P. v. Acevedo

Filed 10/29/07 P. v. Acevedo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Sam Ohta, Judge. Affirmed.

Doris M. Frizzell, 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, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________________

Gilberto Acevedo (Acevedo) appeals from the judgment entered following a jury trial which resulted in his conviction of three counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, 288, subd. (a),^[1]three counts of committing a forcible lewd act upon a child under the age of 14 years ( 288, subd. (b)(1), one count of aggravated sexual assault, i.e., forcible rape, on a child under the age of 14 years ( 261, subd. (a)(2), 269, subd. (a)(1)), exhibiting harmful matter with the intent of seducing a minor ( 288.2, subd. (a)), and possession of cocaine (Health & Saf. Code,  11350, subd. (a)). The trial court sentenced Acevedo to a term of 34 years, plus 15 years to life in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that when she was four years old, Alicia A. lived in a home with her mother, her siblings and her mothers brother, Acevedo. On one occasion Acevedo told Alicia A. that, if she came into his room, he would give her a bag of chips. Acevedo took Alicia A. into his room, removed her pants and his clothes and had Alicia A. sit on his lap, facing away from him. Acevedo then attempted to sodomize Alicia A.

On a second occasion, Acevedo again took Alicia A. into his room. He laid her on the bed, got on top of her, touched her buttocks with his penis, then penetrated her vagina with his penis.

When Alicia A. was five years old, she, her mother and her siblings moved to a new home and no longer lived with Acevedo. For the next two years, Alicia A. rarely saw Acevedo. However, when she did have occasion to see him, he would wait until no one was looking, then touch her on her vagina and buttocks over her clothes.

When Alicia A. was eight years old, her aunt, Acevedos wife, brought Alicia A. to Acevedos house so she could spend some time with her cousins. One night, when Acevedos wife was out for the evening, Acevedo woke up Alicia A., carried her to his room, removed his and her clothes and penetrated her vagina with his penis. When Acevedo then attempted to orally copulate Alicia A., she tried to push him away. Acevedo grabbed Alicia A.s wrists and told her it would just take a little while and that it wouldnt hurt. While still holding Alicia A. down, Acevedo then attempted to sodomize her. However, he was interrupted when he heard his wife arrive. Acevedo told Alicia A. to get out of his room and go pretend she was asleep. Alicia A. did not tell anyone about what had happened because she was afraid they would not believe her and she felt dirty.

When she was ten years old, Alicia A. attended her cousins baptism. Acevedo told Alicia A. that her mother had forgotten something at the house, that he was to go get it and that he was to take Alicia A. with him because she would know where to find it. When Alicia A. and Acevedo arrived at the house, Acevedo told her the object he was looking for was in her mothers bedroom. When Alicia A. told Acevedo she did not want to go into that room, he pulled her inside and closed the door. Acevedo pushed Alicia A. down onto her knees, then pulled down his pants and placed his penis on her mouth. When Alicia A. refused to open her mouth, Acevedo placed his thumb and forefinger on her cheeks and forced it open, then put his penis inside her mouth. At some point, Acevedo removed his penis from Alicia A.s mouth and attempted to push her onto the bed. She, however, managed to press[] [her] nails onto his arms and, when he let go of her, she left the house.

Alicia A. was 13 years old when her mother told her to go with Acevedo to pick up her cousin. However, instead of going to pick up Alicia A.s cousin, Acevedo took Alicia A. to his house. After Alicia A. reluctantly entered the house, Acevedo grabbed her by the shoulders and pushed her onto his bed. On the television in the bedroom, Acevedo was playing a pornographic movie. Alicia A. glanced at the television and saw a guy and a girl having sex. Acevedo removed Alicia A.s shorts, pushed up her bra and shirt, then removed his pants. Although Alicia A. attempted to push him away, Acevedo started sucking on [her] breast. After attempting to kiss Alicia A., Acevedo orally copulated her. When Alicia A. protested and attempted to leave, Acevedo got [her on her] wrist and . . . pulled [her] back. Acevedo then got on top of Alicia A. and penetrated her vagina with his penis. Acevedo push[ed his penis] into [her] vagina hard, causing Alicia A. significant pain.

Alicia A. eventually told her best friend, Brian, what Acevedo had been doing to her. Brian told his mother, who contacted authorities.

