P. v. Niebla

Filed 8/20/07 P. v. Niebla CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Remanded and affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Michael R. Johnsen, and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jose Niebla was convicted by jury of kidnapping, two counts of inflicting corporal injury on a former cohabitant, residential burglary, two counts of dissuading a witness by force or threat, assault by means likely to produce great bodily injury, uttering a criminal threat, sexual penetration with a foreign object, forcible oral copulation, three counts of forcible rape, two counts of battery inflicting injury upon a peace officer, and resisting an executive officer by use of force or violence. (Pen. Code,  207, subd. (a);[1] 273.5, subd. (a); 459; 136.1, subd. (c)(1); 245, subd. (a)(1); 422; 289, subd. (a)(1); 288, subd. (c)(2); 261, subd. (a)(2); 243, subd. (c)(2); 69.) He was also convicted of the misdemeanor offenses of assault, committing a lewd act in the presence of a minor, and child endangering. ( 240; 273g; 273a, subd. (b).) The jury found that the sexual penetration with a foreign object, oral copulation, and rapes were committed during the commission of a burglary. ( 667.61, subds. (b) and (e)(2).) Defendant was sentenced to five consecutive 15 year-to-life terms and a consecutive determinate term of 39 years and eight months. He appeals, contending that the trial court failed to properly instruct the jury on the burglary charge and sentenced him improperly to consecutive life terms for the offenses of sexual penetration with a foreign object, oral copulation, and rape and concurrent terms for the offenses of assault and inflicting corporal injury on a former cohabitant. He also argues that his counsel was ineffective for failing to request a pinpoint instruction on the burglary charge. In anticipation that this matter will be remanded for resentencing, he asserts that the imposition of full consecutive sentences under section 667.6 violates his Sixth Amendment right to a jury trial. We affirm the convictions and remand the matter for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Prosecution Case

All of defendants convictions resulted from incidents which took place during two days in December of 2003. The principal victim was defendants former girlfriend and cohabitant, Ana E. According to Ana, they lived together off and on for approximately three to four months. She asked him to leave the house they shared in November 2003, but they continued to see each other. Defendant had never been given a key to the house, although Ana acknowledged that he provided money for part of the rent.

On December 10, 2003, Ana and defendant went to a nightclub. While there, they had an argument. She knocked their drinks off the table, and security personnel escorted them out of the nightclub. Once outside, Ana told security personnel that she did not want to leave with defendant. Defendant told her that if she refused to get into the car, he would pull out a gun and start shooting. When the valet brought the car, defendant pulled her inside and they left the location.

As they drove, defendant punched Ana in her face, head, and leg. She passed out. When she regained consciousness, they were in front of the motel where defendant was staying. As they walked toward the room, a man asked her if she was all right. Although she was crying and upset, Ana kept her head down and did not respond. Defendant said that she was fine. When the man pressed Ana for an answer, defendant held her arm tightly and told her to say she was fine. She did so.

Once inside the room, defendant accused her of seeing other men. He told her that he wanted to have sex with her one last time, and that if she agreed, he would leave her alone. Ana said no. They continued to argue. When Ana said that she wanted to go home, he ripped off her shirt, lifted her skirt, and removed her underwear. Defendant got on top of her and removed a tampon from her vagina. As he tried to penetrate her, Ana grabbed defendants testicles. He bit her breast and inserted his penis into her vagina.[2] After the sex act, they continued to argue, and eventually fell asleep.

When Ana awoke, she asked defendant to take her home. He refused, saying that they were going shopping. As a result of her beating, Ana had a black eye and bruises. Defendant kept asking her how she was going to explain the injuries to her family. When she said she was going to tell them the truth, he replied that she knew what would happen if she did so. Ana said defendant was always threatening to shoot her family, and she took his threat that day seriously.

