Filed 3/30/17 P. v. Nuno CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
GUILLERMO NUNO,
Defendant and Appellant.

A145334

(San Mateo County
Super. Ct. No. SC076036A)


Defendant Guillermo Nuno was found guilty of all the 15 felony charges that were submitted to the jury, specifically: three counts of inflicting corporal injury (Pen. Code, § 273.5, subd. (a)); two counts of making a criminal threat of great bodily injury (§ 422, subd. (a)); two counts of attempting to prevent the victim from testifying (§ 136.1, subd. (b)(1); four counts of false imprisonment (§§ 236, 237, subd. (a)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); one count of forcible oral copulation (§ 288a, subd. (C)(2)); and two counts of forcible rape (§ 261, subd. (a)(2)). The jury further found defendant guilty of the misdemeanor charge of maliciously damaging the victim’s property (§ 594, subd. (b)(2)(A)), and found true various penalty enhancement allegations. The court found true additional allegations that defendant had one adverse “juvenile adjudication” and two prior felony convictions, one of which qualified as a “strike” for purposes of the “Three Strikes” law. The trial court sentenced defendant to state prison for an aggregate term of 54 years and eight months.
Defendant contends the convictions for rape and oral copulation are not supported by substantial evidence; on the contrary, he insists the evidence demonstrated that as a matter of law he actually and reasonably believed the victim consented. Next, he contends that because the victim’s confinement was unbroken, he could be convicted of only one count of false imprisonment, not four. If these contentions are rejected, defendant argues the trial court erred in ordering the sentences for these offenses to be served consecutively. And he argues that a number of his sentences ought to be stayed by reason of section 654. Finally defendant argues, and the Attorney General agrees, that the abstract of judgment has a number of errors that require correction.
DISCUSSION
The Rape and Oral Copulation Are
Supported by Substantial Evidence
A brief explanation of context is required for resolution of defendant’s initial contention. All of the crimes were committed against a single victim, who was identified in the third amended information, the final accusatorial pleading, as “Evelyn Doe.” All of the crimes were alleged to have occurred between April 21 and April 25, 2012. The forcible oral copulation, and each of the two forcible rapes, was found by the jury to have occurred “on and between 04/22/2012 and 04/23/2012.” Defendant contends these convictions must be reversed because “the prosecution did not prove,” and “no rational trier of fact could have concluded that [he] did not actually and reasonably believe that Evelyn consented to the acts of sexual intercourse and oral sex.” The claim is without merit.
Defendant is continuing to rely on what is sometimes termed “the reasonable belief in consent defense,” and more commonly called the “Mayberry defense” after People v. Mayberry (1975) 15 Cal.3d 143. This defense differs from actual consent in that it “ ‘permits the jury to conclude that both the victim and the accused are telling the truth. The jury will first consider the victim’s state of mind and decide whether she consented to the alleged acts. If she did not consent, the jury will view the events from the defendant’s perspective to determine whether the manner in which the victim expressed her lack of consent was so equivocal as to cause the accused to assume that she consented where in fact she did not.’ ” (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1367.) “The reasonable belief defense derived from Mayberry is founded upon evidence showing the defendant acted under a mistake of fact sufficient to harmonize his assertion of consent with the victim’s story that consent was lacking.” (Id. at p. 1369.)
Here, the jury was instructed with CALCRIM Nos. 1000 and 1015 that defendant should be found not guilty if the jury concluded he “actually and reasonably believed that the [woman] consented to the [act].” Ordinarily, this involves a determination of credibility and a question of fact, namely, the defendant’s mental state. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 583; Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 466.) That determination is submitted to the jury only after the trial court has satisfied itself that the reasonable belief in consent defense is supported by “substantial evidence that the defendant honestly and reasonably, but mistakenly, believed that the victim consented . . . .” (People v. Williams (1992) 4 Cal.4th 354, 361.)
However, defendant deviates from the standard analysis by maintaining, in effect, that the victim’s story was so lacking in credibility that the issue should never have been submitted to the jury, because it could only be resolved in his favor. Given that defendant himself did not testify, the jury had only the victim’s testimony in court and evidence of statements she made to others. In contending that the victim’s evidence did not amount to substantial evidence, defendant is essentially asking this court to determine, as a matter of law, that her evidence lacked any credibility whatsoever, a determination, we observe, that a reviewing court will make only in the rarest of circumstances, such as physical impossibility, or palpable falsity so manifest that no thinking person would believe it. (E.g., People v. Hovarter (2008) 44 Cal.4th 983, 996; People v. Cudjo (1993) 6 Cal.4th 585, 608–609; People v. Weatherton (2015) 238 Cal.App.4th 676, 683, fn. 7.)