Acevedo was taken into custody on June 19, 2005. During a search, a police officer discovered a clear plastic baggie containing .57 grams of a powder containing cocaine in Acevedos pants pocket.

On June 20, 2005, Acevedo was interviewed by Los Angeles Deputy Sheriff Ana Tapia (Tapia). Acevedo initially denied inappropriately touching Alicia A. However, when Tapia informed Acevedo that a medical report indicated Alicia A.s vagina had been penetrated, Acevedo told the deputy that, while in a car, he had touched Alicia A. on the vagina, over her clothing. However, Acevedo insisted there had been no penetration. When Tapia then asked Acevedo about the incidents which occurred when Alicia A. was seven and eight years old, he again denied that there had been any penetration, but admitted touching Alicia A. on her vagina, over her clothing. After further questioning, Acevedo told Tapia that he had taken Alicia A. into his bedroom and had rubbed her vagina with his penis, but he denied penetrating her vagina [or] . . . touching her anus with his penis.

With regard to the incident which occurred on the day of the baptism, Acevedo admitted that he had placed his penis in [Alicia A.s] mouth, but [indicated] that it had only been for about a minute and that she [then] got up and walked out of the room. Acevedo did not pursue her. When Tapia related the details of the incident which occurred when Alicia A. went with him to pick up her cousin, Acevedo stated he had put on a pornographic movie to try to get Alicia [A.] in the mood. Acevedo had rubbed his penis on Alicia A.s vagina, then masturbated, ejaculating on her thigh and lower abdomen. Acevedo then admitted that, in addition, he had orally copulated Alicia A. and had done so on one other occasion.

Tapia asked Acevedo about the incidents which occurred when Alicia A. was four years old. Acevedo told the deputy that he would take responsibility for the things that he did, . . . but he could not take responsibility for that because he just could not remember anything that happened. Acevedo stated, I dont remember if it did or didnt happen, I just dont remember.

Stephanie Obiako (Obiako) is a forensics sexual assault nurse examiner. Obiako examined Alicia A. at the Los Angeles County USC Hospital on June 20, 2005. When Obiako examined Alicia A.s genitalia, she found evidence of healed injuries. The examination revealed healed transections or tearing in the hymen which is caused by blunt force trauma. Such injuries are consistent with a history of forcible sexual assault, or someone forcibly inserting something into the vagina. It was Obiakos opinion the injuries Alicia A. suffered were sustained during the course of forcible sexual encounter[s].

2. Procedural History - Sentencing.

The trial court indicated Acevedos conviction of aggravated sexual assault, i.e., forcible rape in violation of section 261, subdivision (a)(2), occurred when Acevedo purportedly took 13-year-old Alicia A. with him to pick up her cousin. For his conviction of the offense, the trial court sentenced Acevedo to the indeterminate term of 15 years to life in prison pursuant to section 269.^[2]

The trial court noted the offenses alleged in counts 4, 5 and 7, forcible lewd acts upon a child under 14 years of age in violation of section 288, subdivision (b)(1), occurred on separate occasions. The trial court indicated Acevedos conviction of count 4 related to an incident where [Alicia A.] slept over at [Acevedos] residence, count 5 pertained to the incident which occurred on the day of Alicia A.s cousins baptism and count 7 related to an incident separated by multiple years. [On that occasion, Acevedo did not pick up Alicia A.s cousin, but instead] took [Alicia A.] to his residence and forcibly orally copulated [her]. The trial court thus determined that, as to those counts, Acevedo was subject to full term, consecutive sentences pursuant to section 667.6, subdivision (d).^[3] Accordingly, for Acevedos conviction of committing a forcible lewd act upon a child as alleged in count 4, the trial court imposed the upper term of eight years in prison. In support of its decision to impose the upper term, the court stated Alicia A. had been particularly vulnerable. As to count 5, the court imposed a consecutive, upper term of eight years in prison, indicating Acevedo took advantage of a position of trust. With regard to count 7, the trial court stated Acevedo had engaged in violent conduct which indicates a serious danger to society, then imposed a consecutive, upper term of eight years in prison. In total, the trial court sentenced Acevedo to 24 years in prison pursuant to the provisions of section 667.6, subdivision (d).