Although she wanted to go home, defendant insisted on going to a toy store and buying Anas children some toys. He said that since he was not going to be seeing her any longer, he wanted to buy gifts for her children. Defendant spent approximately $800 to $900 at Toys-R-Us. Ana and defendant had lunch at a Mexican restaurant. They returned to Anas house and defendant left after he helped wrap the gifts he had bought.

Defendant called Ana constantly the next day, apologizing for his conduct at the motel. He kept calling the following day as well, asking if he could come over to the house to see her. She told him no.

During the early morning hours of the next day, at approximately 1:30 on December 14, Ana was awakened by knocking on her front door. She tried to ignore it, but the knocking got louder and more persistent. She got up and asked who was there. When Ana got no response, she opened her inner door and looked through the security door. She did not see anyone, but she saw defendants car parked across the street. Ana began to loudly call defendants name. A woman came out from behind some bushes, and screamed that she was sorry for what she had done. Ana recognized the woman as Kathy, a friend of Anas cousin. Kathy repeatedly told Ana to run for her life.

Ana opened the security door and began speaking to Kathy. Ana heard a loud thud from the back of the house. As she faced Kathy, defendant came up from behind Ana and struck her in the back of the head. Defendant struck her again and when she fell to the ground, he pulled her up by her hair. Kathy stood and watched for a moment before leaving the yard. Ana tried to scream for help, as her relatives lived across the street, but defendant clamped his hand over her mouth. He then struck Ana in the mouth with a closed fist, threw her inside the house, and closed the door.

As Ana lay on the floor, defendant continued to strike her in the face and head. He told her that she deserved the beating for refusing to be with him. Defendant produced a document and demanded that she sign off [on] the truck. He had purchased a truck, but had named Ana as the registered owner. He said that if she signed the paper, he would leave her alone. Ana was having trouble seeing due to the beating, and she asked defendant to find her a pen.

Ana walked into the kitchen and began looking for a pen. Defendant followed her and offered to give her the truck if she had sex with him one last time. She said no. While they argued, Anas two-year-old son entered the kitchen. Defendant picked up the boy, and told her to make some food. Defendant said that he was hungry, but he changed his mind and told Ana that he would rather have sex. As he held her son, defendant slid his hand down Anas sweatpants and inserted his finger into her vagina. She pushed his hand away. Defendant put Anas son on the floor, lifted Anas sweater, and began sucking her breast. When she told him not to do that in front of her son, defendant replied that he did not care, he still wanted to have sex.

Defendant picked up Anas son, got a baby bottle, went into a bedroom, and got into bed with the boy. Defendant called for Ana to join them. When she came into the bedroom, defendant asked her to take off her clothes. Ana said no. Defendant removed her sweater. They began arguing. Defendant told her that he had gotten a woman pregnant, and asked Ana why she could not be more like the other woman. At that point, the phone rang. Defendant grabbed the phone, looked at the caller identification information, and expressed displeasure that she had gotten Anas telephone number.

Defendant spoke to the person on the telephone for awhile and hung up. The phone rang again. Defendant answered, spoke, and hung up. This took place several times. Defendant told the caller not to have an abortion, saying he cared only for the baby. In between calls, defendant told Ana that he loved her, not the pregnant woman. Defendant eventually handed Ana the phone; it was Kathy.

After the last call, defendant told Ana that he still wanted sex. He told her to take off her pants, but she refused, saying she was not going to do anything in front of her son. Defendant picked Ana up, placed her on the bed, and removed her pants. After telling her that he was going to change, defendant spread Anas legs apart, and orally copulated her. Ana began crying and told defendant to stop. He got on top of her and inserted his penis into her vagina. He removed his penis, turned Ana onto her stomach, and put his penis into her vagina. He stopped, turned her over once again, and reinserted his penis. After he was finished, he lay next to Ana and her son and began talking. After 10 or 15 minutes, defendant got on top of Ana and penetrated her vagina with his penis.