Even allowing for the understandable shadings and argumentative interpretations favoring her client, defendant’s appointed counsel has done a fairly accurate job in her opening brief of summarizing the evidence which, she asserts, supports the claim. With the addition of minor, nonsubstantive, editorial modifications, the reasoning runs as follows:
“At the time of the charged offenses, appellant and Evelyn had been in an intimate relationship for approximately four months and lived together. After appellant was arrested in February [2012], he became increasingly paranoid, suspicious of Evelyn, appeared to watch Evelyn when she came and went from work at the train station, questioned her whereabouts, and frequently appeared high. Nonetheless, appellant and Evelyn continued their sexual relationship, last having consensual sex on April 18, three days before the charged conduct commenced. When appellant returned home in the early morning hours of Saturday, April 21, his paranoia and suspicion turned violent. There is no dispute that appellant repeatedly expressed paranoid ideas and accusations towards Evelyn, threatened Evelyn and her family, and hit Evelyn multiple times throughout the day of April 21 and the morning of Sunday, April 22, using his hands, feet and the butt of a knife, causing serious injuries. However, the evidence also shows that at some point on Sunday or Monday, before the sex acts occurred, the physical abuse stopped and appellant was ‘nice.’ During the periods . . . when appellant was ‘nice,’ Evelyn indulged appellant’s request to engage in sexual relations. While the prosecution established that Evelyn’s consent was the product of duress, the prosecution failed to establish, beyond a reasonable doubt, that appellant did not actually and reasonably, albeit mistakenly, believe that Evelyn consented to both the oral sex and two incidents of vaginal intercourse.
“At trial, Evelyn testified that she did not want to have any form of sexual relations with appellant on or between April 22 and April 23, but agreed to do so because she was afraid that if she did not indulge appellant, he would hit her again. Evelyn testified that appellant asked for oral sex in a calm, non-threatening manner and made a request instead of a demand. After appellant made the request, Evelyn crawled on her knees toward appellant, placed his erect penis in her mouth and orally copulated him for 30 minutes, trying really hard to accomplish the act, and then got on top of him and had intercourse for 20 minutes. Evelyn did not cry or show any emotions. Evelyn cleaned herself up and went back to the mattress and laid next to appellant, who was sleeping. Evelyn explained that she engaged in these acts because she feared appellant would harm her if she did not. Appellant woke up and, when he woke, Evelyn walked around the house picking up her son’s sweaters and then returned to the mattress and laid next to appellant. Appellant held Evelyn in a side hug on the mattress, the two watched television together for three hours while appellant had his arm around Evelyn and then appellant fell asleep. Appellant was calm, did not hit Evelyn or threaten her. When appellant woke up later, he pulled Evelyn toward him and inserted his penis inside her vagina and the two had intercourse for 30 minutes. Evelyn did nothing to indicate that she was not enjoying the intercourse. After completing the sex act, she told appellant they would ‘try again later.’ Evelyn cleaned herself up and returned to the mattress and laid next to appellant. After the sexual acts, appellant was calmer and even left the house a few times.
“Evelyn’s testimony at trial was mainly consistent with statements she ultimately gave to the forensic nurse and police. Evelyn told police that she had sex with appellant and acted like she wanted to have sexual relations with appellant because she felt that if she did not give appellant what he asked for, he would hit her. Evelyn explained to police that she acted like she wanted to engage in the acts with appellant and pretended like she was enjoying it, thinking that if she pleasured him, he would not hit her again. Evelyn told police that the beatings stopped on Sunday morning and after the physical abuse stopped, appellant asked Evelyn for a ‘BJ’ in a non-threatening manner. Evelyn reported that there was no further physical abuse after Sunday morning. After the sex acts, appellant was much calmer, nice and left the house several times. Evelyn told nurse Galanter that she voluntarily had sexual relations with appellant because she was afraid of him since he [beat] her before, and when they had sex, appellant was ‘actually nice,’ she agreed to have sex with him ‘while he was still nice to me,’ and was scared he would go ‘crazy again.’ Evelyn had no injuries to her vagina or mouth.
“The evidence affirmatively establishes that Evelyn never vocalized a lack of consent, never indicated through her actions that she did not want to engage in sexual acts with appellant, and never did anything that would make appellant think that when he requested sex and she complied, that she was anything but a willing participant. There was a break of time between the physical assault and the sexual acts, making it reasonable that Evelyn would consent to the acts. . . .