The trial court then addressed the sentences to be imposed pursuant to the traditional determinate sentencing statute, section 1170.1. With regard to Acevedos conviction of committing a lewd act upon a child in violation of section 288, subdivision (a) as alleged in count 1, the court indicated it pertained to the incident when [Alicia A.] was four years old [and Acevedo] placed [her] on his lap and attempted to commit sodomy. As to Acevedos conviction of committing a lewd act in violation of section 288, subdivision (a) as alleged in count 2, the trial court stated it pertained to the incident where [Acevedo] placed [Alicia A.] on a bed and inserted his penis partially into her vagina. The court noted Alicia A. had testified that the two incidents were separated by time. With regard to Acevedos conviction of committing a lewd act upon a child as alleged in count 3, the court indicated the incident occurred `when [Alicia A.] was seven or eight years old [and Acevedo] touched her vagina over her clothing. Because each of these incidents occurred on separate occasions, the trial court determined consecutive sentences were appropriate. Accordingly, for his conviction of count 1, the trial court imposed the mid-term of six years in prison. For his convictions of counts 2 and 3, the court imposed consecutive terms of one-third the mid-term, or two years for each offense, for an aggregate term of 10 years in prison.

For his conviction of count 8, exhibiting harmful matter in violation of section 288.2, subdivision (a), the trial court imposed a mid-term sentence of two years in prison, the term to run concurrently to the terms imposed for counts 1, 2 and 3. For his conviction of possession of cocaine in violation of Health and Safety Code, section 11350, subdivision (a), the trial court imposed a concurrent, mid-term sentence of two years in prison.

In total, the trial court sentenced Acevedo to 34 years, plus 15 years to life in prison.

CONTENTIONS

Acevedo contends: (1) imposition of the upper term for his convictions of the crimes alleged in each of counts 4, 5 and 7 violated the mandate of Cunningham, (2) the trial court erred when it imposed a full term consecutive sentence with regard to count 7 since there was no evidence the crime alleged in that count occurred on a separate occasion from the crime alleged in count 6, (3) imposition of full term, consecutive sentences pursuant to section 667.6, subdivision (d) for his convictions of the crimes alleged in counts 4, 5 and 7 violated the courts decisions in Blakely and Cunningham, and (4) the sentence imposed for the crime alleged in count 8 should have been stayed pursuant to Penal Code section 654.

DISCUSSION

1. AnyCunningham error which may have occurred when the trial court
imposed upper term sentences for Acevedos convictions of counts 4,
5 and 7 was harmless beyond a reasonable doubt.

Acevedo asserts the trial court violated the mandate of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) when it imposed upper term sentences for his convictions of committing forcible lewd acts upon a child under fourteen years of age ( 288, subd. (b)(1)) as alleged in counts 4, 5 and 7. In support of its decision to impose the upper terms, the trial court indicated that Alicia A. was particularly vulnerable, that Acevedo took advantage of a position of trust, and that Acevedo engaged in violent conduct which indicates a serious danger to society.

a. Acevedo did not forfeit his claim by failing to object at trial.

The People assert Acevedo forfeited any right to challenge the upper term sentences because he failed to object to their imposition in the trial court. The contention is without merit.

In People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4, citing People v. Welch (1993) 5 Cal.4th 228, 237-238, the court indicated an objection in the trial court is not required if the objection would have been futile. At the time Acevedo was sentenced, the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) governed. In Black I, the court determined the judicial fact finding which occurred when a judge exercised its discretion to impose an upper term sentence did not implicate a defendants right to a jury trial. (Id. at p. 1254.) Since the trial court was bound by the Black I decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456), trial counsel cannot be faulted for failing to have objected to the imposition of the upper terms on the ground the jury should have found the aggravating factors beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th 825, 837, fn. 4.) Such an objection would have been futile.

b. Any Cunningham error was harmless beyond a reasonable doubt.

In Cunningham, the court, relying on its decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), determined the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 166 L.Ed.2d. at p. 860.) Further, [t]he relevant statutory maximum  . . . is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Ibid., original italics.)

We recognize that none of the factors relied on by the trial court to impose the upper terms involved a prior conviction, were found by the jury or were admitted by Acevedo. Accordingly, imposition of the upper terms did not conform to the mandates of Cunningham and violated Acevedos right to a jury trial. However, it has been determined that failure to submit a sentencing factor to the jury may be harmless under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466]; People v. Sandoval, supra, 41 Cal.4th at p. 838.) In deciding whether the error was harmless, we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (People v. Sandoval, supra, at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.)