After the last act of intercourse, defendant fell asleep. Ana remained awake. She could not leave, as defendant had placed his arm across the top of her body. After several hours, she got out of the bed. When defendant asked where she was going, she told him she needed to take something for her headache. As defendant remained on the bed with her son, she did not leave the house. Nor did she tell her mother about the incident when her mother called that morning, as defendant had warned Ana not to say anything.

When defendant fell asleep again, Ana took her son, went out the back door, got into her car, and drove away. She had difficulty seeing, and she could not find the police station. Eventually, a citizen led her to the station, and officers brought Ana and her son inside.

Gerardo Zatarian and Richard Moeun are security guards employed by the motel where Ana and defendant stayed on the night of December 10. On that date, they were patrolling when they saw a woman lying or crouching on the ground. She was crying and whimpering. A male Hispanic, identified by Zatarian as defendant, was attempting to pick the woman up, but she was refusing to stand. She finally stood up, and they started to walk away. The guards approached and asked if everything was all right. Defendant said everything was fine. Zatarian said that he wanted to hear from the woman. After prompting from defendant, she responded that she was fine. The guards saw the couple enter a motel room.

Daisy Granados was pregnant with defendants child.[3] On the night of December 13, she went to a nightclub with defendant. Prior to leaving the club, defendant told her that he wanted to go to Anas house. He wanted to tell Ana that Granados and he were seeing each other and that Granados was pregnant. Granados did not want to go to the house, and they struggled in the car, which led to her receiving a blow that resulted in a bloody nose. When they arrived at Anas house, Granados jumped out of the car and hid behind some bushes. She saw defendant walking toward a window of the house. Ana opened the door, and Granados stood up and told her that she was Kathy, the woman who was seeing defendant. Ana became angry, cursed, and started toward her. Granados told Ana to go into the house and ran away. Granados turned toward the house and saw Ana on the ground. She admitted that she dialed Anas telephone number later that night and spoke to defendant.

Dr. Matthew Bernstein, an ophthalmologist, treated Ana for pain in her eye, blurred vision, and light sensitivity. Ana suffered a blow-out fracture of her left eye as a result of the beating. Three months later, she still saw double and faced surgery. She had a 50/50 chance of restoring her ability to see single.

On December 14, Los Angeles Police Department Officers Lyman Doster and Mark Reed responded to Anas house to conduct a follow-up of her domestic violence report. They entered the residence through the open back door, and found defendant sleeping in the bedroom. The officers woke defendant and told him to place his hands on top of his head. Defendant attempted to leave the room, and became involved in a physical altercation with the officers. It took five officers to restrain defendant. Officers Doster and Reed suffered minor injuries.

Anas mother testified that defendant called her and asked her to tell Ana to drop the charges. He told her that she should advise Ana not to say anything against him.

II. The Defense Case

Defendant testified. He admitted that he entered Anas home on December 14 through a window. He said he had been staying at a motel for three weeks prior to the 14th, but that he was living at the house. He claimed that he had all [his] stuff, [his] personal belongings, [and his] clothes there. He was staying at the motel because there was an outstanding warrant for his arrest. However, he had lived at the house with Ana, her cousin, and Anas children since September. He paid the rent and bought all of the furniture for the house.

On the evening of December 10, Ana and he went to a club. She began drinking a lot. She accused him of having sexual relations with another woman. Ana became jealous and swept all of the glasses off of their table. She was yelling at him, saying it was time to leave. They were escorted out by security. Defendant got the car, drove to where Ana was waiting, and she got into the car. She did not tell anyone that she did not want to go with him.

As they drove, Ana began striking him. He did not hit her back. At some point, she fell asleep during the 20- to 30-minute drive to the motel. When they arrived at the motel, he woke her up. He opened the car door for her, and when she tried to get out of the car, she fell. She was drunk.

When they got to the room, Ana laid on the bed. Defendant wanted to have sex, so he kissed her. She responded by grabbing his testicles. In turn, he bit her breast. He claimed she dampened his ardor, and they fell asleep. He denied having sexual intercourse with Ana at any time that night.

