the sofa or between the acts on the couch. Consequently, we cannot conclude that the evidence provides a rational basis for concluding either that defendant did or did not have a reasonable opportunity to reflect between the crimes which constitute counts 4 and 5.
If defendant had been convicted of each of the paired acts of oral copulation and rape, i.e., one pair on the sofa and one pair on the couch, there would be no question of the sufficiency of the evidence that defendant had a reasonable opportunity to reflect between the two pairs of sexually assaultive acts. However, the district attorney chose to charge defendant with only one rape and one oral copulation in the living room, and the jury was required to decide unanimously which acts constituted the charged offenses.
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In the absence of substantial evidence to support the trial court's finding of separate occasions, section 667.6(d) and section 667.61, subdivision (i) do not mandate that the sentences imposed on counts 4 and 5 be consecutive to each other. As we have previously discussed, the sentence imposed on count 4 must run consecutive to the sentence imposed on count 3. However, the sentence on count 5 can be concurrent with or consecutive to count 4. Accordingly, we will remand the cause for resentencing to allow the trial court to exercise its discretion to impose a consecutive or concurrent sentence on count 5. (See People v. Pena (1992) 7 Cal.App.4th 1294, 1316-1318.) If the court chooses to impose a consecutive sentence on count 5, it must state the factual basis for its sentencing choice. (Ibid.)
DISPOSITION
The judgment is reversed insofar as it imposes a consecutive term on count 5. The judgment is otherwise affirmed.
The cause is remanded for reconsideration of the sentence imposed on count 5. The trial court is directed to conduct a new sentencing hearing within 60 days after the date on which this opinion has become final.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Hollenhorst
Acting P.J.
Codrington
J.