In the present case, we are confident beyond a reasonable doubt that a jury would have found that Alicia A. was particularly vulnerable, that Acevedo took advantage of a position of trust, and that Acevedo engaged in violent conduct which indicates a serious danger to society. For purposes of finding a victim particularly vulnerable,  [p]articularly . . . means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. [Citation.] (People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007.) Here, the evidence established that Alicia A., as Acevedos niece, was unprotected and accessible. As Alicia A.s uncle, Acevedo was able to gain access to [Alicia A.] . . . without difficulty. In addition, as the trial court noted, Acevedo, as Alicia A.s uncle, was in a position to take advantage of a position of trust or confidence to [both] commit the [initial] offenses and to continue his assaults of Alicia A. Other family members apparently did not suspect Acevedo was sexually assaulting Alicia A. Finally, the evidence established, and Acevedo does not dispute, that he engaged in violent conduct. As the trial court stated, [Acevedo] has engaged in violent conduct which indicates a serious danger to society. [His] actions show that he had no regard [for] the victims resistance [to] his advances, and that despite that resistance[, he] sexually assaulted the victim.

[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny[, including Cunningham,] any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (People v. Black (2007) 41 Cal.4th 799, 812 (Black II).) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (People v. Sandoval, supra, 41 Cal.4th at p. 839.) Here, we conclude that, had any one of the factors in aggravation relied on by the trial court been submitted to the jury, it would have found that factor true beyond a reasonable doubt. (See Id. at p. 838-839.)

2. The trial court properly imposed a full term, consecutive sentence with
regard to Acevedos conviction of a forcible lewd act upon a child as
alleged in count 7.

The jury found Acevedo guilty of the aggravated sexual assault of a child, i.e., forcible rape, pursuant to sections 261, subdivision (a)(2) and 269, subdivision (a)(1), as alleged in count 6 of the information. The jury also found Acevedo guilty of committing a forcible lewd act upon a child in violation of section 288, subdivision (b)(1) as alleged in count 7. Both offenses pertained to the incident which occurred in March of 2005 when Alicia A. went with Acevedo purportedly to pick up one of her cousins.

With regard to count 6, the forcible rape, the trial court imposed a sentence of 15 years to life pursuant to the provisions of section 269, subdivisions (a)(1) and (b). As to count 7, the trial court sentenced Acevedo to a consecutive upper term of eight years in prison pursuant to section 667.6, subdivision (d). Acevedo contends the trial court erred in imposing the full term, consecutive sentence for his conviction of count 7 because there is no evidence the forcible lewd act alleged in that count and the forcible rape alleged in count 6 occurred on separate occasions.

The People initially contend Acevedo waived any claim of error by failing to object to the imposition of the full term consecutive sentence in the trial court. In People v. Scott (1994) 9 Cal.4th 331, 356, the court held that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. No objection to the imposition of the full term consecutive sentence was made in the present case.

However, if we consider the question, we conclude the trial court committed no error. Subdivision (d) of section 667.6 provides in relevant part: A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or 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. Section 667.6 applies to forcible rape, in violation of subdivision (a)(2) of section 261, and the commission of a forcible lewd or lascivious act in violation of subdivision (b) of section 288. ( 667.6, subd. (e).)^[4]

In People v. Irvin (1996) 43 Cal.App.4th 1063, 1070-1071, the court recognized that [w]hat the trial court must decide is whether the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, 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. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. Sexual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way. Therefore, 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.

In the present case, the trial court noted that the crimes alleged in count 6 and count 7 related to the same incident, but consisted of [t]wo separate acts. The court continued, By the evidence presented in the trial, each of the counts that relate to a violation of Penal Code section 288(b) occurred on separate occasions. [Acevedo], therefore, is subject to mandatory consecutive full-term sentencing under 667.6 (b).^[5]

