P. v. Gonzalez

Filed 8/20/07 P. v. Gonzalez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Zaven V. Sinanian, Judge. Affirmed.

Edward J. Haggerty, P.C., and Edward J. Haggerty for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

The jury found defendant Andres Gonzalez guilty of two counts of forcible rape, in violation of Penal Code section 261, subdivision (a)(2),^[1]one count of forcible sodomy, in violation of section 286, subdivision (c)(2), and one count of forcible oral copulation, in violation of section 288a, subdivision (c)(2). The victim in all counts was A. As to one forcible rape count (count sevenoccurring at defendants apartment), the jury found defendant kidnapped A. within the meaning of section 667.61, subdivisions (d)(2) and (e)(1). The jury acquitted defendant of kidnapping to commit rape in violation of section 209, subdivision (b)(1).^[2] The trial court imposed a 25-year-to-life sentence on the aggravated kidnapping conviction under section 667.61, subdivision (d)(2). Full, separate, and consecutive midterm sentences of six years were imposed pursuant to section 667.6, subdivision (d),^[3]on the second rape conviction and on the forcible oral copulation conviction. A concurrent six-year term was imposed on the forcible sodomy conviction. Defendants total sentence was 37 years to life.

In this timely appeal, defendant contends the true findings on the kidnapping special allegations are inconsistent with his acquittal of kidnapping to commit rape, and substantial evidence does not support the kidnapping special allegations. He argues instructional error and that the imposition of consecutive terms violated his federal constitutional right to a jury trial. We hold the verdict is not inconsistent, substantial evidence supports the jurys verdicts, and no prejudicial instructional error occurred. We further hold the imposition of consecutive terms did not violate defendants constitutional rights. Therefore, we affirm the judgment.

STATEMENT OF FACTS

Prosecution Case

A. and defendant worked for the U.S. Forest Service. They had a romantic relationship for 11 months in 2004. A. broke up with defendant after he was physically aggressive toward her. On one occasion, defendant pinned A. against a wall with his hand over her neck. On another occasion, when he was angry with her for dancing with another man, he pushed her into a car with such force that her body dented the car.

In April 2005, A. and another coworker were living in the barracks in the Angeles National Forest. On April 19, 2005, defendant called A. and asked her if he could come over to her barracks that night. She told him no.

A. returned to the barracks at 9:30 p.m. on April 19 after a long and tiring day of work and classes. She changed into her pajamas and went to bed. The coworker she shared the barracks with was not there. A. had a baseball bat for protection from wild dogs in the area. A. heard a door rattle and left her bedroom to investigate. She discovered defendant in the hallway wearing pajamas. A. reminded him she had told him not to come. Defendant told her he missed her, wanted to sleep with her, and wanted her to wear his engagement ring. She told him to leave. When he refused, she grabbed her bat and tried to leave herself, but defendant blocked her exit.

A. was so afraid she was shaking and crying. Defendant told her he would not allow her to leave, but promised he would leave himself once she calmed down. She insisted he leave, but he again refused. Defendant forced her to sit down on the living room couch. To get him to leave, A. started to calm down. However, defendant snatched her bat and threw it aside. A. again ran from one door to another to get away from defendant, but he grabbed her and would not let go. A. had possession of the keys to her bedroom door, which was locked. Defendant suspected someone was in there whom A. did not want him to see.

After moving into another bedroom, defendant mounted A., pinning her to the bed, and choked her with his forearm on her neck until she passed out. A. was afraid from that moment until the entire ordeal ended. When A. regained consciousness, she found herself on the floor with defendant on top of her demanding she have sex with him. Defendant repeatedly commanded, tell me you want me to fuck you. Afraid, A. told defendant youre going to kill me. Defendant raped her several times as he continued to demand, tell me you want me to fuck you. Tell me that you love me. Tell me that you want me to fuck you. Defendant forced his penis into her mouth, thrusting it back and forth A. tried to keep her mouth closed but was afraid of what he would do to her if she overtly resisted, so she pretended to choke and be in physical distress in order to persuade defendant to stop.

