Opinion
F061421 Super. Ct. No. VCF225236
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. ARTIS CHARLES HOOKS, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Artis Charles Hooks broke into an apartment shared by L.X. and Q.H. While armed with a knife, appellant sexually assaulted both women and threatened to kill them. Appellant was convicted after a jury trial of two counts of forcible rape (counts 1 & 2), forcible sexual penetration (count 3), residential burglary (count 4), two counts of assault with a deadly weapon (counts 5 & 6), two counts of making criminal threats (counts 7 & 8), and attempted forcible rape (count 9). Special allegations that the rapes and sexual penetration were committed during the commission of a residential burglary with personal use of a weapon and against multiple victims, and allegations that appellant personally used a knife during the commission of the sexual crimes and the burglary were found to be true. Appellant was sentenced to an aggregate term of 75 years to life imprisonment plus seven years.
Appellant argues the threat convictions are not supported by substantial evidence. He also contends the court made a prejudicial evidentiary error. Finally, he challenges the court's finding that the two rapes occurred on separate occasions within the meaning of Penal Code section 667.6, subdivision (d). All of these claims fail; we will affirm.
Unless otherwise specified all statutory references are to the Penal Code.
FACTS
L.X. testified that around 1:00 a.m. on July 19, 2009, she was in bed when appellant suddenly held something over her mouth. Appellant was armed with a knife. L.X. tried to shout. Hearing the noise, Q.H. came out of her bedroom. Appellant struggled with Q.H. L.X. grabbed appellant's knife and threw it away. Appellant pushed Q.H. into a corner. Appellant recovered the knife and directed L.X. to remove her underpants. She complied after appellant hit her in the head. Appellant pushed L.X. face-down on the bed and told her to insert his penis into her vagina. She complied with this demand. Then appellant approached Q.H. and pushed her onto the bed, telling L.X. to squat down on the floor at the end of the bed. Appellant attempted to rape Q.H. Q.H. started to scream and appellant slapped her on the head and face. He digitally penetrated Q.H. and then pushed her away. He returned to L.X. He turned L.X. around so she was facing him. He said, "Don't move. My name is Mike. Don't move, I'll kill you." Appellant asked L.X. if she had any money. When she told him that she did not have any money, he hit her on the head. Then he forced her to lie down on her back and raped her again. L.X. yelled at Q.H. to run away. Appellant hit L.X. and then chased Q.H., who was running towards the kitchen. L.X. opened the front door and ran outside naked. After unsuccessfully seeking help from her neighbors, she flagged down a passing car. The driver gave L.X. his shirt to cover herself and called the police.
Q.H. testified that she was asleep in her bedroom when she heard L.X. yell. Thinking L.X. was having a nightmare, Q.H. got up to go to L.X.'s room. As she walked out of her room she saw appellant. Q.H. ran back to her own room and closed the door. Appellant was able to open the door. He grabbed Q.H. and she struggled with him. He said, "Don't move or I'll kill you." Holding a knife against her neck, appellant dragged Q.H. into L.X.'s bedroom. He tried to push Q.H. onto the bed. L.X. told her to run. Appellant began hitting both of the women very hard, telling them to keep quiet. He signaled for Q.H. to squat next to the window and she complied. Appellant raped L.X. on the bed. Then he signaled for Q.H. to get on the bed. She complied. Appellant attempted to rape Q.H. but his penis was flaccid and he could not achieve penetration. Appellant put his finger into Q.H.'s vagina. Appellant told L.X. to get back on the bed and then he raped her again. Appellant asked the women if they had money and demanded that they give it to him. They told him they did not have any money. Appellant turned on the light in the bedroom. The women began struggling with him and were able to run out of the bedroom. L.X. ran out of the apartment. Appellant tried to leave but Q.H. grabbed onto him. He took off his shirt to free himself and fled through the sliding door.
Two neighbors testified sometime after midnight they heard a female screaming for help. They looked out their windows and saw a shirtless Black male run from the apartments and jump over a fence.
