P. v. Pulido

sFiled 8/22/06 P. v. Pulido CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

Larry S. Knupp, Judge. Affirmed.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.

STATEMENT OF THE CASE

On July 11, 2005, the Los Angeles County District Attorney filed an information charging appellant, Rafael Ruben Pulido, with one count of forcible rape (count 1; Pen. Code § 261, subd. (a)(2)) [1] and one count of forcible sexual penetration by a foreign object (count 2; § 289, subd. (a)(1).) It was alleged as to both counts that appellant had one prior strike conviction within the meaning of sections 1170.12 subdivisions (a) through (d), and 667 subdivisions (b) through (i). It was also alleged that the same prior conviction fell within the meaning of sections 667, subdivision (a)(1), and 667.5, subdivision (b). Appellant pled not guilty to these charges.

On October 20, 2005, a jury found appellant guilty of both counts. Trial on the prior conviction allegations was bifurcated and heard by the trial court, which found them to be true.

Probation was denied and appellant was sentenced to state prison for a total of 21 years (high term on count 1 [8 years], doubled for prior strike finding [16 years]; 5 years for § 667 (a)(1) conviction). Sentence on count 2 was stayed pursuant to section 654. Appellant was granted 236 days of presentence custody credits (206 actual days and 30 days good time/work time credits). The court imposed a restitution fine of $200 pursuant to section 1202.4, subdivision (b), and imposed the same amount as a parole restitution fine, but stayed it pending successful completion of parole. Appellant was ordered to register as a sex offender.

STATEMENT OF FACTS

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690.) After work on July 29, 2004, Christina G. went to the home of her mother-in-law to pick up her three children. Appellant, the brother of Christine's husband, was there. The mother-in-law, Teresa Ornelas, asked Christina to take appellant to his aunt's home, where he resided.

Christina agreed and on the way home, appellant asked to go to her house instead because he was bored at his aunt's. Christina's husband called home from prison and spoke to her and to appellant, his brother. Before and after the call, Christina did her normal household routine, which included cleaning, sorting clothes, and bathing her children and putting them to bed. Appellant watched television while she was working and talked with her.

Christina went to take a shower in the bathroom and locked the door to the bathroom. After her shower, she wrapped a towel around herself and opened the curtain to step out of the tub. She saw appellant in the bathroom, asked him what he was doing in there, and told him to get out. Appellant walked towards her and hugged her. He mumbled that he had thought about this when he was in prison. Christina again asked him to get out, but appellant ignored her.

Christina attempted to get out of the tub and was knocked by the floor by appellant, who then lay on top of her. He held her arms and penetrated her vagina with his fingers. While Christina told appellant to stop, he pried her legs open and penetrated her vagina with his penis. Christina started to cry and told appellant to think of his brother. After her statement, appellant stood up and walked out of the bathroom. Christina showered again and went to sleep in her children's room.

The next morning, appellant was still at the apartment and she drove him home. On October 6, 2005, after conversations with her husband and her mother-in-law, Christina reported the incident to the Downey Police Department.

CONTENTIONS ON APPEAL[2]

Appellant contends that the imposition of the upper term violates his Sixth Amendment right to a jury trial. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) He requests that his sentence be modified to reflect the middle term, rather than the upper term. Respondent contends that this issue was resolved contrary to appellant's position by the California Supreme Court in People v. Black (2005) 35 Cal. 4th 1238 (Black).

DISCUSSION

Appellant's opening brief includes the following statement: â€