Defendant, now in possession of the key to A.s bedroom door, dragged A. into her bedroom. No one was there. Defendant raped her again three times. A. testified defendant tried putting his penis in [her anus]. [] Q. And that hurt? [] A. Yes. A. elaborated: [When he] tried putting [his penis] in, I thrusted my hips forward and screamed because it hurt.

A. pretended to choke, spit up, and lose consciousness, as if she were going into respiratory arrest, to get defendant to stop. Defendant said he would take her to the hospital. He dressed her and carried her to his car by cradling her in his arms. She remained limp, as if she were unconscious. A. did not want to go with him, but she had no other choice, and she hoped he would take her to the hospital. The time was now midnight, and defendant had been in the barracks two hours.

At first, A. thought defendant was taking her to the hospital, but instead he drove to his residence in Torrance about one hour away. On the way, he kept telling her they were going to a hospital. In fear, A. feigned unconsciousness. When defendant stopped the car, he carried her through the gate of his building into his vacant apartment. A. made her body go heavy and tried to scream. However, his arm covered her mouth. Defendant raped her on the floor of his room repeatedly. A. and defendant fell asleep. When they awoke, A. pretended her throat was injured and she needed medical attention. Defendant asked what she would tell the doctor, and she replied she would not tell what had really happened but would say she choked on a sandwich. Defendant put his hands over his head and said, Oh, my god, what did I do? What did I do? . . . I hurt you. . . . What are you going to tell them? Im going to get in trouble. A. convinced him she would not tell anyone what had happened, and after four hours in his apartment, he took her to a hospital.

Once at the hospital, A. was finally able to get away from defendant and obtain help. Medical personnel observed she was extremely distraught, crying, and shaking. There was a red mark and scratch on her left upper arm, swelling to her hymen and both labia minora, and abrasions on her posterior fourchette where the skin was rubbed off. These symptoms were indicative of blunt traumas to those areas and nonconsensual sex. Two days after the attack, A. was still hoarse, had pain in her neck and throat, and found it difficult to swallow, as a result of the choking. An otolaryngologist determined she suffered soft tissue injuries, or swelling, to the front part of her neck and tenderness around the left shoulder region. Blockage of the windpipe can cause unconsciousness and result in injuries such as those found on A.

Defense Case

Defendant, testifying in his own defense, denied he struck, pushed, or choked A. that night. He thought A. was cooperating and consenting throughout the course of their sexual activities that evening.

On April 19, 2005, A. invited defendant to the barracks to bring her lunch for the next day. He arrived at 10:30 p.m. wearing pajama bottoms and a sweater. At 1:00 a.m., after chatting and arguing, getting upset and making up, A. suggested they spend the night together. Laying on top of the bed, they kissed, stroked each other, performed oral sex and had intercourse. A. spread her legs open when they had intercourse and told defendant, Dont stop. When his penis hit the back of her throat during oral sex and she started coughing and gagging, defendant stopped.

Defendant decided to go to his house in Torrance because he was not allowed to be in the barracks and he did not want anyone to find him there. He intended to bring A. back to the barracks in time for her to leave for work at 6:00 a.m. She agreed to this plan. He did not tell her he was going to take her to the hospital. Before they left to go to his apartment, however, A. began to do a little strip tease for him and they attempted to have anal sex, but it only lasted two minutes because they were worried someone would find them there and she started coughing again. They drove to his residence in Torrance, more than 40 miles away. They lay down in the bedroom, talked briefly, and started having sex again. They stopped when A. began coughing. They were laying down together and she hugged him. Defendant confessed to her he had cheated on her when they were together. All A. did was loosen her hug, and he fell asleep. She woke him up at 5:30 a.m. and indicated her throat hurt. He drove her to a hospital.