A forensic nurse examiner conducted sexual assault examinations on the victims and photographed their injuries. L.X. suffered injuries on her face, neck, back, arms, legs and torso. A vaginal exam showed several acute injuries that were consistent with forcible rape. Q.H. suffered injuries to her face, arms, legs, feet and buttocks. A vaginal exam showed acute injuries that were consistent with forcible digital penetration.
During a search of the apartment, a knife blade was found underneath L.X.'s bed and the handle to the knife was found nearby. A NFL jersey-type shirt, a sock and a pair of pink underpants were found on the floor in L.X.'s bedroom. A webbed belt and a black T-shirt were found on the living room floor.
The window outside L.X.'s bedroom was cracked and there were pry marks on the rubber seal. The window screen was bent and lying on the ground. Several finger and palm print impressions were obtained from the area outside L.X.'s window. Three fingerprint impressions and one palm impression matched appellant's right hand.
Appellant was interviewed by Visalia police officers on July 30, 2009. He initially denied being anywhere near the apartment building on the night of July 19th. Appellant eventually told the officers that he was high on drugs and alcohol that evening. He was wandering around when he saw a laptop computer through a window. He wanted to steal the laptop so he could purchase more drugs. He unsuccessfully tried to open the window but was able to enter the apartment though the sliding glass door. Appellant said he went into the room and grabbed the computer. A female started screaming and he grabbed her mouth to keep her quiet. Another female came into the room and jumped on him. He wrestled with and hit the females a few times. He was armed with a knife but only used it to scare the women. Fearing that the police would arrive, he fled the apartment and jumped over the fence without taking the laptop. Appellant said that he blacked out when the women started wrestling with him. He denied sexually assaulting them.
Appellant did not present any evidence or call any witnesses at trial.
DISCUSSION
I. The Threat Convictions are Supported by Substantial Evidence.
Appellant was convicted of two counts of making criminal threats in violation of section 422 (counts 7 & 8). Appellant argues the threat convictions must be reversed because the record does not contain substantial evidence proving that his threats to kill the victims caused them to be in sustained fear for their safety. We are not convinced.
The applicable standard of review is axiomatic. When assessing a state law challenge to the sufficiency of the evidence, the appellate court examines the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The same standard applies when assessing a federal constitutional due process claim: "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318, fn. omitted.) "The standard is the same, regardless of whether the prosecution relies mainly on direct or circumstantial evidence. [Citation.]" (People v. Vazquez (2009) 178 Cal.App.4th 347, 352.) "'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.' [Citation.]" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245; see also Jackson v. Virginia, supra, 443 U.S. at p. 319.) Generally, the testimony of a single witness is sufficient to prove a disputed fact unless the testimony is inherently improbable or physically impossible. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.) The trier of fact makes credibility determinations and resolves factual disputes. (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) An appellate court will not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Vazquez, supra, 178 Cal.App.4th at p. 352.)
To prove a violation of section 422, the People must prove all of the following elements:
"... (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Q.H. and L.X. testified that appellant threatened to kill them. Q.H. testified that when she saw appellant she ran into her bedroom. Appellant tried to grab hold of her and she struggled. Then he said, "Don't move or I'll kill you." Holding a knife to her neck, he forced her into L.X.'s bedroom. L.X. testified that immediately before appellant raped her the second time, he said, "Don't move. My name is Mike. Don't move, I'll kill you." Both victims testified they were afraid appellant was going to kill them.
Appellant argues the People did not prove the sustained fear element because the prosecutor did not elicit express testimony from the victims that it was appellant's threat to kill them that caused them to fear for their lives. He argues the victims had "plenty of reasons to be afraid" and there was no evidence from which the jury could reasonably conclude the victims were in fear because of his threats to kill them. We are not convinced.
In determining if a criminal threat has been made the jury is entitled to consider "all of the circumstances" and "the threatening statement does not have to be the sole cause of the victim's fear." (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.)
In People v. Fierro (2010) 180 Cal.App.4th 1342 (Fierro), a challenge to the sufficiency of the evidence supporting a threat conviction was rejected where the defendant stood by the victim's car, displayed what appeared to be a gun and threatened to kill the victim "'right now.'" (Id. at p. 1346.) The victim was "'scared to death during the whole ordeal.'" (Ibid.) In finding that the sustained fear element was proven, the appellate court reasoned, "[The victim] testified clearly and more than once that he was horribly scared, and his fright was not fleeting.... Facing what he thought was a gun and hearing words to the effect that he and his son were about to be killed, [the victim] was in sustained fear for his and his son's life." (Id. at p. 1348.)