The next morning, they had another fight in the motel room, during which Ana threatened to jump off the balcony. He prevented her from doing so. They decided to go to Toys-R-Us to buy toys and clothes as Christmas presents for Anas children. After shopping, they had lunch at a Mexican restaurant. They returned to the house and wrapped the presents. Defendant left the house, telling Ana that he was going to get his clothes from the motel. After leaving the house, he picked up Kathy and took her to the motel to engage in sex.

That night, Ana called defendant and asked why he had not come home. He told her that since they had fought the day before, he thought it best if they stayed apart. She got angry and hung up. The next day, she called him and said that she was sure he was sleeping with Kathy. Ana told him that if he wanted to sneak around to see other women, she did not want anything more to do with him.

On the night of December 13, he went to a club with Kathy. Afterwards, he went to Anas house. He knocked on the door. When she answered the door, he told her that he wanted her to sign the truck over to him. Ana got angry when she found out that a woman was in the car waiting for defendant, so she slammed the door. He got back into the house by climbing through a window. He did not have his keys to the house, as he had left them there a couple of days before.

When defendant got to the living room, the front door was open and Ana was lying on the ground outside. As a joke, he closed and locked the door. Ana got up, started kicking the door, and screamed at him to let her in. He was afraid that someone was going to call the police, so he opened the door. Defendant told her that all he wanted was the truck, and he accused her of being a gold digger. Anas son woke up and came into the room. Defendant did not want to argue in front of the boy, so he started playing with him, ignoring Ana. Kathy called the house a couple of times. Ana told defendant that Kathy was crazy and a drug user. Ana told him that she would give him a baby. They engaged in consensual sexual intercourse twice that night.

The next morning they laid on a blanket in the living room and watched television. He told her that he had to go back to the motel to get some of his clothes, and Ana insisted on going with him. She did not want him to meet Kathy. He reminded Ana that he needed the truck signed over to him, so they went into the kitchen to look for a pen. Ana opened a drawer, pulled out a knife, and tried to stab him. She said she wanted to kill him. He hit her three or four times, and she dropped the knife. When she said that she was going to leave to get the police, he went into the bedroom and fell asleep.

He woke up when the police arrived. They were hitting him, so he tried to run away. The officers told him that his girlfriend was accusing him of raping her. They continued to beat him.

He admitted calling Anas mother, but denied telling her that he wanted Ana to drop the charges. He told Anas mother to tell Ana to simply tell the truth.

On cross-examination, defendant admitted that he had obtained a California identification card in the name of Rudy Guzman. He began staying at the motel on November 11. Although he considered Anas home to be his, he did not sign the lease agreement for the house. He was afraid that if he had, the police would have found him. However, he paid $1,140 a month for the rent. He also bought the truck that was in Anas name. He paid $35,000 cash for the vehicle. Defendant earned his money by helping his brother in the sales of drugs, although defendant denied being a seller.

III. The Jury Instructions

After the court read the majority of the instructions to the jury, including the instruction on burglary, defendants trial counsel had the following discussion with the court:

[Counsel]: [I]n light of our obvious defense with respect to the burglary count, the jury ought to be instructed that the burglary must take place in the dwelling of another as opposed to a burglary one cannot legally burglarize his own home. And I dont think the instructions say of another. . . .

The Court: Lets go back to that instruction. The [CALJIC] instruction doesnt include the language of another. And it is an issue as to whether it was his or not, but there is evidence from his testimony that he maintains it was his residence.

[Counsel]: That is his entire defense. It was his own residence and therefore that the defense is that its legally impossible for one to burglarize ones own home.

The court asked the prosecutor if she wanted to be heard, and she declined. The court stated that it would tell the jury that it had omitted something from the burglary instruction and that it would include the phrase a residence of another in the revised instruction. Defense counsel thanked the court.

The court read the following revised instruction to the jury for the crime of burglary:

Defendant is accused in count VII of having committed the crime of burglary in violation of Penal Code section 459.