DISCUSSION

The Verdicts Are Consistent

Defendant was acquitted of kidnapping to commit rape in violation of section 209, but the jury found true kidnapping allegations under section 667.61, subdivisions (d)(2)^[4]and (e)(1).^[5] Defendant contends the jurys acquittal on the section 209 charge is irreconcilably inconsistent with the kidnapping findings under section 667.61, subdivisions (d)(2) and (e)(1). Defendants argument fails for two reasons: an inconsistent verdict is not a basis for reversal and there is no inconsistency.

First, defendants argument suffers from a faulty premise by maintaining that inconsistent verdicts are impermissibleto the contrary, an acquittal of one count is not deemed to be an acquittal of any other count. (Evid. Code,  954.)^[6] [A] verdict of conviction on one count which appears inconsistent with a verdict of acquittal on another count . . . shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted. [Citation.] (People v. Hamilton (1978) 80 Cal.App.3d 124, 130.) Verdict inconsistency may be the result of a jury compromise or grant of lenity to the defendant, and the defendant is sufficiently protected from jury irrationality or error by appellate review of the sufficiency of the evidence supporting the conviction. (People v. Lewis (2001) 25 Cal.4th 610, 656 [An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict]; People v. Palmer (2001) 24 Cal.4th 856, 863; People v. Pahl (1991) 226 Cal. App. 3d 1651, 1656.)

Citing People v. Hamilton, supra, 80 Cal.App.3d 124, defendant contends there is a limited judicial exception to the rule that an acquittal of one crime shall not be deemed an acquittal of another crime when all the essential elements of the crime the defendant was acquitted of are identical to the essential elements of the crime to which the defendant was convicted. Such an exception existed in the past, limited in application to conspiracy cases. (People v. Pahl, supra, 226 Cal.App.3d at pp. 1657-1659.) However, our Supreme Court has now rejected a rule that verdicts must be consistent. (People v. Lewis, supra, 25 Cal.4th at p. 656; People v. Palmer, supra, 24 Cal.4th at pp. 864-865.)

Second, there is no inconsistency in the verdict. Kidnapping for the purpose of rape, in violation of section 209, requires proof of a specific intent to rape. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151, fn. 6.) The specific intent requirement of section 209 is not shared by the section 667.61 allegations. (People v. Jones (1997) 58 Cal.App.4th 693, 716-717.) As noted in Jones, The Legislature deliberately imported the risk of harm requirement into the one strike aggravated kidnapping circumstance. We see no reason to drag the specific intent requirement along with it. (Id. at p. 717.) Section 207,^[7]the simple kidnapping statute, is a general intent crime (People v. Moya (1992) 4 Cal.App.4th 912, 916 (Moya)) which does not share the specific intent requirement of section 209.

Finally, as discussed more fully below, where there is a claim of inconsistent verdicts, the issue is whether the verdict is supported by substantial evidence. (United States v. Powell (1984) 469 U.S. 57, 67; People v. Lewis, supra, 25 Cal.4th at p. 656.) As will be seen, we conclude the necessary substantial evidence is present.

The Evidence Is Sufficient

Substantial Evidence Supports the Kidnapping Finding That Defendant Used

Force

Defendant contends the evidence is not sufficient to support the element of force or fear required for kidnapping in violation of section 207. As the jury was not instructed on kidnapping by means of fear, we limit our discussion to the sufficiency of the evidence of forceevidence we find to be solid and credible.

The kidnapping allegations in section 667.61, subdivisions (d)(2) and (e)(1) required the jury to determine if defendant kidnapped A. ( 667.61, subds. (d)(2), (e)(1).) The force used against the victim need not be physical. The movement is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he or she fears harm or injury from the accused and such apprehension is not unreasonable under the circumstances. [Citations.] (People v. Majors (2004) 33 Cal.4th 321, 326-327.) [T]he force or fear element of section 207[, subdivision (a)] kidnapping [is satisfied] if the defendants conduct or statements cause the victim to believe that unless the victim accompanies the defendant the victim will be forced to do so, and the victims belief is objectively reasonable. (Id. at p. 331 [entering the defendants car under an implicit, although false, threat of arrest satisfies the force requirement].) Asportation may be accomplished by means that both fraudulently induce the victim to willingly be transported and involve force or fear. (Id. at p. 328.)