“Given the relationship between appellant and Evelyn, her intent that she seem willing to perform sex acts on appellant when he requested them in a non-threatening manner during a period of time when appellant was ‘being nice’ and calm, her failure to voice any dissent or show, through her actions, a lack of consent, and her affirmative attempts to convince appellant that she was consenting and enjoying the contact constitutes compelling evidence of appellant’s actual and reasonable, albeit mistaken, belief in consent. Evelyn wanted appellant to believe that she was consenting and did everything to ensure that he believed she was a willing and active participant. Under these circumstances, no rational trier of fact could have concluded, beyond a reasonable doubt, that appellant did not actually and reasonably believe that Evelyn consented to the acts of sexual intercourse and oral sex.”
In determining whether there is substantial evidence for the jury to conclude that—in the language of CALCRIM Nos. 1000 and 1015—the alleged rape and oral copulation were accomplished by “force, violence, duress, menace, or fear of immediate . . . bodily injury,” we are required to look to the totality of the circumstances as shown by the entirety of the record. (E.g., People v. Jennings (2010) 50 Cal.4th 616, 638–639; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) That perspective does not vindicate defendant’s conclusion, for the victim’s testimony on direct examination is vastly different from defendant’s version just quoted.
The established definition of “duress” is “ ‘a direct or implied threat of force, violence, danger, . . . or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ ” (People v. Leal (2004) 33 Cal.4th 999, 1004–1105.) According to the most favorable reading of the victim’s testimony (e.g., People v. Nelson (2011) 51 Cal.4th 198, 210; People v. Jennings, supra, 50 Cal.4th 616, 638–639), duress, in the form of “ ‘direct or implied threat of force, violence, danger, . . . or retribution’ ” permeated every aspect of what she endured starting on April 21.
As indicated from defendant’s version, he and the victim had been living together for some months. They had “been intimate” she testified, but she did not yet consider defendant to be her “boyfriend.” She testified that when she awoke during the early morning hours of Saturday, April 21, defendant was gone from their studio apartment. She could not find her cell phone (there was no land line), or her glasses. Without her glasses, the victim’s vision is “very blurry,” and she feels “lost” without them.
When defendant returned at about 7:30 a.m., he ran into the apartment and was “really nervous.” He closed the window curtains, so the neighbors could not see into the apartment. Defendant grabbed the victim by her arm, “picked me up from the couch,” and took her to the hall outside the bathroom. With the victim’s back to the wall, defendant ripped off her clothing, and “brought me to the kitchen.” Ignoring her questions if he took her glasses and cell phone, defendant began hitting her head [and face] with both of his fists. According to the victim, the hitting went on for “probably, between two to three hours.” During this time she was standing, naked, while between blows defendant demanded to know “Where was I last night? Where have I gone to?” and “Who did you go see?” Defendant was very angry, but “he wasn’t screaming, because he knew that someone can hear us.” The victim was “really scared. . . . [B]ecause I felt like . . . I had done something wrong . . . to make him mad that way. And he was going to do something very serious.”
The victim further testified that defendant then “threw me down” on a sofa bed mattress on the floor, with her back against the wall. Defendant dropped to his knees and resumed hitting her head. Now he was demanding “Tell me . . . the truth; who do you work for? What are their names?” This went on for about an hour. Defendant went to the kitchen for a few minutes. When he returned, “It was just the same questions, over and over. Every time he asked me; and then he will hit me; ask me; and then he will hit me again; and I didn’t know what to answer anymore.”
The beating stopped for about an hour while defendant inspected the contents of the victim’s purse. He then “grabbed me from the mattress and brought me to the kitchen [and] threw me on the floor,” where, despite her sobbing, the victim endured another hour of interrogation and physical abuse. That ended, but only temporarily, when defendant grabbed her hair, and “brought me by my hair [back] to the mattress.” By the victim’s estimation, the “time was already mid-afternoon.” Still naked, she had had no food or water. Defendant ignored all her pleas to stop. The victim was desperate to use the bathroom. It was in the kitchen that defendant “threatened to kill me, my family, my son,[ ] if I didn’t tell him who I worked for.”