Every person who enters any building belonging to another with the specific intent to commit rape or assault by means likely to cause great bodily injury, is guilty of a violation of the crime of burglary in violation of Penal Code section 459, a felony.

It does not matter whether the intent with which the entry was made was thereafter carried out.

In order to prove this crime, each of the following elements must be proved:

1. A person entered a building belonging to another.

2. At the time of the entry, the person had the specific intent to commit the crime of rape and assault by means likely to produce great bodily injury.

During deliberations the jury requested the following: Definition of residence? (legal). [] What does belonging to another mean? (count 7).

After discussing the matter with counsel out of the presence of the jury, the court announced its tentative answer to the question. Neither party objected. After the jury returned to open court, it was told, in pertinent part, the following: First of all, let me explain to you that unless a word is specifically defined for you within these instructions, you are to give words their commonly understood English language meaning. . . . The definition of residence[] was requested. And again that is one of those words that the commonly understood English language definition of the term is what you are to apply. . . . And finally there was a question as to what does belong to another mean. In terms of that instruction, what it means is belonging to someone other than the defendant.

IV. The Sentence

We will set forth that portion of the sentence from which defendant appeals. For the violations of section 289, subdivision (a)(1), section 288a, subdivision (c)(2), and section 261, subdivision (a)(2) (counts 12, 13, 14, 15, and 16), the trial court imposed determinate terms of six years and consecutive terms of 15 years to life pursuant to section 667.61, finding that defendant had been convicted of a separate and distinct sexual act in each count. It sentenced defendant to a concurrent three-year term for the violation of section 273.5, subdivision (a) (count 3) and a concurrent six-month term for the violation of section 240 (count 2).

DISCUSSION

I. The Court Properly Instructed the Jury on the Burglary Count

Defendant testified that he lived at Anas residence on December 14. His counsel argued to the jury that defendant could not be guilty of burglary because, You cant burglarize your own home. He contends the trial court failed to properly instruct the jury on the law relevant to that defense. He argues that he presented substantial evidence showing that he had an unconditional possessory interest in Anas residence. Thus, the court had a duty to tell the jury that the prosecution had the burden of disproving defendants claimhe owned the residence that he allegedly burglarized and had an unlimited right of entry.

He asserts the jury exhibited its confusion by asking for clarification concerning the term belonging to another. Defendant argues that the courts answer was non-responsive and did not clear up the confusion. The jury was still not instructed that the People had [the] burden of proving that [he] did not have an unconditional possessory interest in the building. It was not told that it could not find [him] guilty of burglarizing his own residence. He claims that the error was prejudicial because the court lessened the prosecutions burden by failing to instruct on an element of the offense.[4]

The Attorney General argues the courts instruction to the jury that the defendant had to enter a residence belonging to another was sufficient. He contends that the terms have no technical meaning peculiar to the law, and no further definition was required. He also disagrees the prosecution had the burden of proving that defendant did not have an unconditional possessory interest in the residence.

We conclude that the courts response to the jury adequately addressed its question. The first question asked whether the term residence had a special legal meaning. The court answered no. The second question asked for the meaning of belonging to another. The court replied the language meant belonging to someone other than the defendant. We may presume that jurors understand the meaning of words in common usage. (People v. Wade (1995) 39 Cal.App.4th 1487, 1495.) There is nothing in the record to suggest the jury did not understand the courts response, and defendant fails to point to anything to the contrary. His defense was that he owned the residence. The instructions adequately explained to the jury that if it believed the home belonged to defendant, he could not be found guilty of burglary.

Defendant complains the jury was not specifically told that the prosecution had the burden to prove he did not have an unconditional possessory interest in Anas residence. He argues the fact that the residence belonged to someone other than defendant did not preclude him from having an unconditional possessory right to enter as well. The problem with defendants argument is that the evidence clearly established he had no such possessory right.

Defendant points to his testimony where he claimed to have paid the rent for the house and to have kept all of his personal property there. He contends this was enough to warrant the instruction he now seeks. However, he admitted that he moved out of the location over a month prior to the events of December 14. On December 14, defendant no longer had an unconditional possessory right to enter Anas house.