We need not be convinced beyond a reasonable doubt that [the] defendant kidnapped [the victim] by force. We must merely determine whether any rational trier of fact at all could be so persuaded. [Citation.] The factfinder may weigh the credibility of witnesses and draw all reasonable inferences from the evidence. . . . [T]estimony, supported by circumstantial evidence suggesting [the victim] would not have gone voluntarily[,] furnish an ample basis for a finding of forcible kidnapping. (People v. Alcala (1984) 36 Cal.3d 604, 623.) In determining whether the record contains substantial evidence of force or fear, we do not resolve evidentiary conflicts, but view the evidence in a light most favorable to the People, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Majors, supra, 33 Cal.4th at p. 331.)

The evidence of force prior to and during the asportation is overwhelming. While in the barracks, A. was taken by surprise by defendant, disarmed of a baseball bat she had for protection, choked, sexually assaulted, and feared she was going to be killed. A.s desire to go to a hospital is not evidence of a voluntary movement on her part, but an indication of her desire to escape further forcible attacks by defendant. A. pretended she was injured and suffering from a respiratory arrest as a ruse to stop defendants assault. Because she appeared unconscious, defendant did not continue molesting her in the barracks and instead moved A. into his car. A. testified defendant picked her up and carried her all the way to the car and put her into the car. She had to let him carry her because she was pretending to be unconscious. A. felt she had no choice, and she continued to be afraid of him in the car. While A. may have held out hope that defendant would take her to the hospital, the reality is that she went with him to avoid further physical attack in the barracks.

Defendant continued to move A. by force when they arrived at his apartment. He carried her inside, while A. made her body go heavy and tried to scream while defendants arm covered her mouth. Based upon this record, a reasonable trier of fact would have been hard pressed to justify a finding that force was not used in the asportation. Substantial evidence exists to support the kidnapping findings.

There Was No Instructional Error

Kidnapping Instruction

Defendant contends the trial court erred in failing to instruct the jury that the force used in committing kidnapping must instill fear in the victim.^[8] This is an incorrect statement of the law. (Moya, supra, 4 Cal.App.4th at pp. 915-916.)

The defendant in Moya made the same argument that defendant makes in this case. As in this case, the appellants contention in Moya is premised on an incorrect reading of section 207, subdivision (a) as amended in 1990. Prior to 1990, section 207, subdivision (a) provided: Every person who forcibly steals, takes, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. As amended in 1990, this section now provides: Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. (Italics added.) [] [The defendant] contends: [T]he phrase or by any other means of instilling fear, in reference to the term forcibly, defines the word forcibly and suggests an intent that any force necessary to constitute kidnapping must instill fear in the victim. (Moya, supra, 4 Cal.App.4th at pp. 915-916.) The court rejected the defendants contention that the use of force must actually instill fear . . . . [] . . . [] [We do not] interpret the statute as now requiring an additional element before a conviction for kidnapping can be sustained. Prior to the amendment, kidnapping could only be sustained upon a finding that the person was taken, stolen or arrested by the use or threat of force. . . . If a persons free will was not overborne by the use of force or the threat of force, there was no kidnapping . . . . [] As we read the amended version of section 207, kidnapping can now be accomplished not only by the application of force or threats of force but also by other methods which instill fear. Rather than modifying and defining (and thereby limiting) the word forcibly as contended by [the defendant], the phrase by any other means of instilling fear expands the types of methods by which a person can overcome the free will of his or her victim. Thus, rather than being an additional element for the crime of kidnapping, the new language provides an alternative basis for finding a defendant guilty of kidnapping. (Id. at pp. 916-917.)

Instructions on the Kidnapping Allegations Under Section 667.61

Defendant contends the trial court erred in failing to instruct the jury that the defenses of consent and reasonable, good faith belief in consent applied to the section 667.61 allegations that defendant kidnapped A. in connection with the rape charged in count seven. The jury was properly instructed.