The trial courts finding, that the crimes consisted of two separate acts and occurred on separate occasions, is supported by the evidence. After Alicia A. reluctantly entered the house, Acevedo grabbed her by the shoulders and pushed her onto his bed. Acevedo removed Alicia A.s shorts, pushed up her bra and shirt, then removed his pants. Acevedo started sucking on [Alicia A.s] breast and, after attempting to kiss Alicia A., orally copulated her. After orally copulating Alicia A., Acevedo had a reasonable opportunity to reflect upon his actions when she attempted to leave. However, instead of letting her go, Acevedo made the conscious decision to grab her by the wrist and pull her back. It was only after having had this opportunity to reflect on his actions that Acevedo then decided to get on top of Alicia A. and forcibly rape her. (See People v. Plaza (1995) 41 Cal.App.4th 377, 384 [Separate offenses occurred when Plaza began the sexual assaults in the bathroom, then, although still restraining the victim, momentarily stopped his sexual assault of the victim to push her into the bedroom.]; People v. Brown (1994) 28 Cal.App.4th 591, 601 [Where the record established the defendants penis kept coming out of the victims vagina and the defendant put his penis back into the victims vagina eight or nine times, the defendants repenetrations were clearly volitional, criminal and occasioned by separate acts of force and separately punishable by consecutive sentences.].)

3. The trial court properly imposed full term, consecutive sentences as to
counts 4, 5 and 7 since any Cunningham error, if it occurred,
was harmless beyond a reasonable doubt.

As previously stated, section 667.6 subdivision (d) provides for full, separate, and consecutive terms for violations of specified offenses if the crimes involve[d] separate victims or involve[d] the same victim on separate occasions. Acevedo contends the trial courts determination the crimes alleged in counts 4, 5 and 7 were committed on separate occasions amounted to a factual finding which, under Cunningham, should have been decided by a jury beyond a reasonable doubt. Accordingly, Acevedo asserts his sentence imposed pursuant to section 667.6, subdivision (d) is invalid. We conclude, although it is unclear whether the mandates of Cunningham and Blakely apply to sentences imposed pursuant to section 667.6, subdivision (d),^[6]in the present case, any Cunningham error, if it occurred, was harmless.

Initially, as we previously indicated, the aggravating factors found by the trial court, that Alicia A. was particularly vulnerable, that Acevedo took advantage of a position of trust, and that Acevedo engaged in violent conduct which indicates a serious danger to society, support imposition of upper term sentences as to counts 4 (pertaining to the incident during which Alicia A. slept over at Acevedos residence), 5 (pertaining to the incident which occurred on the day of Alicia A.s cousins baptism) and 7 (pertaining to the incident when Acevedo orally copulated Alicia A. after taking her to his residence instead of to pick up her cousin). Although the factors in aggravation were not submitted to the jury, it is clear that, in view of the facts presented in this case, had the factors been so submitted, the jury would have found them true beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th at p. 839 [[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.].)

Neither did the trial court err when it imposed the full term sentences consecutively. As discussed above, the forcible rape alleged in count 6 and the forcible lewd act upon a child (forcible oral copulation) alleged in count 7 occurred on separate occasions.

In addition, the crimes alleged in counts 4 and 5 were committed on occasions separate from those on which the crimes in count 6 and count 7 were committed. The jurys verdicts indicate that Acevedo committed the offenses alleged in counts 4 and 5 on or between December 19, 2000 and December 18, 2002. The jurys verdicts indicate that, as to counts 6 and 7, Acevedo committed the alleged offenses on or between March 1, 2005 and March 31, 2005.

Finally, the evidence clearly establishes that the crime alleged in count 4 occurred on an occasion separate from that on which Acevedo committed the crime alleged in count 5. Alicia A.s uncontradicted testimony established that, when she was eight years old, her aunt, Acevedos wife, brought her to Acevedos house so that she could visit with her cousins. It was on that occasion that Acevedo woke up Alicia A. and carried her to his room, where he forcibly penetrated her vagina with his penis and orally copulated her. Alicia A.s uncontradicted testimony established that she was 10 years old when she attended her cousins baptism. It was on that occasion that Acevedo took Alicia A. to her mothers home and forcibly placed his penis in Alicia A.s mouth. Based on this evidence, we can presume that, had the question been submitted to the jury, it would have found that the offenses alleged in counts 4 and 5 occurred on separate occasions. (See People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.)