Similarly, the record in this case contains ample evidence from which the jury reasonably could conclude that the victims were terrified for their lives both as a result of appellant's threat and his conduct. A person who hears a knife-wielding assailant threaten to kill her and is beaten and sexually assaulted by the assailant is quite justified in being terrified for her life. L.X. was so panicked that she ran into the street naked to escape and summon help. In light of the entirety of the circumstances presented here, it was not necessary for the victims to explicitly testify that the threat to kill them increased their fear. Testimony from the victims that they were scared and feared being killed (which is exactly what appellant threatened to do to them) was sufficient to support a reasonable inference that appellant's threats exacerbated their terror. The victims testified they were afraid of being killed -- not that they were afraid of being sexually assaulted, beaten or robbed. Since appellant threatened to kill them, it can be reasonably inferred that his threats played a significant role in causing and exacerbating their fear of death. The jury could conclude from the victims' testimony and their actions during and immediately following the attack that they reasonably feared appellant was going to kill them and that his threats were one of the reasons for their sustained fear. Accordingly, we hold the guilty verdicts on counts 7 and 8 are supported by substantial evidence and the convictions do not infringe appellant's federal constitutional due process and jury trial rights. (See, e.g., Fierro, supra, 180 Cal.App.4th at pp. 1348-1349.)
II. The Asserted Evidentiary Error was Harmless.
A. Facts.
During direct examination the prosecutor asked L.X. if she "remember[ed] whether he ejaculated?" L.X. replied, "At that time, I did not, but at the hospital when I was swabbed, I -- I noticed." She continued, "At the hospital, they asked me to give them a urine sample, and as I wiped myself, I noticed that some blood and there's some semen in the tissue that I used to wipe myself." The prosecutor asked, "So when you say semen, could you just describe what you noticed." She replied, "It was kind of a thick, pearl-like color." During cross-examination, defense counsel asked her if she believed appellant ejaculated during the second act of intercourse. She replied, "Well, I don't remember what exactly happened. It's only that afterwards when I went to the hospital that I noticed it." Defense counsel asked if she remembered testifying at the preliminary hearing that appellant ejaculated inside her during the second rape. L.X. replied that she did not remember her testimony at the preliminary hearing. On redirect examination, L.X. testified that she remembered telling the responding police officers that she did not know if the rapist ejaculated but she needed to go to the hospital because he did not have a condom on and she was afraid of infection.
Jennifer Pacheco testified that she is a forensic nurse examiner and registered nurse. She conducts a medical and forensic examination on sexual assault and domestic violence victims. Her "duties are to interview the patient so that we know what evidence we need to collect and then to collect evidence to be turned over to law enforcement to be analyzed." She has performed between 195 and 200 sexual examinations and has testified five times as an expert witness. During cross-examination, defense counsel asked, "But you know if you're swabbing to try to see if there's semen in somebody's vagina, you have an idea how to go about doing that?" Pacheco responded, "Correct." During redirect examination, the prosecutor asked, "Do you ever make a determination whether or not there's semen?" She replied, "No, we do not," because "we aren't experts in determining whether it's semen or not or -- or a normal vaginal discharge." The prosecutor asked a follow-up question, "So with regard to normal vaginal discharge and semen, is there a big difference when you are looking at it with the naked eyeball?" At this point, defense counsel objected on the ground that Pacheco is "not an expert in making that determination." The court directed the prosecutor to restate the question. Without objection, the prosecutor asked, "Can a person, can any person, myself, anybody, can they just look at vaginal discharge and semen and determine which is which?" Pacheco answered, "No."
A senior criminalist analyzed L.X.'s underpants and vaginal swabs. Presumptive "p30" tests on these items were positive, indicating the possible presence of seminal fluid. Other tests performed on the underpants and vaginal swabs for the presence of seminal fluid or sperm cells were negative.
