P. v. Plummer

Filed 8/5/09 P. v. Plummer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Barbara R. Johnson, Judge. Affirmed.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Troy Plummer appeals from the judgment entered following his conviction by jury of one count of first degree burglary (count 1; Pen. Code, 459),[1] two counts of first degree residential robbery (counts 2 & 3; 211), one count of false imprisonment by violence (count 4; 236), one count of forcible oral copulation (count 5; 288a, subd. (c)(2)), three counts of forcible sodomy (counts 6, 8, & 10; 286, subd. (c)(2)), and three counts of forcible rape (counts 7, 9, & 11; 261, subd. (a)(2)). The jury also found true the allegations that defendant personally used a deadly and dangerous weapon and committed the sex offenses during the commission of a burglary. ( 12022.3, subd. (a); 667.61, subds. (a), (b), (d), & (e).) After a court trial, defendant was found to have suffered five prior serious felony convictions. ( 667, subd. (a); 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) Pursuant to section 667.6, subdivision (d), the trial court imposed full consecutive sentences for each of the sex offenses. Defendant was sentenced to 225 years to life plus a determinate term of 53 years in state prison.

His sole contention is that the trial court erred by imposing consecutive sentences because the evidence at trial failed to support its finding that the sex offenses were committed on separate occasions within the meaning of section 667.6, subdivision (d). Discerning no error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I.                   The Sexual Assault

As defendant appeals only his sentence, we set forth an abbreviated factual summary, which focuses on the evidence underlying the sexual assaults.

On October 14, 2005, at around 11:15 p.m., Sarah G. arrived at her house on North Fairfax in the City of Los Angeles. While sitting on the couch in the living room, she heard the back door open and saw defendant walking towards her. Defendant held a knife to her throat, grabbed her hair, pulled her head back, and said that this was a robbery and she would not get hurt if she did as she was told.

Defendant forced Sarah G. out of the living room into the hallway and made her look into every room to check if anyone else was home. Upon entering a bedroom, defendant discovered Nathan Kim, Sarah Gs roommate. Defendant told Kim that this was a robbery, took $200 from him, and told him to get underneath his bed. After hearing defendant and Sarah G. leave his bedroom, Kim reached out to grab his cell phone which was located on top of his bed and called 911.

Defendant then led Sarah G. back down the hallway, telling her he wanted more money. They went into her bedroom where she gave him $50.00. Next, defendant forced Sarah G. into the computer room where he pushed her backwards towards a desk, causing her to fall to the ground. As Sarah G. was on her knees trying to get up, she saw defendants erect penis in front of her face. He pointed his knife towards her and said, You know what to do. She told him, No. I dont want to do this. Dont make me do this. She licked his penis for about 10 seconds.

He then forced her over to the bed in the computer room and made her take her pants and underwear down to her ankles. After telling her to get on her knees against the side of the bed, he positioned himself behind her and placed his penis inside her anus. He remained there for about 30 seconds, causing Sarah G. to make noise from the pain. The windows were open above the bed and he told her that she needed to shut up and stay quiet. Still holding his knife to her throat, he removed his penis from her anus and inserted it into her vagina. While maintaining the same position behind her, he removed his penis once again and inserted it into her anus.

While grabbing her hair and holding the knife to her throat, he took her into Kims bedroom. Defendant forced Sarah G. to kneel at the foot of the bed and place her arms on the bed. He positioned himself behind her and placed his penis in her anus. Meanwhile, Kim was still underneath the bed, speaking quietly on his cell phone with the 911 operator.

Defendant then shoved Sarah G. on top of the bed so that she was positioned on her back. He got on top of her and placed his penis in her vagina while pointing his knife towards her. He pushed her onto a different portion of the bed and his penis separated from her vagina. He removed her pants and underwear, which had been down by her ankles, reinserted his penis into her vagina and continued to rape her, while constantly shifting the knife from one hand to the other.