We conclude beyond a reasonable doubt that, had the jury considered the question, it would have found, beyond a reasonable doubt, that the offenses alleged in counts 4, 5 and 7 occurred on separate occasions. Any Cunningham error which might have occurred was harmless and the trial court properly imposed full term consecutive sentences pursuant to section 667.6, subdivision (d). (People v. Sandoval, supra, 41 Cal.4th at pp. 838-839.)

4. Imposition of a separate sentence for Acevedos conviction of exhibiting
harmful matter with the intent of seducing a minor did not violate
section 654.

Acevedo contends the trial court erred when it imposed a concurrent, midterm sentence of two years in prison for his conviction of exhibiting harmful matter with the intent of seducing a minor in violation of section 288.2, subdivision (a). He asserts the showing of a pornographic film was part of an indivisible course of conduct committed with a single intent and objective and, accordingly, imposition of the sentence should have been stayed pursuant to section 654.

Section 654 provides in relevant part: [A]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Section 654 . . .  precludes multiple punishment for a single act or . . . course of conduct comprising indivisible acts. Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor. [Citations.] [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [Citation.] [Citations.] However, if the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.] [Citations.] (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

In the present case, Acevedo indicated he had put on a pornographic movie to try to get [Alicia A.] in the mood to have sex with him. However, based on Acevedos conduct, it can be reasonably inferred he intended to have sexual relations with Alicia A. regardless of whether she was in the mood. Accordingly, Acevedo harbored multiple criminal intents. He played the pornographic film with the intent of seducing Alicia A., while at the same time intending to sexually assault her whether or not the film made her receptive to his advances. Under these circumstances, the trial court properly imposed the two year, concurrent sentence for Acevedos conviction of exhibiting harmful matter with the intent of seducing a minor.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 269 provides in relevant part: (a) Any person who commits any of the following acts[, including forcible rape in violation of section 261, subdivision (a)(2),] upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child . . . .  [] (b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life. . . .  

^[3] Subdivision (d) of section 667.6 provides in relevant part: A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e)[, which includes section 288, subdivision (b),] if the crimes involve separate victims or involve the same victim on separate occasions. . . .

^[4] Acevedo contends it makes no difference that he was sentenced for his conviction of forcible rape pursuant to section 269, subdivision (a)(1) rather than section 667.6, subdivision (d). Referring to the courts decision in People v. Jimenez (2000) 80 Cal.App.4th 286, 290-292 (Jimenez), Acevedo asserts the rule that full term consecutive sentences only may be imposed if the offenses were committed on separate occasions still applies. In Jimenez, the court determined that, although a violation of section 269 is not listed as a qualifying offense in subdivision (e) of section 667.6, if one commits one of the predicate offenses listed in section 269, and that same predicate offense is also listed in subdivision (e) of section 667.6, in committing the predicate offense, one necessarily has been placed within the provisions of section 667.6, subdivision (d). The Jimenez court concluded that section 667.6, subdivision (d) and section 269 are cumulative, not alternative, to each other. (People v. Jimenez, supra, 80 Cal.App.4th at p. 292.)

^[5] Although the transcript indicates the trial court referred to subdivision (b), it is clear from the context of its statement that the court intended to refer to subdivision (d).

^[6] On August 8, 2007, in case number S152523, the California Supreme Court granted review of People v. Diaz, previously published at 150 Cal.App.4th 254 (Diaz). In Diaz, the court noted that, to impose a sentence pursuant to section 667.6, subdivision (c), the rules of court required only a statement of reasons for its sentencing choice, not findings of fact. The court reasoned it followed that, [b]ecause the trial court had the discretion under section 667.6, subdivision (c) to sentence Diaz to full consecutive sentences based on the facts encompassed by the verdict alonewithout making any additional findings of factthe statutory maximum Diaz faced for purposes of Apprendi, supra, 530 U.S. 466, 120 S.Ct. 2348, Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, and Cunningham, supra, 127 S.Ct. 856, was a full consecutive term on [the relevant counts]. [Citation.] Therefore, when the trial court made a finding of separate occasions under section 667.6, subdivision (d), it did not increase[ ] the penalty for [the] crime[s] beyond the prescribed statutory maximum. [Citation.] As the courts factual finding did not raise Diazs potential punishment beyond that to which he was already subject based on the verdict alone, the courts failure to submit the question of separate occasions to the jury did not violate the Sixth Amendment. [Citation.] (Id. at p. 269.)