Defendant then told the victim he wanted to have sex. He took off his pants. She refused several times. The victim tried to stop him by struggling with him. Defendant inserted his penis into her and moved back and forth until he ejaculated. At some point, he unsuccessfully attempted to penetrate her anus. Afterward, they both put their clothes back on. The victim was both mad and afraid.

They began talking again; defendant told the victim he wanted her to have sex again. She told him she did not want to. Defendant started calling her names and accused her of having sex with other people. He kept trying to pull down her leggings again. The victim pushed his hands away. Eventually, defendant successfully removed her leggings and exposed her vagina. He pulled his pants down and inserted his penis into her vagina again, thrusting in and out until he ejaculated. Defendant was rough and forceful. The victim gave in because she thought if she did not it would be worse and she would get it over with sooner: “The fighting, the forced sex, the yelling, the in fear of the whole thing, if he’s going to snap and hit me.”

The People played the victim’s recording to the jury. On the recording, the victim can be heard saying: “I don’t wanna do this. . . . I don’t wanna have sex.” “No. I don’t wanna do anything.” Defendant says: “I’m trying to check you out.” The victim responds: “I don’t wanna be checked out. Just leave me alone.” “I’m not getting in doggy style. No, I’m not. I’m not assuming a sexual position for you.” Defendant says: “I said I wanna see pussy and ass. So, get in doggy style, I’ll pull your pants down real quick, and then that’s it.” The victim responds: “I don’t wanna get in doggy style, that’s a fucking sex position. [¶] No.” Defendant replies: “Get in doggy style.” “Get in doggy style. Let’s go! You’re procrastinating, it could’ve been over with already. Go. Get in doggy style. Get in doggy style. Look at this fake ass shit like, you talking to me? Get in doggy style.”

The victim repeatedly tells defendant she does not want to have sex with him; she tells him to get off of her: “I don’t wanna do it. Stop.” “Don’t do it. I don’t want to.” She tells defendant she does not want to take her clothes off. She can then be heard exclaiming: “Stop, [defendant]. . . . Stop! Stop. Stop. . . . Ouch. Ow!” “No. Ow! Ow . . . ! Ow. No. Get off me. . . . Ouch. Ow. Ow.”

After the incident, defendant asks the victim: “So did you let me?” The victim responds: “No, stupid. Do you think I did.” She repeatedly denies acquiescing to sexual intercourse. Defendant says: “That’s why I popped you in your fucking face, man.” The victim then repeatedly asks defendant to take her home. Defendant repeatedly calls the victim profane names. He says: “I need to slap you more.”

Defendant starts telling the victim to take her clothes off again. The victim repeatedly refuses: “Don’t touch me. Don’t fucking touch me. Ow! Please stop. [¶] Please, I’m begging you.” “I don’t want to touch you no more.” Defendant says: “I’m getting in.” The victim responds: “No, I’m not letting you fuck me no more! I didn’t wanna do it the first time. Leave me alone.” She repeatedly tells him to leave her alone again. The victim repeatedly tells him to leave her clothes alone “because I don’t want to do nothing.” She repeatedly tells him “No.” The victim says: “When a girl says no, it means no.” She can then be heard repeatedly saying “Ow!” Defendant asks: “Why you said ow for?” The victim responds: “Cause it hurts, and I don’t wanna do it.” She can then be heard crying.

The victim testified she then called 911, but placed the phone in her bra with the call open; she did not speak to the dispatcher; she hoped they would send out an officer. The People played the recording of the 911 call to the jury. Defendant repeatedly calls the victim numerous profane names, including “fucking faggot” and “bitch ass traitor.” He repeatedly asks her for money. Defendant continually accused the victim of sleeping with other men.