Defendant and the victim stayed on the mattress for “probably, [a] couple hours.” During this period defendant hit her four times. Then, as the victim testified, “he just sat there for awhile . . . he took a break of hitting me. And he just sat there without saying anything.” But if she shifted position, he hit her. Eventually, defendant got to his feet and went into the kitchen, where he remained for approximately 30 minutes. When he came back, the victim asked if she could use the bathroom. Defendant’s response: “He said, Okay. And he grabbed me by my arm. So he took me to the bathroom. [¶] . . . [¶] And he sat there watching me while I went to the bathroom.” The victim asked for some privacy but defendant “just stayed there looking at me until I was done.”
They then returned to the mattress. When the victim sat down, defendant “hit me twice again.” As evening came on, defendant turned off the lights in the studio. Saturday ended with her still on the mattress with her back against the wall, having eaten nothing all day. The victim was allowed to have some water. She spent all of Saturday night/Sunday morning in the position. She never slept.
Defendant left the apartment “probably around 3:00, 4:00 in the morning.” “He just told me . . . . [H]e was going to come back in a few. And not to do anything stupid; not to try to run or call anyone.” The victim made no attempt to leave because she did not have her glasses, and because “I was scared that he was outside waiting to see if I did anything.” Defendant returned after “a couple of hours,” and immediately resumed the hitting and angry questioning.
Next, defendant marched the victim by her hair into the kitchen again, threw her to the floor, kicked her, and “then he got down and hit me on my face” for about 20 minutes. She was allowed, after asking, to go to the bathroom, but again she was accompanied by defendant. As soon as she sat down on the mattress, the hitting started again. Between blows, “he would just sit there and look at me, like he was enjoying the pain that I was going through.” Defendant would now smile at the victim before hitting her.
After a half-hour pause, defendant returned from the kitchen with a hunting knife in his hand. The victim testified that when she saw the knife pointed at her, she thought “he was going to kill me.” He grabbed her hair again, pulled her to her feet, and began hitting her with the butt of the knife. As defendant was hitting the victim, he told her “he was going to kill me if I didn’t tell him the truth.” The victim was crying and terrified because “I knew he was going to kill . . . me.”
The victim further testified that after she implored defendant to stop the beating, defendant “sat me on the . . . mattress; went to the kitchen. He came back and grabbed me by my hair,” and pulled her to her feet. He grabbed her throat, choked her, and then threw her to the floor, causing her head to strike the floor. Again, “really angry,” defendant told the victim he was going to kill her. He said this while kneeling next to her. They were face to face. “His right hand was on my neck. And the other one was on my hair against the floor.” The victim was having trouble breathing, and couldn’t speak to communicate her distress.
When defendant went into the kitchen, the victim went back to the mattress, and discovered “I was bleeding a lot.” When this was seen by defendant, he told her “clean yourself up; you’ll survive.” He went with her to the bathroom, where she unsuccessfully tried to stanch the bleeding. The victim returned to the mattress, where she sat for about 20 minutes while defendant was in the kitchen. When he emerged, he told her “don’t ever bring your son around me,” following which he ripped up a photograph of the victim’s son and “slashed . . . apart” several of the son’s sweaters. Defendant then began kicking a wall.
The victim continued her direct examination by recounting that defendant took the front cover off a wall heater; dragged the victim by her arm over to the heater; put her down next to it; and ordered the victim “to tell them to come out and save me.” Shaking and crying, she complied, believing “to him, someone was on the other side listening.” Defendant then “brought me to the kitchen.” This was approximately half an hour after defendant had ripped up her son’s picture.
In the kitchen, defendant pushed her to the floor. When the victim “sat up and I was going to get up,” defendant kicked her in her face. He inquired “Why was I protecting them? Why was I so stupid to go through that whole thing to protect them? Why was I trying to put my son in danger to protect them?” Defendant picked her up by her hair, “brought me back to the mattress,” where “he told me he wanted to have sex.” He lay down next to her, pulled out his penis and “told me” “to give him oral sex.” “And then he told me to be very careful, otherwise, he was going to break my mouth.” Against her will, the victim did as he demanded. “I gave him sex after,” as defendant directed: “He . . . told me to . . . get on top.” It was about 4:00 p.m.
Thereafter, defendant returned the victim’s glasses (see fn. 2, ante), and they watched television until 9:30 p.m. The victim asked no questions or did anything that might irritate defendant. When the TV and the lights were turned off, they lay next to each other. Defendant kept his arm across the victim’s chest. Neither fell asleep. Around midnight, and without asking, defendant “turned me to my side and he penetrated me.” During the act she tried to pull away, “but he just kept going.” Eventually, defendant fell asleep.
Thus, the victim testified to two instances of “vaginal sex,” and one of oral copulation.