In People v. Sears (1965) 62 Cal.2d 737 (Sears) (overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17), the defendant had moved out of the family residence. Three weeks later, he entered the home through an unlocked door, and ultimately killed his stepdaughter. The court reversed the defendants conviction, but concluded that the evidence supported giving an instruction on felony murder based on burglary. The court stated: We reject defendants contention that the court should not have given the burglary instruction because defendant, as Claras husband, had a right to enter the family home. One who enters a room or building with the intent to commit a felony is guilty of burglary even though permission to enter has been extended to him personally or as a member of the public. [Citation.] The entry need not constitute a trespass. [Citations.] Moreover, since defendant had moved out of the family home three weeks prior to the crime, he could claim no right to enter the residence of another without permission. Even if we assume that defendant could properly enter the house for a lawful purpose [citation], such an entry still constitutes burglary if accomplished with the intent to commit a felonious assault within it. (Id. at p. 746.)

Defendant relies on the later case of People v. Gauze (1975) 15 Cal.3d 709, 711 (Gauze), to support his argument that a person cannot burglarize his own home. While defendant correctly states the holding in Gauze, he ignores the application of Sears. Gauze did not overrule Sears. The Gauze court explained the difference between the two cases. The defendant in Gauze, shared an apartment with two other persons and thus had the right to enter the premises at all times. (Ibid.) Whereas by moving out of the location, Sears had no right to enter his wifes house; that fact alone supported the [burglary] conviction. (Id. at p. 715.) Similarly, defendant moved out of Anas house and into a motel. In fact, he told Ana on the morning of December 14 that he needed to return to the motel to get some of his clothes. This testimony contradicted his earlier claim that all of his belongings remained at the house. Notwithstanding his belief that he still lived at the residence, his right to enter on December 14 was no longer unconditional. We conclude defendants claim of an unconditional possessory interest in Anas residence is not supported by the evidence, and an instruction on the subject was not warranted.[5]

II. Defendant Cannot Be Sentenced to Consecutive Terms Pursuant to

Section 667.61

Defendant contends the trial court erred by sentencing him to consecutive life terms pursuant to section 667.61, subdivision (b) on the sexual penetration by foreign object, oral copulation, and rape counts. He points to the language of former section 667.61, subdivision (g) which provided that the term in subdivision (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. He argues all of the sexual conduct that took place on December 14 was committed during a single occasion within the meaning of the statute. We agree.

In People v. Jones (2001) 25 Cal.4th 98 (Jones), the Supreme Court defined the words single occasion in section 667.61, subdivision (g). After reviewing the legislative history of section 667.61 and noting the harshness of the penalty dictated by that section, the court rejected the Attorney Generals argument that a crime took place on a single occasion if the defendant had a reasonable opportunity for reflection, the test used to determine whether a crime took place on a separate occasion under section 667.6 subdivision (d). The court held: Accordingly, we conclude that, for the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a single occasion if they were committed in close temporal and spatial proximity. (Id. at p. 107.)

The Attorney General argues that the trial court properly imposed consecutive sentences. However, he relies on cases that discuss section 667.6, subdivision (d) and examine whether the defendant had the opportunity to reflect before committing a subsequent offense. (E.g., People v. Garza (2003) 107 Cal.App.4th 1081; People v. Irvin (1996) 43 Cal.App.4th 1063; People v. Plaza (1995) 41 Cal.App.4th 377.) As we have discussed, Jones held that analysis did not apply to the language in section 667.61, subdivision (g).

We find the facts in our case strikingly similar to those in People v. Fuller (2006) 135 Cal.App.4th 1336 (Fuller). Fuller forced his victim to have intercourse with him twice in the bedroom, the two acts separated only by a brief change in position. (Id. at p. 1339.) After dressing, Fuller and the victim moved into the living room. He obtained her cellular telephone number and prepared to leave. Fuller changed his mind and forced the victim to have a third act of intercourse while in the living room. He was convicted of three counts of rape. The trial court found that the rapes were committed on two single occasions, relying on the fact that the rapes took place in different rooms of the apartment. It sentenced Fuller to two consecutive life terms pursuant to section 667.61.