The trial court instructed the jury that, in order to find the kidnapping special allegations true, the jury had to find that defendant kidnapped A. The trial court instructed the jury in the language of CALJIC Nos. 9.56^[9]and 9.58^[10]that consent and reasonable and good faith belief the victim consented are defenses to kidnapping. The trial court instructed that the kidnapping referred to in the section 667.61 allegations was defined in CALJIC No. 9.50. CALJIC No. 9.50 instructed that the crime of kidnapping required proof A. did not consent to the movement. Thus, the jury was informed that, in order to find the kidnapping special allegations true, it had to find defendant kidnapped A. and the defenses of consent and reasonable, good faith belief did not apply. Significantly, the jury was instructed pursuant to CALJIC No. 1.01 to [c]onsider the instructions as a whole and each in light of all the others.

It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 328.) Taken as a whole, the instructions clearly indicate that the defenses of consent and good faith and reasonable belief in consent apply to the section 667.61 kidnapping allegations. There is no reasonable probability that the jury was misled. (Ibid.)

To the extent that defendant argues that the trial court should have, in addition, specifically pointed out to the jury that consent (CALJIC No. 9.56) and reasonable and good faith belief in consent (CALJIC No. 9.58) applied to the special kidnapping allegations under section 667.61 as well as to the charge of kidnapping to commit rape under section 209, subdivision (b), defendant forfeited the contention, because he did not raise the issue below. (People v. Bolin, supra, 18 Cal.4th at pp. 327-328 [the defendant forfeited the contention that the trial court had a duty to define reasonable doubt again in the context of the instruction that the special circumstances had to be found true beyond a reasonable doubt].) When [t]he instruction correctly states the law, and defendant did not request clarification or amplification[, the defendant] has therefore waived the issue on appeal. (Id. at p. 328.)

Lesser Included Offense Instructions

Jury Instructions

Defendant contends the trial court committed reversible error in failing to instruct the jury on attempted forcible sodomy and battery as lesser included offenses of forcible sodomy. Any error in this regard was invited by the defense, and cannot serve as a basis for reversal. Moreover, if there was error, it was nonprejudicial.

[Although a] court must generally instruct the jury on lesser included offenses whenever the evidence warrants the instructions, whether or not the parties want it to do so[,] [] . . . [] [a] defendant may not invoke a trial courts failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial court not to instruct on a lesser included offense supported by the evidence. [Citations.] In that situation, the doctrine of invited error bars the defendant from challenging on appeal the trial courts failure to give the instruction. [Citation.] (People v. Horning (2004) 34 Cal.4th 871, 904-905.)

The parties agree that attempted sodomy and battery are lesser included offenses of sodomy. They are correct. (People v. Hughes (2002) 27 Cal.4th 287, 366; CALCRIM No. 1030 [listing both battery and attempted sodomy as included offenses].)

The proposed jury instructions originally included instructions regarding lesser included offenses. As the instructions were finalized, the lesser included offense instructions were deleted. The prosecutor told the court, we both agree that its an all or nothing case, that there really isnt any lesser included or related offenses that the defense wants presented. The trial court then asked counsel if he so stipulated, and counsel replied, so stipulated.

This record is sufficient to demonstrate an express tactical decision by the defense to try the case on the charges as plead, recognizing that lesser included offense instructions were inconsistent with the complete defense of consent. Although it was the prosecutor who set forth the basis for the agreement not to instruct on lesser included offenses, defense counsel expressly adopted the prosecutors statement by stipulating to the representation that it was an all or nothing case and there were not any lesser included or lesser related offenses that the defense wants presented. This colloquy represents a tactical decision by defendant to forego the lesser included offense instructions, rather than mere unconsidered acquiescence. [Citation.] (People v. Horning, supra, 34 Cal.4th at p. 905) Accordingly, defendant will not be heard to complain on appeal that these lesser included offense instructions were not given.