The foregoing is taken from the victim’s direct examination. It shows the involuntary commission of oral copulation and rape, as charged. The background is heavy with duress, if not outright coercion. Violence was a recurring feature of the victim’s ordeal. The threat of violence was both overt and implicit. Retribution was just one of defendant’s menaces. Her version is not preposterous on its face. The acts described are not impossible according to the laws of science. Thus, we cannot conclude as a matter of law that the victim’s testimony is utterly unworthy of credibility. “[T]he direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent ‘without resorting to inferences or deductions.’ [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury’s resolution . . . .” (People v. Cudjo, supra, 6 Cal.4th 585, 608–609.) Put another way: “ ‘ “Testimony may be rejected only when it is inherently improbable or incredible, i.e., ‘ “unbelievable per se,” ’ physically impossible or ‘ “wholly unacceptable to reasonable minds.” ’ ” ’ ” (People v. Weatherton, supra, 238 Cal.App.4th 676, 683, fn. 7.) It was within the jury’s power to believe only this part of the victim’s testimony or extrajudicial statements, disregarding the parts on which defendant bases his Mayberry defense. (See, e.g.,
People v. Crooker (1956) 47 Cal.2d 348, 355; People v. Lacefield (2007) 157 Cal.App.4th 249, 261.) We must assume the jury did so believe. (People v. Nelson, supra, 51 Cal.4th 198, 210; People v. Jennings, supra, 50 Cal.4th 616, 638–639.) That defeats defendant’s claim.
According to this analysis, the jury could conclude that the charged offenses were completely involuntary, without the possibility of consent, reasonably believed by defendant or otherwise. However, we choose not to end our analysis on this point.
In his version, defendant acknowledges he was not in the most levelheaded of mental states. But his self-diagnosed paranoia cannot be a factor in his favor. For 30 years it has been accepted that a defendant’s subjective mental state operates only within the range of what is objectively reasonable. The defendant “must honestly believe the victim consented and that belief must be reasonable under the circumstances. [Citation.] Reasonableness, of course, is an objective standard. . . . For this reason, a mistake of fact defense cannot be predicated on delusions . . . .” (People v. Castillo (1987) 193 Cal.App.3d 119, 124–125, italics added.)
Because we are required to view the evidence most favorably to the prosecution’s evidence and the jury’s verdict (People v. Jennings, supra, 50 Cal.4th 616, 638–639), we are compelled to conclude that the jury decided that, if defendant had a belief in the victim’s consent, such a belief was not objectively reasonable. Defendant portrays his voice may have been “calm” and “non-threatening,” but we must accept the jury crediting the victim’s testimony that it was angry. Regardless of its tone or volume, defendant’s voice was conveying orders and demanding obedience. The victim’s terror, and the reason for it, cannot be erased from consideration. She was trapped, a prisoner in her own home, without means of escape. She was vulnerable. She was bleeding from repeated beatings, and had been subjected to demeaning humiliations. Her immediate fear for her own safety was a paralyzing reality. Her vicarious fear for her son and family was only slightly less stifling. As all of these emotions had been created by defendant, the jury could conclude that, as an objectively reasonable person, he could not claim to be unaware of them. As the person who had physically and mentally terrorized the victim for a considerable period of hours, defendant would be held to appreciate their consequences. So when that person indicates a desire for sexual gratification, the captive can hardly be treated as a free agent. This conclusion is underscored when it is recalled that the jury could legitimately rely on only the evidence just recited, thus removing the equivocal features emphasized by defendant on appeal. In other words, the credibility of defendant’s affirmative defense was left to the jury, which clearly decided it was not.
For each of the above reasons, defendant’s rape and oral copulation convictions will not be overturned.
The False Imprisonment Convictions
and Punishment
“False imprisonment is the unlawful violation of the personal liberty of another.” (§ 236.) “If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment . . . .” (§ 237, subd. (a).) “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a) [section 654].) Defendant presents two contentions based on the correlated concept of his convictions and punishment on the four counts of false imprisonment charged and sustained by the jury.
First, he argues: “Appellant was convicted in Counts 4, 8, 10 and 13 of falsely imprisoning Evelyn in violation of Penal Code sections 236/237 for ‘imprisoning’ her in their apartment from April 21 until April 25, 2012, one count for ‘each day he’s holding her.’ However, because false imprisonment, like kidnapping, is a continuing offense, which is ongoing until the victim is released or freed, appellant could . . . lawfully be convicted of [only] a single count of false imprisonment for the continuous confinement spanning five days.” This issue, as defendant sees it, is “whether a defendant may suffer multiple convictions based on . . . a single imprisonment spanning several days, presents a pure question of law and thus, this Court should review the issue de novo.” Defendant believes that if we do so, we will agree that “three of [his] convictions for false imprisonment must be reversed.”