In an attempt to identify any distinctive characteristics about her attacker, Sarah G. focused on the writing on defendants shirt. However, defendant noticed her observation and started to strangle her by squeezing his hands around her throat. He then bit both sides of Sarah Gs neck, pushed up her bra, licked her breasts, shoved his tongue down her throat, and licked her face. He took his knife and deliberately rode the blade along her stomach as if drawing something and made two marks on her stomach. He pulled Sarah G. up and told her to get underneath the bed with Kim. At trial, Sarah G. testified that [t]he whole thing was several minutes long.

After defendant left the bedroom, Sarah G. and Kim got up from under the bed, ran outside through the back door where they hid in their neighbors backyard, and waited for the arrival of the police.

II. The Trial Courts Sentence

Using count 5, the forcible oral copulation, as the base term, the trial court sentenced defendant to 75 years to life plus 29 years in state prison.[2] The court stayed defendants sentence for the burglary of 25 years to life pursuant to section 654. For the two robberies and the false imprisonment, the court sentenced defendant to 25 years to life on each count and chose to run those sentences concurrently with count 5.

Pursuant to section 667.6, subdivision (d), the trial court imposed full and separate consecutive sentences for counts 6 to 11. For each count, the trial court imposed a sentence of 25 years to life plus 4 years for the use of a deadly weapon pursuant to section 12022.3, subdivision (a). In total, defendant was sentenced to 225 years to life plus a determinate term of 53 years in state prison. Defendant filed a timely appeal.

DISCUSSION

Defendant contends that the trial court erred in finding that all seven sex offenses in counts 5 to 11 occurred on separate occasions because the evidence was insufficient to support its finding that he had a reasonable opportunity to reflect on his actions before committing each offense. Although defendant acknowledges that the trial court could reasonably have found that he had time to reflect after the offenses in the computer room were completed and before he resumed his assaultive conduct in Kims bedroom, he argues that [n]othing in the present record indicates that any appreciable interval of time occurred between any of the four acts in the computer room or the three acts in [Kims] bedroom and that his assaultive behavior in each of the rooms was continuous and uninterrupted. Therefore, he urges the court could have properly imposed only two consecutive sentences, one for the offenses that occurred in the computer room and one for those that took place in Kims bedroom. We disagree.

Section 667.6, subdivision (d) states that A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e)[3] if the crimes 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.

Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)

The trial court relied on the following facts to conclude that the sex offenses occurred on separate occasions, which were presented in the prosecutors probation and sentencing memorandum: Here, the defendant first started his assault as alleged in Count 5 by directing the victim to orally copulate him near a desk in the computer room. Counts 6 through 11 consist of the following activity: He then moved Sarah G. from one part of the computer room to another part. He told the victim to remove her pants and panties and then he anally penetrated her. Then he stopped and inserted his penis in her vagina. Then he stopped again and followed this by inserting his penis in her anus again. [] He made her get up and move to another room. He went with her. He moved her to the bed in Nathan Kims room. He inserted his penis in her anus and then moved her once again, this time to the top of the bed in that room. He then inserted his penis into her vagina when she was on the bed where he had made her go. She finally testified that he had moved her up to the far corner of the bed and when she was moved his penis came out of her vagina and that he reinserted it when he moved on top of her at the other end of the bed.

We conclude that this series of events afforded defendant ample opportunity to reflect upon his actions before resuming his sexual assaults. Each change in position and sexual activity reflects defendants choices and decision-making process whereby he directed the type of desired sexual activity at a time and place of his choosing. Moreover, it was not unreasonable for the trial court to take into consideration the defendants overall conduct and the duration of his attack in determining whether the crimes took place on separate occasions. Defendant did not complete the sex offenses in rapid succession nor did he commit them in haste. Rather, as Sarah G. testified at trial, the entire attack occurred over several minutes. Furthermore, that defendant armed himself before entering the home and insisted on inspecting every room in the house after he entered indicates a degree of mental preparation even before the sexual assaults occurred. This suggests that his entire course of assaultive conduct arose more from calculation than mere impulse.

