P. v. Niebla

Filed 2/26/10 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Affirmed.

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

No appearance for Plaintiff and Respondent.

Jorge Niebla appeals from the sentence imposed after this court has twice remanded the matter to the trial court for resentencing.^[1] He was convicted by jury of kidnapping (count 1); two counts of inflicting corporal injury on a former cohabitant (counts 3 and 9); residential burglary (count 7); two counts of dissuading a witness by force or threat (counts 5 and 17); assault by means likely to produce great bodily injury (count 8); uttering a criminal threat (count 11); sexual penetration with a foreign object (count 12); forcible oral copulation (count 13); three counts of forcible rape (counts 14, 15, and 16); two counts of battery inflicting injury upon a peace officer (counts 19 and 20); and resisting an executive officer by use of force or violence (count 21). (Pen. Code,  207, subd. (a);^[2]273.5, subd. (a); 459; 136.1, subd. (c)(1); 245, subd. (a)(1); 422; 289, subd. (a)(1); 288a, subd. (c)(2); 261, subd. (a)(2); 243, subd. (c)(2); and 69.) He was also convicted of the misdemeanor offenses of assault (count 2), committing a lewd act in the presence of a minor (count 22), and child endangering (count 23). ( 240; 273g.; and 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).)^[3]

On August 20, 2007, this court filed an opinion in case No. 193048 wherein we affirmed the convictions and remanded the matter to the trial court for resentencing. We concluded as to counts 12, 13, 14, 15, and 16, appellant could be sentenced to only one life term pursuant to section 667.61 and that the remaining sentences on those counts had to be determinate terms. We expressed no view as to whether consecutive sentences were mandatory pursuant to section 667.6, subdivision (d).

At resentencing, the court sentenced appellant on counts 12 through 16 to the middle term of six years, fully consecutive pursuant to section 667.6, subdivision (d), plus on count 12 an additional term of 15 years to life pursuant to section 667.61, subdivision (b). The sentence on the remaining counts remained unchanged. Following resentencing, appellant appealed and, on December 23, 2008, this court filed its opinion in case No. B205002 wherein we found that the trial court erroneously imposed on count 12 a determinate sentence in addition to the indeterminate sentence required by section 667.61 and that the six-year determinate sentence had to be stricken. We also determined the trial court did not adequately explain its reasons for imposing mandatory full consecutive sentences on counts 12 through 16. We further directed the trial court to determine all actual days appellant spent in custody through the date of resentencing.

On June 24, 2009, at the resentencing hearing, the court indicated it had reviewed the reference from the Court of Appeal as well as the Peoples sentencing memorandum.^[4] Defense counsel argued appellant should be sentenced concurrently on counts 12 through 16 in that there had not been a sufficient opportunity for appellant to have reflected on his actions during the commission of the crimes.

Thereafter, the court sentenced appellant on count 12, sexual penetration with a foreign object, to life with a 15-year minimum pursuant to section 667.61. The determinate sentence of six years, previously imposed and stayed, was dismissed.

On count 13, forcible oral copulation, the court found it was a separate occasion with the same victim, that appellant had had a reasonable opportunity to reflect on his actions, and sentenced him pursuant to section 667.6, subdivision (d) to the midterm of six years to be served consecutively.

On count 14, forcible rape, the court found the crime to be a separate sexual act for which appellant had the opportunity to pause and reflect and sentenced appellant to the midterm of six years consecutive pursuant to section 667.6, subdivision (d). In response to the prosecutors request that the court state its reasons for finding count 14 to be a separate act, the court stated, Well, to be clear, it is the forcible rape is a as this did involve a separate act than oral copulation as was the forcible insertion of the penis into the vagina. It was so its one sexual assault, oral copulation, and then a distinct separate assault, the forcible rape. For that reason, I think the she was forced to go on her back to do this at the time and, therefore, the court does believe that represents a separate and distinct act. The prosecutor inquired, Is the court also making a finding if the court recalls the testimony, that in the forcible oral copulation, the [appellant] was positioned between the victims legs and when that sexual act was completed, the [appellant] then had an opportunity to change his position in committing the forcible rape reflected in count 14. And in order to commit the forcible rape, the [appellant] changed his position from being located between the victims legs with his head between [her] legs and changed his position so that he was on top of her when he inserted his penis into her vagina against her will as reflected in count 14. The court responded, Yes. And all the matters you stated the court does recall from the evidence. It does reflect a separate occasion, changing positions in that manner, doing a separate act. It did give the [appellant] an opportunity to reflect making imposition of consecutive sentence pursuant to 667.6(d) again. . . . Thats 12, 13, 14.