Second, in case his first argument fails, defendant argues that “[b]ecause [he] harbored a single intent and objective when he committed the charged false imprisonment[s], which spanned several days, he should have . . . been sentenced for [only] one false imprisonment and the remainder of the sentences should have been stayed pursuant to Penal Code section 654.” Defendant states all of the offenses “on each day were part of an indivisible course of conduct with a single intent and objective,” “namely, to force Evelyn to tell him who she ‘really worked for’ through the use of force, threats and confinement.”
With respect to the first issue, the Attorney General states she “agrees that false imprisonment constitutes a continuing offense and that a single incident may lead to only one conviction. Where, however, the question is a factual one regarding whether a crime involving false imprisonment constitutes a single incident or multiple incidents,” the issue is one of substantial evidence. This merges with the gist of the Attorney General’s response to defendant’s second argument: because “[t]he trial court imposed a four year prison term for each count of false imprisonment, each count to run concurrent to a
non-false imprisonment count,” it—the trial court—necessarily if impliedly concluded that each count was accompanied by a separate criminal intent or objective; these are factual determinations upheld if supported by substantial evidence as within a sentencing court’s discretion. And with respect to the false imprisonment counts, the Attorney General maintains that section 654 does not preclude separate punishment if there is substantial evidence that the defendant had “time to reflect” by leaving the apartment before returning to continue the false imprisonment of the victim.
We conclude the Attorney General has the better side of the argument.
As for defendant’s claim that the issue is a pure question of law, that is generally correct only in situations where the evidence generates no factual dispute. (See People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Perez (1979) 23 Cal.3d 545, 552 & fn. 5.) As shown by defendant’s initial contention, that is certainly not the case here.
Next, there are at least two difficulties with defendant’s characterization of his “single intent and objective.” First, it is not just any intent or objective that is covered by section 654, but only a criminal intent or criminal objective. (See In re Hayes (1969) 70 Cal.2d 604, 609–610.) Defendant’s clear purpose and goal—getting the victim to divulge the identities of the persons she was keeping informed about defendant—was the product of a delusion, and not itself criminal (as evidenced by the absence of a charge concerning that intent in the third amended information). Second, defendant is confusing means and ends. If, as he now implicitly maintains, the unifying motive was the victim’s confinement, false imprisonment cannot at the same time be downgraded to a mere means, as defendant appears to treat it (“through the use of force, threats and confinement”).
And the Attorney General is clearly correct as how we are to consider the trial court’s sentencing decisions: “A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.) This is how we shall review the trial court’s implied determinations that defendant entertained discrete criminal objectives. Moreover, because section 654 does not prohibit multiple convictions, but only multiple punishments (e.g., People v. Infante (2014) 58 Cal.4th 688, 695; People v. Thompson (1990) 50 Cal.3d 134, 173), it follows that if multiple punishments are proper, so too are the underlying multiple convictions.
Several years ago our Supreme Court held: “By its plain language section 654 does not bar multiple punishment for multiple violations of the same criminal statute.” (People v. Correa (2012) 54 Cal.4th 331, 334.) Since then the court has reiterated:
“ ‘It is [the] defendant’s intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.’ [Citation.] ‘ “The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced.” ’ [Citation.]” (People v. Capistrano (2014) 59 Cal.4th 830, 886.) However, the court added a caution: “The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective.” (Id. at p. 887.)
Defendant states he “harbored a single intent and objective when he committed the charged false imprisonment[s], which spanned several days,” “because the offenses on each day were part of an indivisible course of conduct with a single intent and objective,” “namely, to force Evelyn to tell him who she ‘really worked for’ through the use of force, threats and confinement.”
The “ ‘temporal proximity’ ” factor has been construed to allow for multiple convictions and multiple punishments if the evidence shows the defendant had the opportunity to “reflect and consider his next action.” (People v. Trotter (1992) 7 Cal.App.4th 363, 368.) The most cited formulation is this: “Under section 654,
‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935, italics added; accord, e.g., People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113; People v. Clair (2011) 197 Cal.App.4th 949, 960; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This court has accepted this reasoning. (People v. Deegan (2016) 247 Cal.App.4th 532, 542.)