We are not persuaded by defendants reliance on People v. Pena (1992) 7 Cal.App.4th 1294 (Pena). In Pena, the defendant raped the victim, got off her, twisted her by the legs, and orally copulated her. (Id. at p. 1299.) The Court of Appeal held that the trial court erred in imposing full consecutive sentences under section 667.6, subdivision (d). (Id. at p. 1316.) The court found that the defendant did not have a reasonable opportunity to reflect between the rape and oral copulation, even when defendant had to change positions, since the change was accomplished within a matter of seconds. (Ibid.) [N]othing in the record before this court indicates any appreciable interval between the rape and oral copulation. (Ibid.)

The facts in our case differ. Defendant did more than just flip the victim over. In between the sex offenses, defendant moved Sarah G. from one part of the room to another, told her to remove her clothing, told her to stay quiet, moved her to a separate room in a different part of the house, placed her on the bed, repositioned her on the bed, or removed her clothing. He inserted, withdrew, and reinserted his penis into different orifices of her body. For every sex offense and repositioning, he either pointed the knife at her or held it at her throat.

Defendant also relies on People v. Corona (1988) 206 Cal.App.3d 13 (Corona). In Corona, defendant sexually assaulted the victim in his car. He digitally penetrated her vagina, orally copulated her, and then raped her. He left the car for five minutes, returned, and raped her again. (Id. at p. 15.) The trial court imposed full consecutive sentences for each sexual offense pursuant to section 667.6, subdivision (d). (Id. at p. 16.) Defendant appealed and contended that the sentence was erroneous. (Ibid.) The Attorney General conceded that the consecutive sentences for two of the crimes committed before he left the car were improper. (Id. at pp. 16, 18.) Although the Corona court found that the defendant had a reasonable opportunity to reflect upon his actions during the five-minute break, it concurred with the Attorney Generals concession and held that the trial court erred in imposing full consecutive sentences under section 667.6, subdivision (d) for the digital penetration and oral copulation offenses because there was no evidence of any interval between these sex crimes affording a reasonable opportunity for reflection. (Id. at pp. 17-18.) The court went on to conclude that full consecutive sentences were properly imposed under section 667.6, subdivision (c). (Id. at p. 16.)

Defendants reliance on Corona is misplaced. Unlike the perpetrator in Corona, with the exception of the last two rapes, defendant had to make a conscious decision to remove his penis from the victim and to continue his attack by placing it into a different part of her body. With regard to the last two assaults, defendants penis came out of the victims vagina during his effort to reposition her on the bed. He also removed her clothing before reinserting his penis and completing the last act of rape.

Defendant contends that the quick changes in positions inside each room were not significant and therefore did not support a finding of separate occasions. We disagree. Tothe extent the facts of Corona, Pena . . . suggest a finding of separate occasions requires a change of location or an obvious break in a perpetrators behavior, we disagree. Subdivision (d) provides otherwise. What the trial court must decide is whether the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. Sexual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way. Therefore, at sentencing a trial court could find a defendant had a reasonable opportunity to reflect upon his or her actions even though the parties never changed physical locations and the parties merely changed positions. (People v. Irvin (1996) 43 Cal.App.4th 1063, 1070-1071.) Given the evidence in our case, we cannot say that no reasonable person could have decided that defendant had a reasonable opportunity to reflect upon his actions before resuming his attack. The trial court did not err in sentencing defendant.

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] All further statutory references are to the Penal Code.

[2] The trial court calculated the sentence for count 5 as follows: defendant received 25 years to life pursuant to section 667.61 for committing forcible oral copulation during the commission of a burglary and while using a dangerous or deadly weapon. That sentence was tripled to 75 years to life pursuant to section 667, subdivisions (b)-(i) and section 1170.12, subdivisions (a)-(d) because of defendants five prior felony convictions. The court added 25 years (five years for each prior felony conviction pursuant to 667, subd. (a)) and a middle term of four years for using a knife during the sex offense pursuant to section 12022.3, subdivision (a).

[3] Subdivision (e) includes, inter alia, rape ( 261, subd. (a)(2)), sodomy ( 286, subd. (c)(2)), and oral copulation ( 288a, subd. (c)(2)).