Defendant said: “I ought to slap the fuck out of you.” “I’m going to punch you in your fucking nose.” The victim says: “[I] didn’t even want to have sex with you . . . .” Defendant responds: “You don’t want to have sex with me?” The victim replies: “No. You know I didn’t.” Defendant says: “If I didn’t have feelings for you, right, I wouldn’t have slapped you.” The victim says: “You [get] me in the middle of nowhere. You slap me three fucking times, and you attack me.” She says: “You slapped me in the face two times.” Defendant responds: “True.” Defendant says: “I slapped you in the face, not because I’m violent.” The victim responds: “You slapped me in my face three times for nothing.”

An officer testified that he responded to an open cell phone, 911 call wherein a struggle could be heard. At some point, they were able to identify the subscriber of the cell phone number as the victim. Around an hour after the initial call, he arrived in an area around Lytle Creek and Interstate 15 and contacted the victim and defendant after conducting a traffic stop. The victim appeared frightened and nervous. “She was shaking. She was frightened.”

The victim told the officer her boyfriend slapped her three times. “Her left cheek area appeared a little swollen.” It became “a little more swollen” over the course of several hours. “Towards the end of that conversation, she told me that she was raped.” She indicated the whole incident occurred “‘over there,’” appearing to allude to the foothills alongside Lytle Creek and Interstate 15. The victim told the officer she had recorded the incident. The victim was later transported to the hospital for a sexual assault examination.

The People played a video of the officer’s body camera. In the video, the victim tells the officer defendant “slapped me three times.” She tells him defendant “tried” to force her to have sex: “He made me do it in the back of the car.” She says: “I don’t wanna [charge him] for rape. I rather just for him slapping me.”

The officer says: “From the information you’re telling me, it does not sound approved.” The victim responds: “I don’t know if he didn’t take me serious, cause I was saying no. I really don’t know. I don’t know. Some people think that just because you’re with them, that they have a right to do that.” She told defendant: “No. I don’t want to do it.” “I tried to stop him. I tried to stop him. I told him it hurts . . . I said I

don’t want to do it in the car, I don’t want to do it here. I was saying different things to make him stop cause I didn’t want to do it. I didn’t really want to do it. I didn’t.”

A sexual assault nurse examined the victim that evening. The victim identified defendant as the perpetrator of the assault. She said he hit her with an open hand. The victim said defendant threatened to beat and kill her after slapping her, but before she began recording. She said he inserted his penis in her vagina and there was some pain. The victim said defendant tried to insert his penis into her anus. She said there was no kissing and that he ejaculated into her vagina

The nurse did not notice any facial injuries. However, she observed injuries to the vicitm’s labia minora, fossa navicularis, posterior fourchette, and perihymenal tissue or vestibule. The nurse’s findings were consistent with the history relayed to her by the victim, i.e., “penetration by a penis, and that my findings on the injuries that I saw were consistent with blunt-force penetration injury.” The injuries she noted could have occurred during consensual sex or due to poor hygiene.

Defendant testified that he did not rape the victim. They had consensual sex even though he acknowledged the victim repeatedly said she did not want to do it; instead, the victim physically initiated it.[3] Defendant asked if he could “check” her to “see if she was

having sex with anyone”; she allowed him to do so even though she said she did not want him to; he did not put his fingers inside her, but just looked. He never slapped her. Defendant could not recall admitting to slapping her as recounted in the tapes. He initially lied to the officer that he and the victim did not have sex because he was afraid he was going to be charged with having sex in the foothills. Defendant admitted calling the victim profane names and telling her: “‘I’m going to punch you in your fucking nose.’” Defendant admitted suffering a prior conviction for felony domestic violence on a girlfriend on April 22, 2015.

The officer testified defendant initially denied having sexual intercourse with the victim that day. Later, at the police station, defendant told the officer they had sexual intercourse twice that day.

The People charged defendant with corporal injury to a cohabitant after a prior conviction for cohabitant abuse (count 1) and two counts of forcible rape (counts 2 & 3). On December 6, 2017, the jury convicted defendant on counts 1 and 3, but found defendant guilty of the lesser included offense of simple battery on the charged count 2 offense. Defendant admitted the prior conviction for cohabitant abuse.