The Attorney General has done a thorough job in setting out the time frames of defendant’s forced movements of the victim “from room to room numerous times” the time he spent apart from the victim inside her apartment, and, most significantly, the times he left the apartment. This time by himself provided defendant “more than sufficient time to reflect on his actions.” Thus, we clearly have a number of discrete criminal acts which the trial court could conclude were not organized pursuant a larger criminal objective, nor were those acts committed to effectuate such a plan. So conceived, it is readily apparent why the trial court implicitly viewed every false imprisonment count as standing alone, each sufficient to support an independent sentence. Substantial evidence supports those determinations. (People v. Brents, supra, 53 Cal.4th 599, 618.) “[T]he purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.” (People v. Correa, supra, 54 Cal.4th 331, 341, and authorities cited.) Even if, as defendant believes, we were to examine the issue de novo, we could not conclude the aggregate sentence violates the statutory purpose.
Other Sentencing Issues
Both defendant and the Attorney General raise a number of other issues relating to defendant’s aggregate sentence.
In addition to its claimed insufficiency, defendant advances another argument directed against the sentence imposed on count 11, which the trial court designated as the 12-year principal term for purposes of sentencing. Similar length terms for the oral copulation charge (count 9) and the other rape charge (count 12) were ordered to be served consecutively in accordance with section 667.6, subdivision (d). Subdivision (a) of that statute specifies a mandatory five-year enhancement for “[a]ny person who is convicted of an offense specified in subdivision (e),” which includes rape and oral copulation. Subdivision (d) provides in pertinent part: “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) [which includes rape and oral copulation] if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”
Consecutive sentences were imposed for counts 9 and 12 because the trial court found “the sex acts engaged in were not on the same occasion, because a sleep break in time occurred.” Accepting the chronology of the victim’s narrative described above, defendant contends (quoting the caption in his opening brief) that his “sentence on count 11 should be reversed because the trial court erroneously found that the rape in count
11 was committed on a separate occasion from the oral copulation in count 9 and thus, that a mandatory full term consecutive sentence was required.” In other words, defendant accepts there was a period of time between the commission of the first rape and oral copulation described by the victim, and the second rape, during which the victim testified they watched TV and then lay next to each other. Thus, he accepts that two of the sentences could be made consecutive, but not all three.
Defendant understandably relies on People v. Pena (1992) 7 Cal.App.4th 1294. As described in the opinion, the victim “was unlocking the door of her home when [Pena] approached her from behind” “and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, [Pena] got off of her, twisted her by the legs violently, and orally copulated her.” (Id. at p. 1299.) The Court of Appeal noted that review is highly deferential: “once the trial judge resolves the issue of ‘separate occasions,’ an appellate court is ‘not at liberty to overturn the result unless no reasonable trier of fact could decide that there was a reasonable opportunity for reflection.’ ” (Id. at pp. 1314–1315.) Still, it held that consecutive sentences were not supported because “no reasonable trier of fact could find a ‘reasonable opportunity’ to reflect between the two crimes under these circumstances.” (Id. at p. 1315.) The Pena court did suggest “any appreciable interval” would satisfy the statute, and that five minutes might suffice. (Id. at pp. 1315–316.)
Since Pena was decided, reviewing courts are reluctant to think only of time. “As the statute tells us, the duration of time between the acts and the retention of the opportunity to attack again are not themselves determinative.” (People v. Plaza (1995) 41 Cal.App.4th 377, 385.) According to our Supreme Court, a finding of “separate occasions” under section 667.6, “does not require a change in location or an obvious break in the perpetrator’s behavior.” (People v. Jones (2001) 25 Cal.4th 98, 104.) It has also been noted, contrary to Pena, that where the defendant changed position vis-à-vis the victim, the sentencing court can determine that he had a “reasonable opportunity to reflect.” (People v. McPherson (2001) 86 Cal.App.4th 527, 531.) Violence and threats can be seen as furnishing that opportunity. (See People v. Garza (2003) 107 Cal.App.4th 1081, 1092–1093.)
We are not inclined to accept the trial court’s statement in every literal particular. Defendant rightly points to the illogic of approaching the trial court’s statement as finding that “a sleep break in time occurred” between each of the three sex offenses. It is more sensible to take the trial court’s words as concluding that the language of section 667.6, subdivision (d) was met, that defendant had “a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior.” This is a straightforward application of the appellate principle that we review the trial court’s ruling, not the stated reasoning. (E.g., People v. Brown (2004) 33 Cal.4th 892, 901; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4.)