The appellate court reversed, finding that the three rapes occurred on a single occasion as defined by Jones. The court noted: All three rapes occurred within about an hour while both Fuller and Ms. L. remained inside her apartment. The only movement was the short distance from her bedroom to the living room. Defendant kept Ms. L. under his continuous and uninterrupted control during the entire time of the incident. Thus, there was a close temporal and spatial proximity between the three offenses. (Fuller, supra, 135 Cal.App.4th at p. 1343.) The court concluded that Fuller could be sentenced to only one life term under section 667.61. (Ibid.) We find that Fuller applies to the instant case.

Defendant committed the act constituting penetration by a foreign object in the kitchen of Anas home. After a brief period, during which defendant carried her child into the bedroom, defendant placed Ana on the bed and removed her pants. He performed an act of oral copulation and got on top of her. Defendant penetrated Anas vagina with his penis three times. However, the three incidents were separated by momentary pauses while defendant repositioned her. After defendant finished assaulting Ana, he talked for 10 to 15 minutes, got on top of her once again, and inserted his penis into her vagina. All of the sex acts occurred in two rooms of the house and were completed in a short period of time. We conclude the acts took place during a single occasion, as they were committed in close temporal and spatial proximity. (Jones, supra, 25 Cal.4th at p. 107.) Thus, as to counts 12, 13, 14, 15, and 16, defendant may be sentenced to only one life term pursuant to section 667.61.[6] The remaining sentences on those counts must be determinate terms.[7]

III. On Remand the Trial Court Is Not Barred From Imposing Full Consecutive Sentences Pursuant to Section 667.6, Subdivision (d)

As we have discussed, on remand, the trial court will consider whether defendant may be sentenced to consecutive terms for counts 12, 13, 14, 15, or 16. If the court considers consecutive sentences pursuant to section 667.6, subdivision (d), the issue will be whether the crimes against the victim were committed on separate occasions. Defendant asserts that Blakely v. Washington (2004) 542 U.S. 296 (Blakely) requires that a jury and not the trial court . . . determine, beyond a reasonable doubt, whether the sexual acts were committed on separate occasions. He acknowledges People v. Groves (2003) 107 Cal.App.4th 1227 (Groves)rejected the same claim, but contends that in light of the subsequent decisions of Blakely and United States v. Booker (2005) 543 U.S. 220 (Booker), the issue should be reexamined.

Initially, we address the Attorney Generals claim that defendant forfeited his claim by failing to object under Blakely or Booker at the time of sentencing, even though both decisions were established law. However, as the Attorney General also points out, People v. Black (2005) 35 Cal.4th 1238 (Black), vacated in Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham), was the applicable law at the time of defendants sentencing hearing. Black held that Blakely was inapplicable to a courts decision to impose consecutive sentences. An objection on the ground that the jury was required to make the factual finding justifying the imposition of consecutive sentences would have been futile. We conclude defendant did not forfeit his Sixth Amendment claim.

The premise of the Supreme Court decision in Apprendi v. New Jersey (2000) 530 U.S. 466, as applied by Blakely and Cunningham, is that a trial court may not impose a sentence beyond the statutory maximum based on a fact, other than a prior conviction, not admitted by the defendant or found true by a jury beyond a reasonable doubt. (Id. at p. 490.)