B. Appellant was not prejudiced by admission of the contested testimony.
Appellant contends Pacheco was not an expert on the topic of visual recognition of semen and therefore the court erred by admitting her testimony that people cannot visually distinguish between vaginal discharge and semen. Appellant also argues that if we find the point was forfeited because defense counsel did not object to the contested testimony, then he received ineffective assistance of counsel. We reject both of these claims because it is readily apparent that appellant was not prejudiced by admission of this testimony.
Evidentiary error under state law is reviewed for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818. Under this standard, a judgment will be reversed only if it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (Id. at p. 836.) Similarly, to prevail on an ineffective assistance claim, appellant must establish prejudice by establishing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) An ineffective assistance claim may properly be resolved solely on the basis of lack of prejudice. (In re Jackson (1992) 3 Cal.4th 578, 604.)
Appellant contends Pacheco's testimony that one cannot visually distinguish between a vaginal discharge and semen was prejudicial because it eviscerated his trial defense that the victims fabricated the sexual assault. Under this defense theory, L.X. and Q.H. were so angered by appellant's unlawful entry into their apartment that they injured their genitalia, planted evidence and falsely told the police that the burglar sexually assaulted them. In support of this defense, appellant relies on his statement to the police that he did not sexually assault the women and the apparent conflict between L.X.'s testimony that she thought appellant ejaculated inside her and the criminalist's testimony that L.X.'s vaginal swabs and underpants tested negative for the presence of sperm. The argument fails because the asserted defense is patently unbelievable.
The evidence overwhelmingly supports the victims' testimony that they were sexually assaulted. L.X. and Q.H. both sustained acute vaginal injuries. Pacheco testified that she has performed between 195 to 200 sexual assault examinations and L.X.'s injuries rated "probably top 10 as far as patients with that many injuries." To postulate that that the victims inflicted these injuries on themselves solely to frame a stranger because they were angry that he broke into their apartment and attempted to steal a computer strains credulity. There is no evidence that either victim had previously made a false claim of sexual assault. There is no evidence that either victim engaged in consensual sexual activity during the 72 hours prior to the burglary. Also, the physical evidence is consistent with L.X.'s and Q.H.'s testimony that they were sexually assaulted. A T-shirt and belt were found on the ground in the living room. A broken knife, a jersey shirt, a sock and a pair of women's underpants were found on the ground in L.X.'s bedroom. And the victims' conduct is consistent with their testimony that appellant sexually attacked them in the middle of the night. Neighbors heard a woman screaming and then saw a Black male jump over a fence. L.X. was so terrified that she ran into the street naked and flagged down a car driven by a stranger. L.X. was fearful of contracting a sexually transmitted disease and asked to be taken to the hospital. It is not reasonably possible that in the brief interval of time between appellant's flight from the apartment and L.X.'s successful effort to obtain help that that the two women concocted a coherent plan to frame appellant for sexual assault, injured themselves, planted evidence, and then L.X. stripped naked and ran out of the apartment.
Having examined the entire record, we find that if the contested testimony had been excluded, the jurors might have concluded that L.X.'s belief that appellant ejaculated inside her body was mistaken. Yet, reasonable jurors would not have found that L.X. had not been raped. Ejaculation by the perpetrator is not an element of rape. (People v. Wallace (2008) 44 Cal.4th 1032, 1079.) It is not reasonably possible that the jury would have returned a more favorable verdict if the contested testimony had been excluded. Thus, appellant's contentions that the judgment must be reversed due to evidentiary error and his claim of ineffective assistance of counsel fail for lack of prejudice.
C. Imposition of full, separate and consecutive terms for counts 1 and 2 was legally correct and was not an abuse of discretion.
Appellant filed a sentencing brief on October 29, 2010, in which he argued, in relevant part, that the two rapes of L.X. occurred on the same occasion and, therefore, the sentences imposed for counts 1 and 2 (the rapes) should run concurrently.
The prosecutor filed a sentencing brief on November 4, 2010. He argued the rapes occurred on separate occasions within the meaning of section 667.6, subdivision (d), and therefore section 667.61, subdivision (e) mandates imposition of full, separate and consecutive sentences for counts 1 and 2.