The victim testified that after orally copulating defendant’s penis for “as long as 30 minutes,” his penis was still “hard.” From this a reasonable trier of fact could conclude that defendant had failed to achieve sexual fulfillment, and that he then decided to seek it in a different manner, hence his command to “get on top” of him. This was an ample basis for a reasonable trier of fact to conclude that defendant had “a reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior,” thus warranting imposition of a consecutive sentence on count 11.
Defendant and the Attorney General have each identified a number of errors in the abstract of judgment.
They agree that the sentence imposed on count 2 was stayed pursuant to section 654.
They agree that the trial court imposed a $300 restitution fine pursuant to section 1202.4, but the abstract fixes the amount at $3,000.
They agree that the abstract erroneously specifies $300 as a probation revocation fine pursuant to section 1202.44 when no such fine was imposed.
They agree that the abstract erroneously shows “$300.00 per PC 1202.44 is now due,” when in fact the court ordered it “stayed, pending successful completion of parole.”
At this point we choose to quote the Attorney General’s brief detailing other matters that require correction:
“Each sentence imposed by the trial court was doubled based on appellant’s prior serious felony conviction under section 1170.12, subdivision (c)(1). This doubling is not reflected for any count in the ‘principal or consecutive time imposed’ section of the abstract of judgment with the exception of count 14. The abstract must be amended accordingly.
“The abstract of judgment does not note that count 2, making a criminal threat,
is a serious felony. (§§ 422, 1192.7, subd. (c)(38); see People v. Moore (2004) 118 Cal.App.4th 74.) It should be amended accordingly.
“The trial court ordered count 4 to run concurrent with count 3. The abstract of judgment does not note that the sentence is to run concurrently, and should be amended accordingly.
“The trial court sentenced appellant in count 5 to a consecutive term of two years and eight months (one-third of the four-year middle term, doubled), and struck punishment for the enhancement under section 12022, subdivision (b). The abstract of judgment lists the term as one year and nine months (neither the total term nor one-third of the middle term), and fails to note that the punishment for the enhancement was stricken. These errors must be corrected.
“The trial court ordered count 6 to run concurrent with count 5. The abstract of judgment does not note that the sentence is to run concurrently, and should be amended accordingly.
“The trial court sentenced appellant in count 9 to 12 years imposed consecutively (the middle term of six years, doubled). The abstract of judgment lists the term as the low term of six years, and should be amended to note that the term is the middle term and has been doubled to 12 years as discussed above. The abstract also lists the conviction in count 9 as section ‘288(a)(c)(2),’[ ] although appellant was convicted under section 288a, subdivision (c)(2). This error must also be corrected.
“The trial court sentenced appellant in counts 11 and 12 to 12 years each, imposed consecutively (the middle term of six years, doubled). The abstract lists the sentence for each count as 6 years, which does not reflect the doubled term of 12 years, as discussed above. These errors must be corrected.
“The trial court sentenced appellant in count 13 to four years imposed concurrently to count 14 (the middle term of two years, doubled). The abstract of judgment lists the term as two years and described it as the low term, and should be amended to note that the term is the middle term, doubled as described above.
“The trial court sentenced appellant in count 15 to a consecutive term of two years and eight months (one-third of the four-year middle term, doubled), and stayed punishment for the great bodily injury enhancement. The abstract of judgment lists the term as one year and nine months (neither the total term nor one-third of the middle term), and fails to note that the punishment for the enhancement was stayed. These errors must be corrected.
“The trial court also imposed a five-year consecutive term for appellant’s prior serious felony conviction under section 667, subdivision (a). That term does not appear on the abstract of judgment, as it must.
“The total term imposed as listed on the abstract of judgment must also be amended. The trial court agreed with the prosecutor that the total term was 54 years and 8 months. The abstract of judgment lists the total term as 53 years and 8 months. Both are incorrect. The total of all the consecutive terms imposed (4 years for count 3; 2 years and 8 months for count 5; 12 years for count 9; 12 years for count 11; 12 years for count 12; 4 years for count 14; 2 years and 8 months for count 15) plus the 5-year term for appellant’s prior serious felony conviction is 54 years and 4 months. The abstract of judgment should be amended accordingly.” Defendant agrees.
DISPOSITION
The cause is remanded to the trial court for the sole purpose of preparing an amended abstract of judgment in conformity with the views expressed herein. The clerk of the trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
 

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Richman, J.


We concur:


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Kline, P.J.


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Stewart, J.

























A145334; P. v. Nuno