P. v. Gomez

Filed 12/6/07 P. v. Gomez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Affirmed with directions.

Vanessa Place, 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, Susan Sullivan Pithey and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

Meanor Gomez (defendant) appeals from a judgment entered after a jury found him guilty of four counts of forcible rape against more than one victim. (Pen. Code,  261, subd. (a)(2).)^[1] The jury found true the allegations that Gomez committed all four crimes during a burglary with intent to commit rape ( 667.61, subds. (a), (d)(4)); that in counts 3 and 4, defendant personally inflicted great bodily injury ( 12022.8); and that in counts 3 and 4, defendant personally inflicted great bodily injury on a victim 70 years old or older. ( 12022.7, subd. (c).)

The trial court sentenced defendant on March 30, 2007, to a total of 72 years to life in prison. The sentence was based on two consecutive sentences of 25 years to life for counts 1 and 3 and consecutive middle terms of six years for both counts 2 and 4, plus two five-year great bodily injury enhancements on counts 3 and 4. ( 12022.8.)

CONTENTIONS

Defendant contends that his consecutive sentences are unconstitutional under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

The People contend that the abstract of judgment should be corrected to reflect sentences of 25 years to life for counts 1 and 3.

FACTS AND PROCEDURAL HISTORY

On August 31, 2003, 70-year old M.J., the victim in counts 1 and 2, was blindfolded and repeatedly raped by defendant after he broke into the apartment she shared with her daughter. M.J. got a brief glimpse of defendant, who she described as Mexican. She smelled alcohol on his breath. The arrival of M.Js daughter interrupted the rape. M.J. sustained bruises and lacerations on her arms, face and genital area, and injuries consistent with blunt force trauma to the genital area. Los Angeles Police officers found a mans T-shirt and sock in the apartment. Later, M.J.s daughter found a key ring with two keys on the balcony.

On October 13, 2003, 75-year old M.I., the victim in counts 3 and 4, fell and broke her wrist when defendant pushed open her apartment window and chased her. Defendant blindfolded her and raped her a lot for an hour and a half. After he left, M.I. reported the rape to the police, and told them that defendant looked Mexican. M.I. had abrasions on her face, her hand was swollen and bruised, and her genitals were lacerated, bruised, irritated, and tender.

Los Angeles Police Detective Gregory Crowe canvassed the neighborhood, and matched the keys recovered from M.J.s apartment to the front gate of defendants apartment building, and the other to defendants apartment door. A forensic print specialist opined that a fingerprint left on M.J.s bedroom doorknob matched defendants fingerprint. A criminalist opined that a boot from defendants apartment was capable of making the print lifted from the ground outside M.I.s apartment window. DNA matching defendants DNA was found on the sock recovered from M.J.s residence and on the swabs of dried secretions taken from the side of M.I.s neck.

M.I. selected two photographs from a photo six-pack, saying they resembled the rapist in some respects. She picked defendants photograph from another six-pack array. M.I. also identified defendant at both the preliminary hearing and at trial.

DISCUSSION

I. The Imposition of Consecutive Sentences Does Not Violate the Sixth and Fourteenth Amendments

Defendant contends that consecutive terms, like upper terms, require further factual findings by jury under Cunningham, and that defendants sentence must be reversed. We disagree.

In People v. Black (2007) 41 Cal.4th 799 (Black II) our Supreme Court recently determined that Cunningham does not call into question the conclusion it previously reached regarding consecutive sentences in People v. Black (2005) 35 Cal.4th 1238, 1264 (Black I), that a defendants constitutional right to jury trial is not violated by the trial courts imposition of consecutive sentences. (Black II, supra, at p. 823.) The determination whether two or more sentences should be served consecutively or concurrently is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. [Citation.] (Ibid.)

Therefore, we conclude that the trial court did not violate defendants Sixth and Fourteenth Amendment rights by sentencing him consecutively. In light of our conclusion, we need not address the Peoples further arguments that consecutive sentencing was mandatory based on the jurys verdict in the counts against separate victims; that consecutive sentences for counts 3 and 4 were supported by the jurys finding of great bodily injury upon a victim over 70; that the recidivism exception applies; and that any error was harmless beyond a reasonable doubt.

II. The Abstract of Judgment Shall be Corrected

The People contend that the abstract of judgment inaccurately reflects that the trial court imposed sentences of life with the possibility of parole for counts 1 and 3, while the trial court actually imposed sentences of 25 years to life for both of those counts.

We agree that the abstract of judgment must be corrected to conform to the trial courts pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)

DISPOSITION

The abstract of judgment is ordered corrected to reflect that defendant was sentenced to 25 years to life for counts 1 and 2, rather than life with the possibility of parole for counts 1 and 2. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

CHAVEZ

We concur:

_______________________, P. J. _____________________, J.

BOREN DOI TODD

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