P. v. Gonzalez
Filed 8/11/06 P. v. Gonzalez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H029020
Plaintiff and Respondent, (Santa Cruz County
Superior Court
v. No. F08256)
DAVID GUADALUPE GONZALEZ,
Defendant and Appellant.
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An amended information charged defendant David Guadalupe Gonzalez with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) - count1),[1] assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1) - count 2), kidnapping (§ 207, subd. (a) - count 3), criminal threats (§ 422 - counts 4, 5), assault with intent to commit rape (§ 220 - count 6), and rape (§ 261, subd. (a)(2) - count 7). Counts 1, 2, and 3 alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Count 3 alleged that defendant personally used a deadly weapon during the offense (§ 12022, subd. (b)(1)). Count 6 alleged that defendant committed the offense in violation of section 1203.065, subdivision (b). Count 7 alleged that defendant was ineligible for probation (§ 1203.065, subd. (a)) and that he kidnapped the victim, personally inflicted great bodily injury and personally used a dangerous weapon within the meaning of section 667.61, subdivisions (a), (b), (d), and (e).
The jury found defendant guilty on counts 1, 2, and 4, guilty of false imprisonment as a lesser included offense to kidnapping in count 3, and not guilty on counts 5 and 6. The jury found true the section 12022, subdivision (b)(1) allegation as to count 3. It found not true the section 12022.7, subdivision (a) allegations. The jury could not reach a verdict on count 7, which was later dismissed. The trial court sentenced defendant to seven years and four months in prison. On appeal, defendant contends the trial court erred in several respects in imposing sentence. We conclude that the judgment must be modified to reflect a four-month sentence for the section 12022, subdivision (b)(1) enhancement as to count 3, and to stay sentence on count 4. As modified, the judgment is affirmed.
I. Statement of Facts
A. The Prosecution Case
On March 10, 2003, Claudia moved to the United States and began living with her sister Maria. Maria was married to defendant's uncle. Claudia began dating defendant in mid-March. She eventually terminated the relationship in late September or early October 2003, because defendant was violent.
On October 16, 2003, defendant called Claudia and asked her to attend a lecture with him. She declined, but asked if he would give her a ride to drop off a job application. After defendant did so, they went to a park and talked. When Claudia asked him to take her home, he told her that she would have to walk. However, he eventually took her home.
That evening, Claudia had an appointment to sell perfumes and other items. Defendant called her during the meeting and accused her of being with other men that day. After the meeting, Claudia met her new boyfriend Lorenzo Rodriguez Vega. Lorenzo took her home and parked outside Claudia's apartment.
Defendant approached Lorenzo's truck and hit the window. Claudia told Lorenzo to leave and got out of the truck. Defendant hit Claudia's head several times, grabbed her hair, and punched her eye. Her eye began bleeding. Defendant also cut her breast with a knife. After defendant told Claudia to tell Lorenzo to leave or he would cut her, Claudia gestured for Lorenzo to leave. Defendant then grabbed her and took her to his truck, telling her, â€