The court found with reference to count 15, that it was not a separate occasion. It was a change of position between acts of forcible rape, however not sufficient to constitute the separate occasion or an opportunity for the [appellant] to have a time to reflect and cease his conduct and sentenced appellant to a concurrent sentence of six years.

As to count 16, another act of forcible rape, the court stated the evidence at trial was such that this act occurred approximately 15 minutes after the prior act had ceased, and the time frame clearly indicates this is a separate occasion, that there was time for the [appellant] to reflect before engaging in renewed sexual assault. The court sentenced appellant to the midterm of six years consecutive.

The court recalculated appellants actual credits to 2,062 days to the date of sentencing, plus 309 days at 15 percent.

A new abstract of judgment was issued indicating a sentence of 39 years and 8 months plus an additional term of 15 years to life.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On November 6, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On November 23, 2009, his request for an extension of time to file a supplemental brief was granted to January 6, 2010. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

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] Pursuant to appellants request we have taken judicial notice of the opinions in case Nos. B193048 and B205002 and the reporters transcript of appellants trial.

^[2] All further statutory references are to the Penal Code.

^[3] In our previous opinion in case No. B193048, filed on August 20, 2007, we observed: All of [appellants] convictions resulted from incidents which took place during two days in December of 2003. The principal victim was [appellants] former girlfriend and cohabitant, Ana E. According to Ana, they lived together off and on for approximately three to four months.

In the factual background of our previous opinion and relevant to the instant appeal, we stated in pertinent part, During the early morning hours of . . . December 14 . . . [Appellant entered her residence through the] back of the house . . . came up from behind [her] and struck her in the back of the head. [Appellant] struck her again and when she fell to the ground, he pulled her up by her hair. . . . Ana tried to scream for help, as her relatives lived across the street, but [appellant] clamped his hand over her mouth. He then struck Ana in the mouth with a closed fist. . . . [] As Ana lay on the floor, [appellant] continued to strike her in the face and head. . . . While they argued, Anas two-year-old son entered the kitchen. [Appellant] picked up the boy, and told [Ana] to make some food. [Appellant] said that he was hungry, but he changed his mind and told Ana that he would rather have sex. As he held her son, [appellant] slid his hand down Anas sweatpants and inserted his finger into her vagina. She pushed his hand away. [Appellant] 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, [appellant] replied that he did not care, he still wanted to have sex. [] [Appellant] picked up Anas son, got a baby bottle, went into a bedroom, and got into bed with the boy. [Appellant] called for Ana to join them. When she came into the bedroom, [appellant] asked her to take off her clothes. Ana said no. [Appellant] removed her sweater. They began arguing. . . . At that point, the phone rang. . . . [] [Appellant] spoke to the person on the telephone for awhile and hung up. The phone rang again. [Appellant] answered, spoke, and hung up. This took place several times. . . . [] After the last call, [appellant] 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. [Appellant] picked Ana up, placed her on the bed, and removed her pants. After telling her that he was going to change, [appellant] spread Anas legs apart, and orally copulated her. Ana began crying and told [appellant] 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, [appellant] got on top of Ana and penetrated her vagina with his penis. [] After the last act of intercourse, [appellant] fell asleep. Ana remained awake. She could not leave, as [appellant] had placed his arm across the top of her body. [Sometime later] Ana took her son . . . and drove away.

^[4] The court made it clear it was resentencing only on counts 12 through 16 and that the sentence on other counts previously imposed was not going to be disturbed.