In any event, the failure to instruct on lesser included offenses is state court error judged under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 165 (Breverman).) Under this standard, we reverse only if an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Ibid.) Considering the strength of the prosecution evidence in this matter, combined with the jurys rejection of the defense of consent, there is no reasonable probability the lack of lesser included offense instructions affected the verdict. Error, if any, was harmless.

Defendants contention that the lack of instructions on lesser included offenses resulted in a denial of his right to a jury trial under the 6th and 14th Amendments is answered by our Supreme Courts decision in Breverman, supra, 19 Cal.4th at pages 164-173. In a lengthy analysis, the court in Breverman found no federal constitutional right to lesser included offense instructions in a noncapital case. No further analysis of the issue is required by this court, as we are bound by Breverman. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The Instruction on Consent Did Not Violate Due Process

The jury was instructed on consent in the language of CALJIC No. 1.23: To consent to an act or transaction, the person: 1. must act freely and voluntarily and not under the influence of threats, force, or duress; 2. must have knowledge of the true nature of the act or transaction involved; and 3. must possess the mental capacity to make an intelligent choice whether or not to do something proposed by another person. Merely being passive does not amount to consent. Consent requires a free will and positive cooperation in act or attitude. Defendant contends that excluding passive acquiescence from the instruction on consent is unconstitutional because passive acquiescence is a longstanding defense to sex crimes. He further argues the instruction creates a mandatory presumption that consent was lacking when there is proof the victim did not positively cooperate, which unconstitutionally shifts the burden of proof on the issue to defendant.

A similar argument was presented and rejected in People v. Gonzalez (1995) 33 Cal.App.4th 1440, 1442-1444 (Gonzalez). We agree with the analysis and find it applies in this case. In Gonzalez, the defendant was convicted, inter alia, of assault with intent to commit unlawful oral copulation. (Gonzalez, supra, 33 Cal.App.4th at p. 1441.) As in this case, the jury was instructed that the act had to be accomplished against the will of the victim by means of force or fear.^[11] (Id. at pp. 1442, 1442, fn. 1.) The jury was instructed in the language of CALJIC No. 1.23.1^[12]on the definition of consent. (Id. at p. 1442.) The defendant argued that CALJIC No. 1.23.1 offend[ed] deeply rooted principles of justice and violates due process, because it excluded passive consent. (Gonzalez, supra, 33 Cal.App.4th at p. 1444.) The court rejected the argument: We find appellants argument unpersuasive here inasmuch as the jury was instructed regarding the target offense that not only must the oral copulation be against the alleged victims will to be unlawful but also that the act must be accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the alleged victim. [Citation.] Instruction with CALJIC No. 1.23.1 did not violate due process.^[13] (Gonzalez, supra, 33 Cal.App.4th at p. 1444.)

The defendant also contended that instruction on consent impermissibly shifted the burden of proof and created a presumption of lack of consent. (Gonzalez, supra, 33 Cal.App.4th at p. 1443.) The Court of Appeal rejected the argument: The contention that the trial court erred in instructing the jury with CALJIC No. 1.23.1 is unavailing. CALJIC No. 1.23.1 did not shift the burden of proof on consent to the defense or create a presumption of lack of consent. The instruction merely defined consent. Considered together, CALJIC Nos. 1.23.1, 9.09 [instruction on assault to commit unlawful oral copulation], and 10.10 [instruction on unlawful oral copulation] clearly indicated the prosecution had the burden of proving lack of consent. (Gonzalez, supra, 33 Cal.App.4th at p. 1443.)

Consecutive Sentence

Defendant contends the imposition of consecutive sentences under section 667.6, subdivision (d) was based on facts not found by a jury and violates his constitutional rights to a jury trial and due process under the reasoning of Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The California Supreme Court has twice held that Cunningham does not apply to consecutive sentencing imposed pursuant to section 669. (People v. Black (July 19, 2007, S126182) __ Cal.4th __ [2007 Cal.Lexis 7604, at pp. *41-47]; People v. Black (2005) 35 Cal.4th 1238, 1261-1264, disapproved on another ground in Cunningham, supra, __ U.S. at p. ___ [127 S.Ct. at pp. 868-871.) We believe this conclusion applies to consecutive sentencing under section 667.6, subdivision (d) as well, because no additional factual finding was required to be made for the imposition of the statutory maximum of full, consecutive sentences.