A probation report was filed on November 9, 2010. The probation officer wrote that he did not have access to the trial transcripts when he prepared the report. Therefore, "it is possible that additional and/or conflicting information was developed during the course of the trial that would contradict the summary offered." Then the probation officer summarized the factual circumstances of the offenses based on police reports. In relevant part, the probation officer recommended that a term of 25 years to life plus one year be imposed for count 1 and that full and consecutive terms be imposed for counts 2 and 3 because the two rapes of L.X. and the digital penetration of Q.H. occurred on separate occasions. He reasoned:
"... Section 667.61(i) of the Penal Code mandates sex offenses against separate victims or the same victim on separate occasions be punished consecutively. Case law has established that separate occasions can include a 'break in the action'. In this case the defendant stopped raping victim, [L.X.] when Q.H. entered the room. After shoving Q.H. into a corner and threatening her with the knife, the defendant began raping [L.X.] again. The defendant had sufficient time to reflect on his behavior and discontinue the assault. Instead, he raped [L.X.] again and when he finished, he attempted to rape Q.H. and forcibly penetrated her with his fingers."
The sentencing hearing was conducted on November 9, 2010. Defense counsel did not alert the court to any factual errors in the probation report. He argued "the Apprendi rule applies," and submitted the matter on the contents of his sentencing brief. In relevant part, the prosecutor argued the two rapes on L.X. were committed on separate occasions.
The court ruled that the Sixth Amendment to the United States Constitution "does not require a jury finding as to whether or not those attacks were separate sexual assaults." The court found "this is a situation given its bare facts that there were separate rapes on [L.X.], as well as a separate sexual assault on [Q.H.]...." The court said, "All right, just a minute, let me check one thing so that -- all right." Then the court continued:
"[L.X.] was raped. She was raped first. There was another assault on [L.X.] after [Q.H.] came into the room. There was an attempted rape of [Q.H.] thereafter. That attempt did not go any further than an attempt. There was digital penetration as to [Q.H.]. So I've reviewed those -- that history of the separate attacks, and I do find they were separate acts ...."
The court also ruled:
"It appears that this is a mandatory consecutive sentence by operation of law based upon my finding that there were four separate violent sexual assaults on two separate women, that those sexual assaults occurred on separate occasions and those crimes were independent of each other and involved separate acts of violence and involved an overall pattern of violent conduct. If this -- if the sentence was not a mandatory sentence, considering the totality of the circumstances, I would -- if it was a discretionary sentence, I would impose the consecutive sentence based on the considerations that I've named."
The court imposed a sentence of 25 years to life plus one year for count 1 served consecutive to the term imposed for count 9, and it imposed a sentence of 25 years to life plus one year for count 2 served consecutive to the term imposed for count 1.
D. Appellant forfeited his challenge to the factual accuracy of the probation report and his claim the court was misinformed about material facts.
Appellant argues the court's finding that the two rapes were committed on separate occasions was not an informed decision because the probation report contained a factual error (i.e., it incorrectly stated that appellant raped L.X. the first time before Q.H. entered the bedroom) and the court relied on the probation report during the sentencing hearing. As we will explain, these points were forfeited because appellant failed to bring the error in the probation report to the court's attention during the sentencing hearing.
"It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 234.) If appellant forfeits an error by failing to object on this ground during the sentencing hearing, he "similarly waives error based upon the adequacy of the record on that point." (People v. Forshay (1995) 39 Cal.App.4th 686, 690 (Forshay).) "The purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
The record in this case affirmatively demonstrates that defense counsel did not bring the error in the probation report to the court's attention during the sentencing hearing. If appellant had objected in a timely manner to the factual error in the probation report the court could have corrected it. "A party, aware of relevant facts, cannot withhold them from the court and then blame the tribunal for failing to ferret out that known to the party all along." (Forshay, supra, 39 Cal.App.4th at p. 689.) Having failed to bring the error to the sentencing court's attention, appellant cannot now challenge imposition of consecutive sentences based on any purported misstatements in the probation report. (Ibid.) And he cannot claim that the court's sentencing decision was misinformed about material facts due to the court's reliance on the contents of the probation report. (Id. at p. 690.) By failing to alert the sentencing court to the factual error in the probation report, appellant forfeited appellate review of these claims. (People v. Welch, supra, 5 Cal.4th at p. 234; Forshay, supra, 39 Cal.App.4th at pp. 689-690.)