In the probation officer’s report filed on January 23, 2018, the officer noted defendant had suffered prior convictions for misdemeanor carrying a concealed weapon on June 6, 2007; misdemeanor driving with a suspended license on June 15, 2010; misdemeanor presenting false identification to an officer, misdemeanor driving with a suspended license, and misdemeanor taking a vehicle without the owner’s consent on April 2, 2010; and felony corporal injury on a cohabitant on April 22, 2015.[4] Defendant had previously violated the terms of his probation which had been revoked and reinstated.

The probation officer noted there were no mitigating circumstances. He noted that there were five aggravating circumstances: (1) the crime involved great bodily harm; (2) defendant took advantage of a position of trust; (3) defendant’s prior convictions as an adult were numerous and of increasing seriousness; (4) defendant was on a grant of probation at the time the crime was committed; and (5) his prior performance on probation was unsatisfactory. Defendant showed no remorse. The officer recommended a sentence of nine years four months.

On the date set for sentencing, January 30, 2018, defendant requested a continuance to hire a new attorney because he felt he was being falsely imprisoned. Defense counsel informed the court defendant wanted to hire a new attorney to file a motion for new trial prior to sentencing. The court initially denied the request, noting that defendant had failed to request a continuance at two prior appearances after the jury rendered the verdicts, but before the date set for sentencing. Over the People’s objection, the court later granted the continuance on defense counsel’s request: “[W]hat that means is that: One continuance. You need to get that attorney by the next time, or the Court’s not going to continue this again for that reason.” “[I]f we’re in the same situation we are today, I would not continue it again.”

At the date set for the continued sentencing, defendant requested an additional continuance. The court observed that “the last day was January 30th, and then actually it had been continued from January 9th, which was the original scheduled date. So it’s been over a month without any name or any—if you gave me a name of someone you talked to, then that might make a difference, but I’m not hearing that.” Defendant indicated he only had the name of a relative who was ostensibly searching for an attorney for him. The court found “that there hasn’t been a credible effort to get an attorney or a feasible effort to get an attorney at this point, so the Court will deny the request for the continuance.”

When considering sentencing, the court noted: “I was very disturbed by your obvious perjury when you took the stand.” “When you took the stand and so blatantly lied, and I knew you were lying when you said you had never hit her, and it was so obvious on the tape. . . . You never denied it, in fact, admitted it at one point. So you had clearly hit her, and that’s what she was upset about. And when you got up on the stand and denied hitting her, then you went into the whole thing that it wasn’t two times that you had sex when it was kind of obvious from the tape that it was, and the Court really had the sense that [you] were making it up as you went.” “[Y]our testimony was the worst. I think of all the trials I’ve ever been in, it was the most obvious just—just complete fabrication . . . .” “[T]hat’s a very aggravating and disturbing factor in this case.”

“The other really bad thing I think for [defendant] in looking at this is just the pattern of domestic violence against this person. This person was—[the victim] was subject to several acts of violence before, then she got the slap, and then she got the sex. And she presented—I—I—I found her testimony to be courageous, to say the least, for her; because most victims, as she did for many years, she went along with it for all the reasons that victims of domestic violence go along with it. But your abuse against her was outrageous.” “I think it should be consecutive because the slaps were just different acts of domestic violence but part of a long pattern.”

The court noted that defendant’s criminal history “is increasingly serious. His prior performance on probation was unsatisfactory.” The court found that defendant’s offenses involved great bodily harm and that he took advantage of being a domestic violence abuser, which justified imposition of the aggravated term. The court noted defendant showed no remorse. Defendant “committed obvious perjury on the witness stand.” The court found no mitigating factors. The court sentenced defendant to an aggregate term of imprisonment of nine years four months, consisting of the following: the upper term of eight years on count 3 and a consecutive term of one-third the midterm of four years, one year four months, on count 1. The court imposed a 180-day concurrent term on count 2.

II. DISCUSSION

We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS