Opinion
C071825
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DANTE BOWENS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F00867)
Defendant Dante Bowens was convicted by jury of two counts of forcible sodomy (Counts 1 & 2), one count of forcible rape (Count 3), one count of forcible oral copulation (Count 4), one count of pimping (Count 5), three counts of pandering (Counts 6-8), and one count of selling or furnishing a controlled substance (Count 9). In a bifurcated proceeding, the trial court found defendant was previously convicted of a serious felony offense within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), served a prior prison term (§ 667.5, subd. (b)), and had three prior narcotics convictions (Health & Saf. Code, § 11370.2). The trial court sentenced defendant to serve an aggregate determinate term of 82 years in the state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the evidence is insufficient to support his forcible sex offense convictions; (2) two of his pandering convictions must be reversed because section 266i, subdivision (a)'s separate paragraphs set forth various ways of committing a single pandering offense, not separate pandering offenses; (3) the trial court's imposition of full-term consecutive sentences for defendant's forcible sex offense convictions under section 667.6, subdivision (d), resulted in an unauthorized sentence; (4) the trial court abused its discretion in imposing consecutive sentences for these offenses under rule 4.425 of the California Rules of Court and further abused its discretion in selecting the upper term; and (5) Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill No. 180), effective January 1, 2018, applies retroactively to defendant's case and requires his prior narcotics conviction enhancements be stricken.
Undesignated rule references are to the California Rules of Court.
We conclude the evidence is more than sufficient to support defendant's forcible sex offense convictions. We also conclude defendant was properly convicted of three counts of pandering. We do, however, agree with defendant's contention the trial court was not authorized to impose full-term consecutive sentences for the forcible sex offenses under section 667.6, subdivision (d), because these offenses were committed on the same occasion. We must therefore remand the matter for the trial court to exercise its discretion as to whether such sentences should be imposed under subdivision (c) of that section. On remand, the trial court possesses discretion to impose either concurrent or consecutive sentences for these crimes, and if consecutive, either the normal consecutive term under section 1170.1 or the full consecutive term authorized by section 667.6, subdivision (c). Nor are we persuaded by defendant's assertion that the trial court abused its discretion in selecting the upper term for these offenses. Finally, as the Attorney General properly concedes, we must also strike defendant's prior narcotics conviction enhancements.
The matter was assigned to the panel as presently constituted in June 2018.
FACTS
We confine our recitation of facts to the counts of conviction, i.e., Counts 1 through 9. Defendant was acquitted of two narcotics charges (Counts 10 & 11) alleged to have been committed in 2008.
Pimping , Pandering , and Furnishing a Controlled Substance (Counts 5-9)
In January 2011, E. was 22 years old and living at a homeless shelter in the Oak Park neighborhood of Sacramento. She was unemployed and abusing alcohol and various other drugs, including methamphetamine and heroin. Another resident of the shelter introduced her to defendant and his codefendant at trial, who went by the name Candy. Defendant and Candy offered to put E. up in a motel room in exchange for her working as a prostitute. She agreed because the shelter would allow her to stay for only a few more days and she did not know where else to go, but insisted on getting drugs first.
On January 11, defendant drove E. somewhere to buy heroin and then brought her to the Good Nite Inn near California State University, Sacramento. Defendant took pictures of E. in the motel room with the assistance of Candy, who posted an advertisement for E.'s services on the internet. Candy also booked the appointments. Another of defendant's prostitutes was in the same room as E. She was tasked with making E. feel more comfortable about working for defendant. E. worked for defendant as a prostitute at the Good Nite Inn for a few days, during which defendant periodically bought drugs for her. She was arrested on unrelated charges on January 14 and spent the next 12 days in jail before the charges were dropped.
E. resumed her work for defendant on January 26, this time at a Motel 6 in Sacramento's midtown. But first, she asked defendant for a Four Loko alcoholic beverage and either heroin or OxyContin, a narcotic pain medication, so that she "would not realize what [she] was doing." Defendant bought her the Four Loko, but said he would be unable to get any OxyContin until several hours later. She then asked for cocaine, which defendant was able to provide. In exchange for the cocaine, E. understood she would be required to have sex with whomever defendant sent to her room.
E. engaged in sexual acts with customers at the Motel 6 on January 27 and 28. Candy again booked the appointments. Defendant again provided her with drugs. Unlike at the Good Nite Inn, E. was the only prostitute working for defendant out of the room he procured for her at the Motel 6, with the exception of two incidents. In one of them, the customer wanted a "double," so defendant sent another of his prostitutes to the room to satisfy that request. In the other, E. refused to do a certain act with a customer, the details of which we need not describe, and defendant had to send the same prostitute to the room to fulfill that request. After the latter incident, defendant came up to the room and told E. to "just do what [she's] told." This made E. realize she needed to get out of the situation she was in.
On January 29, defendant checked E. out of the Motel 6 and drove her to Concord to perform sexual acts out of a motel in that city. At some point, Candy also made the trip to Concord. E. serviced customers that night and into the early morning hours, but became ill later in the morning and refused to take any more customers. When defendant sent customers to her anyway, she did not let them in the room. After sending defendant a text message saying she was "too fucking sick for this" and would "try to find somewhere to stay tonight," she fell asleep. When she woke up, defendant was in the room and had taken her cell phone. He threatened to "fuck [her] up" if she "miss[ed] any[]more money." E. told him she no longer wanted to work for him. Defendant responded: "[I]f you think we're just gonna give you some[]place to live then you can just leave like that, it's not how it works. Like you better get your shit in check."
Defendant and Candy then drove E. back to Sacramento and brought her to the same Good Nite Inn she worked out of earlier in the month. Candy rented a room for E. and told defendant, "you better get this bitch in check." E. had sex with one or two men in that room during the day.
The foregoing events were used to support one count of pimping, three counts of pandering, and one count of furnishing a controlled substance.
Forcible Sex Crimes (Counts 1-4)
Later in the evening of January 30, defendant came up to E.'s room and took some nude photographs of her. He then said he "wanted to see how [she] was with the customers" and started putting lubricant on his penis and her anus. E. told him to stop and started yelling. Defendant said he could do "whatever he wants" to her and inserted his penis into her anus. He then took it out and inserted it a second time, "trying to get it in farther." The forcible sodomy lasted one or two minutes. After defendant removed his penis from E.'s anus, he "flipped [her] over" and "put it in [her] vagina." The rape lasted about 10 minutes, during which E. continued yelling and telling him to stop. Defendant became angry, pushed and hit her, and said, "if this is how you are with customers, this isn't good." He then removed his penis from her vagina, "sat [her] on the side of the bed," and "put it in [her] mouth." After about two minutes of forcible oral copulation, during which E. "was scared and crying," defendant ejaculated on her, pushed her to the side, and left the room.
The foregoing events were used to support two counts of forcible sodomy, one count of forcible rape, and one count of forcible oral copulation.
E.'s Escape and Defendant's Arrest
After defendant left E.'s room, she went to the bathroom to get herself cleaned up. When defendant called her on her cell phone and told her, "you better not miss any money or I'm going to fuck you up," E. heard sounds over the line indicating he was driving. She took that as her opportunity to escape, ran to the motel's office, and pounded on the office windows until the clerk allowed her to come inside to call 911. Police arrived a short time later and interviewed E., who told them about the forcible sex acts described above.
Various lies E. told to the police and others will be recounted in some detail in the discussion portion of the opinion.
Defendant was located by a police helicopter while pulling out of the Good Nite Inn's parking lot and was pulled over and arrested a short distance from the motel.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his forcible sex offense convictions (Counts 1-4). He is mistaken.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
E.'s testimony established each element of the forcible sex offenses defendant was convicted of committing. Defendant does not dispute this. Instead, he argues her testimony was "totally" and "extremely incredible." He points out she initially testified defendant forcibly sodomized her twice and then moved on to the forcible oral copulation. When asked whether defendant put his penis in her vagina, she said: "No. I don't think so. Maybe." The prosecutor then asked whether she remembered telling the police that defendant had inserted his penis in her vagina. She responded: "He probably did. It's kind of hazy." The prosecutor then refreshed E.'s recollection by allowing her to read her statement to police, after which she testified: "Um, he flipped me over and he put it in my vagina." In response to follow-up questioning, E. testified defendant penetrated her vagina many times during the span of about 10 minutes while she yelled for him to stop. Defendant argues, "being forcibly raped . . . is not the type of thing any reasonable person would ever simply 'forget.' " Defendant also points out E.'s criminal record includes crimes of moral turpitude, she admittedly lied to police, the District Attorney, and the nurse who performed a sexual assault examination, and her trial testimony includes several inconsistencies. Finally, he further argues E.'s testimony about these sex offenses was not corroborated by any physical evidence.
For example, E. lied to police about voluntarily becoming one of defendant's prostitutes, claiming at trial she did so because she was ashamed and thought she would get in trouble. She also lied to police about her drug use. E. further lied about voluntarily becoming one of defendant's prostitutes during two interviews with the District Attorney in February and June 2011. It was not until May 2012 that E. told the District Attorney the truth about her initial willingness to work as a prostitute for defendant. E. lied to the nurse who performed the sexual assault examination by claiming she had not had sex with any other men within five days of the examination. --------
Each of these matters was properly brought before the jury in an effort to impeach E.'s testimony. It was for the jury to decide the credibility of that testimony, not this court. There is nothing "physically impossible or inherently improbable" about E.'s testimony regarding the forcible sex offenses. (People v. Young, supra, 34 Cal.4th at p. 1181.)
II
Multiple Pandering Convictions
Defendant also claims two of his pandering convictions must be reversed because section 266i, subdivision (a)'s separate paragraphs set forth various ways of committing a single pandering offense, not separate pandering offenses. We are not persuaded.
"Pandering, as defined in section 266i, includes a broad spectrum of behaviors and degrees of culpability." (People v. Almodovar (1987) 190 Cal.App.3d 732, 740.) The prohibited behaviors include, among other things, procuring another person for the purpose of prostitution (§ 266i, subd. (a)(1)), procuring a place for another person as an inmate in a house of prostitution or any place in which prostitution is encouraged or allowed (id., subd. (a)(3)), causing, inducing, persuading, or encouraging an inmate in a house of prostitution or any place in which prostitution is encouraged or allowed to remain there as an inmate by promises, threats, violence, or by any device or scheme (id., subd. (a)(4)). (See People v. Zambia (2011) 51 Cal.4th 965, 977.) "The statute is an attempt ' "to cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.' " [Citations.] It is 'designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes.' [Citation.]" (People v. Almodovar, supra, 190 Cal.App.3d at p. 741.)
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1227.) However, "a defendant may not be subjected to multiple convictions for only one criminal act." (People v. Lewis (1978) 77 Cal.App.3d 455, 461.) We must therefore determine whether defendant's conduct in this case amounted to separate criminal acts in violation of section 266i, subdivision (a), paragraphs (1), (3), and (4), respectively, or whether instead he committed a single criminal act that qualified as "pandering" under each of these paragraphs.
In People v. White (1979) 89 Cal.App.3d 143 (White), the Court of Appeal explained the form of pandering involved in that case, i.e., procuring a place for another person as an inmate in a house of prostitution (former § 266i, subd. (c), Stats. 1976, ch. 1139, § 162, p. 5108; now subd. (a)(3), Stats. 2010, ch. 709, § 9), "is completed when the [person] involved becomes an inmate in [such] a house and commits therein a single act of prostitution," but subsequent acts of prostitution committed therein do not amount to "separate and additional offenses of pandering" under this subdivision. (Id. at p. 151.) The court analogized this subdivision of the pandering statute to the pimping statute (§ 266h) because "once the [person] is procured for a house of prostitution, the offense becomes ongoing as long as the [person] plies her [or his] trade in such house." (Ibid., citing People v. Lewis, supra, 77 Cal.App.3d 455 [multiple pimping convictions reversed where the defendant derived income from a prostitute over the span of five years].)
In People v. Deloach (1989) 207 Cal.App.3d 323 (Deloach), the Court of Appeal drew a distinction between the form of pandering involved in that case, i.e., inducing a person to become a prostitute by means of threats (former § 266i, subd. (b), Stats. 1976, ch. 1139, § 162, p. 5108; now subd. (a)(2), Stats. 2010, ch. 709, § 9), from the form of pandering at issue in White, supra, 89 Cal.App.3d 143 and held the defendant could be convicted of two counts of pandering where she induced her daughter to engage in two separate acts of prostitution on separate occasions 20 days apart (id. at pp. 328-330), explaining: "Appellant was not charged with procuring [her daughter] as an inmate in a house of prostitution, or with giving her a 'permanent job' as a prostitute; rather, she was charged with causing, inducing, persuading or encouraging her daughter into committing two separate acts of prostitution, by means of separate threats on two separate occasions. The evidence, which shows that appellant twice forced her daughter to perform acts of prostitution against her will, fully supports the jury's conviction of appellant on these charges." (Id. at pp. 333-334.)
Here, as in White, supra, 89 Cal.App.3d 143, defendant was convicted of one count of procuring a place for E. as an inmate in a house of prostitution or any place in which prostitution is encouraged or allowed. (§ 266i, subd. (a)(3).) The basis for this charge (Count 7), as delineated in the third amended information and elaborated upon in the prosecutor's closing argument, was defendant's act of renting E. the room at the Motel 6 after she was released from jail with the intent that she engage in acts of prostitution in that room, and then renting her the room at the Good Nite Inn after the trip to Concord with the same intent. We first note this conduct would arguably support two counts of pandering under subdivision (a)(3) because, as the Deloach court explained during its discussion of White, supra, 89 Cal.App.3d 143, subsequent acts of prostitution committed in the place so procured do not "constitute a new 'procurement,' unless or until the prostitute leaves the house of prostitution." (Deloach, supra, 207 Cal.App.3d at p. 333, italics added.) Defendant procured two separate motel rooms for E. to operate as one of his prostitutes, separated in time by their trip to Concord. However, defendant was not charged with two counts of violating subdivision (a)(3), and the prosecutor argued both procurements satisfied the single count charging violation of this provision.
Defendant was also convicted of one count of procuring E. for the purpose of prostitution. (§ 266i, subd. (a)(1).) With respect to this charge (Count 6), as with the other counts of pandering, the information sets forth the time frame as "[o]n or about and between January 27, 2011, and January 30, 2011," i.e., the time frame during which E. was at the Motel 6, made the trip to Concord, and was then checked into the Good Nite Inn for the second time. However, in support of this charge, the prosecutor's closing argument goes back to E.'s time in the homeless shelter in early January of that year, arguing this was when defendant and Candy began the effort to procure her as one of defendant's prostitutes. They continued that effort when E. came to the Good Nite Inn the first time, enlisting the help of the other prostitute in the room to make her feel comfortable about being one of defendant's prostitutes. The prosecutor then argued defendant possessed the intent that E. become one of his prostitutes at that time, which she of course did. Thus, notwithstanding the date range in the information, Count 6 was supported by different acts than those supporting Count 7. Indeed, between defendant's initial procurement of E. as one of his prostitutes and his procurement of the room for her at the Motel 6, E. spent almost two weeks in jail. Defendant did not object to the variance between the date range set forth in the information and the prosecutor's reliance on slightly earlier conduct to support Count 6. Any argument that such variance is material is therefore forfeited. (See Colbert v. Colbert (1946) 28 Cal.2d 276, 281.)
Turning to Count 8, defendant was convicted of causing E., already an inmate in a place in which prostitution is encouraged or allowed, to remain there as an inmate by means of threats or violence. (§ 266i, subd. (a)(4)). The prosecutor's closing argument specifically relied on events occurring after E. became ill in Concord and refused to take customers at the motel there on the morning of January 30. Specifically, defendant threatened to "fuck [her] up" if she "miss[ed] any[]more money" and then drove her back to Sacramento, where she continued working for defendant at the Good Nite Inn until her escape following the forcible sex crimes he committed against her. As already mentioned, simply procuring the motel room at the Good Nite Inn the second time arguably would have sufficed to amount to a second pandering violation under section 266i, subdivision (a)(3). However, the prosecution appears to have considered E. a continuous inmate of defendant's prostitution business regardless of the location and charged him with threatening her in order to cause her to remain such an inmate under subdivision (a)(4). Regardless of the theory, we conclude it amounts to a separate act of pandering.
In sum, Counts 6, 7, and 8 are supported by different conduct engaged in by defendant on separate occasions. He committed the crime of pandering when he procured E. as one of his prostitutes at the Good Nite Inn in early January. He did so again when he procured a room for her at the Motel 6 following her release from jail almost two weeks later. And he did so a third time when, after checking out of the Motel 6 and heading to Concord for a night, he threatened her in order to keep her working as one of his prostitutes and procured another room for her at the Good Nite Inn.
III
Full-term Consecutive Sentencing
Defendant further asserts the trial court's imposition of full-term consecutive sentences for Counts 1 through 4 under section 667.6, subdivision (d), resulted in an unauthorized sentence. We agree.
Section 667.6, subdivision (d), 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." (§ 667.6, subd. (d), italics added.)
"Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his [or her] assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092 (Garza).)
"[A] finding of 'separate occasions' under . . . section 667.6 does not require a change in location or an obvious break in the perpetrator's behavior: '[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.' " (People v. Jones (2001) 25 Cal.4th 98, 104, superseded by statute on other grounds as stated in People v. Andrade (2015) 238 Cal.App.4th 1274, 1307, citing People v. Irvin (1996) 43 Cal.App.4th 1063, 1071.) For example, in Garza, supra, 107 Cal.App.4th 1081, we held the trial court could reasonably have concluded three forcible sex offenses occurred on "separate occasions" even though each was committed against the victim while in a parked car during the span of several minutes. (Id. at p. 1092.) We explained: "After defendant forced the victim to orally copulate him, he let go of her neck, ordered her to strip, punched her in the eye, put his gun to her head and threatened to shoot her, and stripped along with her. That sequence of events afforded him ample opportunity to reflect on his actions and stop his sexual assault, but he nevertheless resumed it. Thus, defendant's first act of rape was committed on a separate occasion from the forcible oral copulations. [Citation.] [¶] Similarly, defendant had an adequate opportunity to reflect upon his actions between the time he inserted his finger in the victim's vagina and the commission of the first rape. During this interval, defendant (1) began to play with the victim's chest[,] (2) put his gun on the back seat[,] (3) pulled the victim's legs around his shoulders and, finally, (4) forced his penis inside her vagina. A reasonable trier of fact could have found the defendant had adequate opportunity for reflection between these sex acts and that the acts therefore occurred on separate occasions for purposes of application of section 667.6, subdivision (d)." (Id. at pp. 1092-1093.) In so concluding, we cited People v. Plaza (1995) 41 Cal.App.4th 377, in which the Court of Appeal affirmed the trial court's finding that five sexual assaults occurred on "separate occasions" even though all of the acts took place in the victim's apartment; the court explained that while the defendant's physical assault never ended, there were sufficient breaks in his "assaultive sexual behavior" to support the trial court's finding. (Id. at pp. 384-385; see also People v. King (2010) 183 Cal.App.4th 1281, 1325-1326 [the defendant, who sexually assaulted the victim on the side of the road, "momentarily paused to look around uneasily" when a car drove by, and then resumed his sexual assault by committing a "separate assaultive act"].)
However, where there are no such breaks in the assaultive sexual conduct, the mere changing of sexual positions will not suffice to support a separate occasion finding. In People v. Pena (1992) 7 Cal.App.4th 1294 (Pena), the Court of Appeal reversed the trial court's finding that a forcible rape and oral copulation occurred on separate occasions, explaining: "[N]othing in the record before this court indicates any appreciable interval 'between' the rape and oral copulation. After the rape, appellant simply flipped the victim over and orally copulated her. The assault here was also continuous. Appellant simply did not cease his sexually assaultive behavior, and, therefore, could not have 'resumed' sexually assaultive behavior." (Id. at p. 1316; see also People v. Corona (1988) 206 Cal.App.3d 13, 18 [reversing trial court's separate occasion finding where there was "no evidence of any interval 'between' . . . sex crimes affording a reasonable opportunity for reflection; there was no cessation of sexually assaultive behavior hence defendant did not 'resume[] sexually assaultive behavior[]'].)
Here, as in Pena, supra, 7 Cal.App.4th 1294 , and unlike Garza, supra, 107 Cal.App.4th 1081, there was no break in defendant's sexual assault of E. There was not even a change in position between the first and second forcible sodomy. Defendant simply withdrew and reinserted his penis into E.'s anus as she yelled and told him to stop. After a couple minutes of engaging in that conduct, he "flipped [her] over" and "put it in [her] vagina." This is indistinguishable from the change in position the Court of Appeal held to be insufficient to support a separate occasion finding in Pena. The rape lasted about 10 minutes, during which E. continued yelling and telling him to stop. During the rape, defendant pushed and hit her, and said, "if this is how you are with customers, this isn't good." He then removed his penis from her vagina, "sat [her] on the side of the bed," and "put it in [her] mouth." Had E. testified the pushing, hitting, and words of disapproval occurred between the rape and the oral copulation, the case would be closer to what occurred between the digital penetration and rape in Garza, supra, 107 Cal.App.4th 1081. However, E. testified these events occurred while defendant was raping her. He then moved her to the side of the bed and forced her to orally copulate him. Again, this is more analogous to the change in position held to be insufficient in Pena.
We must therefore reverse the portion of the judgment imposing full, separate, and consecutive terms for Counts 2 through 4 pursuant to section 667.6, subdivision (d). However, because subdivision (c) of this section provides "a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion" (§ 667.6, subd. (c), italics added), we shall remand the matter to the trial court with directions to exercise its discretion under this subdivision.