We note that the sentencing arguments raised by appellant do not fall within the narrow exception to the waiver doctrine for unauthorized sentences. "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) Appellant's claims that the probation report was factually mistaken and the sentencing court was misinformed are both fact intensive inquiries that are subject to forfeiture.
Also, an ineffective assistance claim based on defense counsel's failure to alert the sentencing court to the factual error in the probation report would fail for lack of prejudice. As will be explained, post, imposition of full, separate and consecutive terms for counts 1 and 2 was legally correct and was not an abuse of discretion. It is not reasonably probable that the court would have imposed a more lenient sentence if defense counsel had alerted the court to the factual error in the probation report.
E. The record supports the court's finding that the two rapes took place on separate occasions.
Appellant also argues the record does not support the court's finding that the two rapes of L.X. took place on separate occasions. He is wrong; the record fully supports the trial court's finding that appellant raped L.X. on two separate occasions.
In relevant part, subdivision (d) of section 667.6 provides:
"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 the 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."
Subdivision (i) of section 667.61 provides:
"For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), … the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6."
"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 assaultive behavior." (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)
"[T]he appropriate analysis for determining whether sex offenses occurred on 'separate occasions' was whether the defendant had a reasonable opportunity for reflection." (People v. Jones (2001) 25 Cal.4th 98, 105 (Jones).) The standard established by section 667.6, subdivision (d), is "broad" and "the Courts of Appeal have not required a break of any specific duration of any change in physical location" to support a finding of separate occasions. (Jones, supra, at p. 104.)
In Jones, our Supreme Court resolved a challenge to imposition of three consecutive terms under section 667.61, subdivision (g). In the process, it discussed the term "separate occasions," as used in section 667.6, subdivision (d). In relevant part, it observed, "In the case of a defendant who sequentially assaults multiple victims even in close temporal and spatial proximity, it would be difficult to imagine the crimes ever occurring 'during a single occasion' under Penal Code section 667.61, subdivision (g), because the perpetrator would virtually always have an opportunity for reflection when changing victims." (Jones, supra, 25 Cal.4th at p. 106; see also, e.g., People v. Garza, supra, 107 Cal.App.4th at pp. 1091-1093.)
Here, ample evidence supports the sentencing court's finding that the two rapes of L.X. occurred on separate occasions because appellant had an opportunity for reflection when he changed victims. Appellant assaulted L.X. with a sock, aborted the assault to gain control over Q.H. and then resumed the assault on L.X. He raped L.X. face-down on the bed. Then he directed her to crouch by the end of the bed. After unsuccessfully attempting to rape Q.H. and digitally penetrating her, appellant returned to L.X. L.X. testified that appellant said, "Don't move. My name is Mike. Don't move, I'll kill you." Then appellant asked her if she had any money. When she told him that she did not have any money, he hit her in the head. Then appellant forced L.X. back onto the bed and raped her again, face-up this time. The alternating sexual assaults between two victims support a finding of separate occasions. "Within each series of sex acts, [the defendant] alternated between the victims. Thus, each sexual act on one victim occurred on separate occasions, preceded or succeeded by a sexual assault on the other." (People v. Bishop (1984) 158 Cal.App.3d 373, 380.)
Although the trial court might have incorrectly thought Q.H. was not in the room during the first rape, this fact was not determinative. It was appellant's act of sexually assaulting Q.H. after the first rape and then returning to L.X., threatening to kill her and raping her a second time, that supports the finding of separate occasions.
For these reasons, we hold that imposition of separate, full and consecutive terms for counts 1 and 2 is not an abuse of discretion. The sentence is lawful and does not violate any of appellant's constitutional rights. (Cf. People v. Bishop, supra, 158 Cal.App.3d at pp. 379-380.)
DISPOSITION
The judgment is affirmed.
_________________________
LEVY, Acting P.J.
WE CONCUR:
_________________________
KANE, J.
_________________________
FRANSON, J.