In Groves, the trial court imposed consecutive sentences pursuant to section 667.6, subdivision (d). Groves challenged the sentence, claiming the court relied on facts not found true by a jury beyond a reasonable doubt, as required by Apprendi.The Grovescourt disagreed, finding that a decision concerning whether a crime occurred on a separate occasion is a sentencing consideration which does not require a jury finding. If the specific fact at issue is not an element of the crime but is a factor that comes into play only after the defendant had been found guilty of the charges beyond a reasonable doubt and no increase in sentence beyond the statutory maximum for the offense established by the jury is implicated, then the state may consider this factor based on a lesser standard of proof. (Groves, supra, 107 Cal.App.4th at p. 1231, fn. omitted.) The court concluded, the specific factwhether multiple offenses against the same victim occurred on separate occasions . . . is not an element of either oral copulation offense [with which Groves was charged]. (Ibid.) The court also found the imposition of a consecutive sentence does not increase the statutory maximum for the sentence that was established by the conviction. Thus, Apprendi does not apply. (Ibid.; accord People v. Diaz (2007) 150 Cal.App.4th 254, 268-269.)

We find the reasoning of Grovespersuasive. Although defendant asserts that Blakely and Booker have changed the legal landscape and implies that Groveshas been undermined, his claim is unpersuasive. He argues that a courts decision to sentence him to a full consecutive term under section 667.6 increases his sentence beyond the statutory maximum, as under section 1170.1 a consecutive term is limited to one-third of the middle term. However, our Supreme Court recently affirmed its holding in Black that Blakely does not apply to a trial courts decision to impose consecutive sentences. It concluded: The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts. (People v. Black (2007) ___ Cal.4th ___ [2007 WL 2050875].)

On remand, the trial court may impose consecutive sentences pursuant to section 667.6, subdivision (d) without violating defendants Sixth Amendment right to a jury trial.

IV. Defendant Was Properly Sentenced to Concurrent Terms for Misdemeanor

Assault and Inflicting Corporal Injury on a Cohabitant

Defendant was charged with assault by means likely to produce great bodily injury in count 2 and inflicting corporal injury on a former cohabitant in count 3. The charges were based on the events of December 10. The jury convicted defendant of assault, a lesser included offense to that charged in count 2, and count 3. The court sentenced defendant to two concurrent terms for those offenses. Defendant argues that simple assault is a lesser included offense of inflicting corporal injury on a cohabitant, and section 654 requires that the sentence on count 2 be stayed. We disagree.

The Attorney General correctly points out that the two charges were based on separate incidents of violence. Count 2 alleged defendant assaulted Ana while they were in the car driving to the motel. Count 3 charged that he inflicted injuries on Ana while in the motel room. He struck her in the face and bit her on the breast, leaving visible bruises and a wound. The prosecutor clearly set forth the separate basis for the charges during closing argument. As defendant was punished for two separate acts of violence, he was properly sentenced to two concurrent terms.

DISPOSITION

The matter is remanded to the trial court for resentencing. Although the court may impose only one life term pursuant to section 667.61, subdivision (b) for counts 12, 13, 14, 15, and 16, it is not barred by Apprendi from imposing consecutive determinate terms for the remainder of those offenses. The trial court is directed to send a corrected abstract

of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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

[2] Defendant was charged with rape for this incident, but was acquitted.

[3] Daisy Granados and Kathy are the same person.

[4] The Attorney General contends that defendant forfeited his claim by failing to raise a timely objection below. As defendant claims the court failed to instruct on an element of the offense in question, the alleged error affects defendants substantial rights and is reviewable notwithstanding his failure to object. ( 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.)

[5] Given our conclusion, we need not address defendants claim that his counsel was ineffective by failing to request a pinpoint instruction on the effect of an unconditional right to enter the residence.

[6] On counts 12 through 16, the trial court believing that section 667.61 was an enhancement to the charge alleged, imposed both a determinate and indeterminate term. We agree with the parties that if the court imposes a life sentence pursuant to section 667.61, it may not impose an additional determinate term for that offense, as the sentencing scheme set forth in section 667.61 is an alternative sentence, not an enhancement. (See People v. Acosta (2002) 29 Cal.4th 105, 118-128.)

[7] We express no view as to whether consecutive sentences are mandatory pursuant to section 667.6, subdivision (d).