IV
Discretion to Impose Consecutive and/or Upper Terms
Defendant also claims the trial court abused its discretion in imposing consecutive sentences for Counts 1 through 4 under rule 4.425 and further abused its discretion in selecting the upper term. While we are already reversing the sentences imposed on these counts and remanding the matter for resentencing, we nevertheless address these contentions because the first of which, if meritorious, would preclude the trial court from imposing full consecutive terms under section 667.6, subdivision (c), on remand. In other words, if the facts of this case would render imposition of consecutive terms for these offenses an abuse of discretion, it would also be an abuse of discretion to impose full consecutive terms under section 667.6, subdivision (c). We conclude the trial court may impose such terms if it chooses to do so on remand. We also conclude the trial court's choice of the upper term for these crimes was not an abuse of discretion.
A.
Choice of the Upper Term
Beginning with the choice of the upper term, rule 4.420 provides in relevant part: "In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Rule 4.420(b).) "[T]he finding of even one factor in aggravation is sufficient to justify the upper term." (People v. Steele (2000) 83 Cal.App.4th 212, 226.)
Here, in selecting the upper term, the trial court stated: "I am finding as a circumstance in aggravation the manner in which these crimes were committed . . . indicated planning, sophistication and professionalism on your part. You have engaged in violent conduct, which indicates a serious danger to society. I think that's very clear. Your prior convictions are numerous and of increasing seriousness." These factors in aggravation are listed in rule 4.421(a)(8), (b)(1), and (b)(2). We conclude they are more than adequately supported by the record. The trial court also stated it found "absolutely no circumstances in mitigation." Having reviewed the factors in mitigation listed in rule 4.423, we cannot conclude this assessment was an abuse of discretion.
B.
Decision to Impose Consecutive Sentences
Turning to the decision to impose consecutive sentences, rule 4.425 provides: "Factors affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Facts relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other facts and limitations [¶] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." As with selection of the upper term, a single aggravating factor will justify imposition of consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Here, the trial court used rule 4.425(a)(3) to impose consecutive sentences, explaining: "You had more than an adequate opportunity to pause and reflect in between each and every one of these sexual assaults. And having had that opportunity, you continued the assault. So consecutive sentencing is appropriate and I do so under Rule 4.425(a)(3)." As we have already explained in reversing imposition of full consecutive terms under section 667.6, subdivision (d), "no reasonable trier of fact could have decided . . . defendant had a reasonable opportunity for reflection after completing [one forcible sex offense against E.] before resuming his assaultive behavior." (Garza, supra, 107 Cal.App.4th at p. 1092.) However, on remand, the trial court has at least three factors in aggravation to work with in selecting the upper term and choosing to impose consecutive sentences. Only one such factor is necessary to support each decision. Thus, while the trial court abused its discretion in using rule 4.425(a)(3) to justify imposition of consecutive sentences, the facts of this case do not preclude the trial court from properly imposing such sentences on remand.
In sum, the trial court did not abuse its discretion in imposing the upper term for Counts 1 through 4 and may, on remand, determine consecutive sentencing is appropriate in this case. However, if it does exercise its discretion to sentence consecutively on these counts, it must then engage in the "separate and distinct" determination of whether to impose consecutive terms "under section 1170.1," i.e., one-third the middle term, or under the harsher full term provisions of subdivision (c) of section 667.6," and provide "a statement of reasons separate from those justifying the decision merely to sentence consecutively." (People v. Belmontes (1983) 34 Cal.3d 335, 347.)
V
Senate Bill No. 180
Finally, as the Attorney General concedes, defendant's prior narcotics conviction enhancements must be stricken.
Senate Bill No. 180, which became effective January 1, 2018, amends the three-year enhancement under Health and Safety Code section former 11370.2 to apply only to prior convictions for violations of Health and Safety Code section 11380. (Health & Saf. Code, former § 11370.2; Stats. 2017, ch. 677, § 1.) Prior to the amendment, the three-year enhancement applied to many specified offenses including defendant's prior convictions for violating Health and Safety Code sections 11351.5 and 11352.
"When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date. [Citation.]" (People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) This principle applies to "statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.)
Senate Bill No. 180 does not reflect a legislative intent that it apply prospectively only. Because defendant's judgment is not yet final, the three-year enhancements imposed for defendant's prior narcotics convictions must be stricken.
DISPOSITION
The portions of the judgment imposing full consecutive terms for Counts 2 through 4 pursuant to Penal Code section 667.6, subdivision (d), and imposing three consecutive three-year enhancement terms pursuant to Health and Safety Code section 11370.2 are reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions to strike these enhancements and exercise its discretion under Penal Code section 667.6, subdivision (c).
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HULL, J.