A full, separate, and consecutive sentence must be imposed for each violation of enumerated offenses if the trial court finds that the crimes . . . involve the same victim on separate occasions. ( 667.6, subd. (d).) A full, separate, and consecutive sentence may be imposed for each violation of those enumerated offenses if the trial court finds that the crimes involve the same victim on the same occasion. (Id., subd. (c).) Thus, the statutory maximum of a full, consecutive term for the enumerated violations is the same, with or without the special finding of separate occasions. Because there is no increase in punishment beyond the statutory maximum, consecutive sentencing under section 667.6, subdivision (d) for same victim on separate occasions raises no due process or Sixth Amendment concerns.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

MOSK, J.

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^[1] All further statutory references are to the Penal Code, unless indicated otherwise.

^[2] The jury also acquitted defendant of sexual penetration by a foreign object in violation of section 289, subdivision (a)(1), and first degree burglary in violation of section 459.

^[3] The trial court made findings that the second rape and the forcible oral copulation involved the same victim on separate occasions.

^[4] Section 667.61, subdivision (d)(2), establishes the following one strike allegation: The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).

^[5] Section 667.61, subdivision (e)(1), establishes the following one strike allegation: Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207.

^[6] Evidence Code section 954 provides: An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.

^[7] Section 207 provides in pertinent part as follows: (a)  Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

^[8] The jury was instructed in the language of CALJIC No. 9.50 in pertinent part as follows: Every person who unlawfully and with physical force, steals or takes or holds, detains or arrests another person and carries that person without her consent for a distance that is substantial in character, is guilty of the crime of kidnapping in violation of . . . section 207, subdivision (a). [] . . . [] In order to prove this crime, each of the following elements must be proved: [] One, A person was unlawfully moved by the use of physical force; Two, the movement of the other person was without her consent; and Three, the movement of the other person in distance was substantial in character.

^[9] The jury was instructed in the language of CALJIC No. 9.56: When one consents to accompany another there is no kidnapping so long as the condition of consent exists. [] To consent, a person must, 1. act freely and voluntarily and not under the influence of threats, force, or duress; 2. knowledge that he or she was being physically moved; and 3. possessed sufficient mental capacity to make an intelligent choice to be physically moved by the other person or persons. Being passive does not amount to consent. Consent requires a free will and positive cooperation in action or attitude.

^[10] The jury was instructed in the language of CALJIC No. 9.58: It is a defense to the crime of simple kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. [] If from all the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find him not guilty of kidnapping.

^[11] In this case, in connection with the charges of forcible rape, in violation of section 261, subdivision (a)(2), forcible sodomy, in violation of section 286, subdivision (c)(2), and forcible oral copulation, in violation of section 288a, subdivision (c)(2), the jury was instructed that the prosecution must prove the act was accomplished against the alleged victims will by means of force, violence, duress, or menace or fear of bodily injury on the alleged victim.

^[12] CALJIC No. 1.23.1 instruction given in Gonzalez was: In prosecutions under Penal Code section 288a [unlawful oral copulation], the word consent means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and must have knowledge of the nature of the act or transaction involved. [] The fact, if established, that the defendant and Diane [A.] engaged in a current or previous dating relationship does not by itself constitute consent. (Gonzalez, supra, 33 Cal.App.4th at p. 1443, fn. 1.)

^[13] For purposes of applying the analysis of Gonzalez to this case, the distinction that CALJIC No. 1.23 expressly excludes passive acquiescence and CALJIC No. 1.23.1 is not a distinction without a difference, because the defendant in Gonzalez urged, and the Court of Appeal agreed, that CALJIC No. 1.23.1 excluded passive acquiescence. (See Gonzalez, supra, 33 Cal.App.4th at p. 1444.)