P. v. Lopez

Filed 3/30/06 P. v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, 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, Assistant Attorney General, Michael R. Johnsen and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

Juan Fernando Lopez appeals from judgment entered following a jury trial in which he was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2)); forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)); three counts of corporal injury to a cohabitant/child's parent (Pen. Code, § 273.5, subd. (a)); assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); assault by means likely to produce great bodily injury and with a deadly weapon (Pen. Code, § 245, subd (a)(1)); and false imprisonment by violence (Pen. Code, § 236) with the further finding that in the commission and attempted commission of the forcible rape and forcible oral copulation, appellant personally used a firearm, to wit, a handgun within the meaning of Penal Code section 12022.53, subdivision (b); and that in the commission of one count of corporal injury, appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). He was sentenced to prison for a total of 46 years and contends the forcible rape conviction must be reversed because the trial court failed to sua sponte instruct on the necessarily included offenses of assault and battery and that the court committed sentencing error. For reasons explained in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

At the time of trial, Lilia Doe[1] was approximately nine months pregnant with appellant's child. She also had two other children, ages six and four, by appellant. She and appellant had met in 1997, but sometime thereafter he left her and was gone for three years. During those three years, Ms. Doe dated another man. In April 2003, she and appellant got back together and they moved into an apartment in West Covina. She and appellant were not legally married. She denied they had a civil ceremony in Mexico approximately seven years ago.

On Sunday, March 21, 2004, Ms. Doe, who was approximately six months pregnant, and appellant were having problems. He accused her of calling the other man on the telephone. Ms. Doe claimed she was not making those phone calls. At some point that day, she, appellant and their son went to pick up appellant's mother and drove her to their apartment. When they left their apartment, appellant was still very angry with Ms. Doe and kept asking her questions about the other man appellant thought she had been seeing. Ms. Doe was very frightened and appellant hit her many times on the face with his fist. When they returned to their apartment, appellant's mother was frightened and asked appellant, â€