Opinion
A133702
02-20-2013
THE PEOPLE, Plaintiff and Respondent, v. PAUL VERNON SULLENGER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR569186)
Appellant Paul Vernon Sullenger was found guilty by a jury of first degree burglary (Pen. Code, § 459-count 1); criminal threats (§ 422-count 2); forcible oral copulation (§ 288a-count 3); sexual battery by restraint (§ 243.4-count 4); assault with intent to commit rape, and oral copulation during commission of burglary (§ 220-count 5); and attempted burglary (§§ 664/459-count 6). As to counts 3 and 4, the jury also found true an allegation that the victim was over the age of 65. At a bifurcated trial, the court found that appellant's two prior Texas convictions were true and constituted strikes.
Statutory references are to the Penal Code.
At sentencing, the court imposed 25 years to life on count 3, tripled the sentence under the Three Strikes law (§ 1170.12), and then added a one-year enhancement pursuant to section 667.9. The court also imposed a consecutive 25 years to life sentence on count 2. On count 6, the court imposed a consecutive 25 years to life sentence. Finally, on counts 1, 4, and 5, the court imposed 25 years to life sentences which were stayed under section 654. Notice of appeal was filed November 4, 2011.
In addition to this appeal, appellant has filed a related petition for writ of habeas corpus, which we deny by separate order. (In re Sullenger, A137127.)
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Appellant does not challenge the sufficiency of the evidence supporting the charged offenses. He argues only that (1) there was insufficient evidence to support the trial court's finding that the two Texas priors constituted strikes, and (2) that the court erred in imposing a consecutive sentence on count 2, criminal threats. A. Facts Relating in the Charged Offenses
1. Counts 1-5
At approximately 6:00 p.m. on the evening of November 2, 2008, the victim, referred to at trial as Jane Doe, was living alone in her one-bedroom apartment in Rohnert Park. She was sitting on her couch in the living room when she heard a "thump" sound in her bedroom. She went to the bedroom door and saw appellant. Appellant grabbed the victim and threw her on the bed. He took a pillow and placed it over her face. He threatened her with harm if she talked and did not cooperate. He then removed the victim's clothing and attempted to penetrate her vagina but was unable to maintain an erection. He continued to sexually assault the victim in various ways but was still unable to maintain an erection. After about 45 minutes, appellant got up and "dove" back out the window which he had originally entered. The victim was warned by appellant not to call the police.
At the time of the assault, the victim was 81 years of age. DNA samples from the victim's body matched appellant's profile.
2. Count 6
At around midnight on June 20, 2009, Jane Doe, the same victim as in counts 1-5, was awakened by her dogs barking outside her bedroom window. She looked outside and saw a man trying to force open the window with his knee. The man had a knife with which he cut out the screen. When Doe screamed, the man fled. Fingerprints from a chair in the backyard matched the appellant's. B. The Trial Court Properly Found the Two Texas Priors to be Strikes
A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in this state. (§ 667, subd. (d)(2).) In determining whether an offense qualifies as a strike, the trier of fact may look to the entire record of conviction to determine the substance of the prior foreign conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 354-355; People v. Rodriguez (2004) 122 Cal.App.4th 121, 128-129.) The task of the reviewing court is to determine if the prior conviction includes all the elements of a serious felony. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
With respect to the Texas residential burglary conviction, appellant stipulated, at the time he entered his guilty plea, that he entered the "habitation" of Ms. R., the owner and victim, with the intent to commit sexual assault, and that he digitally penetrated the victim's vagina and anus. The assault took place "then and there." The residence, unfortunately for the victim, was "inhabited" by her at the time of the burglary, and the trial court so found based on the record of conviction before it.
Appellant also contends that with respect to the Texas sexual assault prior, the Texas statute lacks the requirement of lascivious intent. As heretofore discussed, the trial court may look to the entire record of conviction of the prior crime, including any admission or stipulation by appellant, to determine if the prior conviction constitutes a strike. Intent is established, in most cases, by reviewing the conduct involved. (People v. Martinez (1995) 11 Cal.4th 434, 445.) Here, the record of conviction established that appellant broke into a residence and digitally penetrated the occupant's vagina and anus, which he accomplished by force and threats. These facts were clearly sufficient to support a conclusion that appellant possessed the requisite lascivious intent, and the trial court's finding of a strike must be upheld. C. The Trial Court Did Not Misunderstand Its Discretion to Impose a Concurrent Sentence on Count 2
Appellant finally contends that the trial court, in imposing a consecutive sentence on count 2, failed to understand and exercise its discretion to impose a concurrent term. The record belies this contention.
In sentencing appellant to a consecutive term on count 2, the court stated: "When addressing the concurrent versus consecutive sentencings, I have read and reviewed both—both motions filed in this case and at this point under [California Rules of Court] rule 4.425 the court is going to sentence consecutively, that the crime in count II occurred following the commission of the crime in count III, it involved a separate threat of violence. As such, consecutive sentence will be ordered."
This record clearly establishes that the trial court understood that it had discretion to impose a concurrent or consecutive term on count 2; cited rule 4.425 of the California Rules of Court concerning "Criteria affecting concurrent or consecutive sentences"; and stated the reasons for imposing a consecutive term. In short, the record demonstrates the exercise of discretion by the trial court, and no abuse of that discretion.
Judgment affirmed.
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Reardon, J,
We concur: _____________
Ruvolo, P.J.
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Rivera, J.