P. v. Muise

Filed 4/14/06 P. v. Muise CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant John Allen Muise guilty as charged of assault with intent to commit rape, sodomy, or oral copulation (Pen. Code, § 220), inflicting corporal injury on a spouse (Pen. Code, § 273.5), false imprisonment by force (Pen. Code, §§ 236, 237, subd. (b)), and threatening to commit a crime involving death or great bodily injury (Pen. Code, § 422). The jury was unable to reach a verdict on the charge that defendant committed forcible sodomy (Pen. Code, § 286, subd. (c)(2)). After the jury was discharged, defendant entered a plea of guilty to this last charge in exchange for the prosecutor's agreement that his total sentence would not exceed eight years, and the false imprisonment and threat charges would be reduced to misdemeanors. Thereafter the trial court sentenced defendant to the aggravated term of eight years on the sodomy charge; concurrent terms of four years on the assault charge and three years on the spousal injury charge; and concurrent one-year county jail terms for each of the two misdemeanors. Defendant filed a timely notice of appeal.

On appeal, defendant contends: (1) the trial court erred by not instructing with CALJIC No. 17.01 advising the jury of the necessity that they must unanimously agree on the specific acts constituting the charged offenses; (2) he cannot be convicted of forcible sodomy and the lesser included offense of assault with intent to commit sodomy; (3) the sentences on the assault and the spousal injury counts should have been stayed pursuant to Penal Code section 654; and, (4) the trial court's imposition of the aggravated term on the forcible sodomy count violated defendant's constitutional right to jury trial as enunciated in Blakely v. Washington (2004) 542 U.S. 296. We find no prejudicial error, but we do conclude that defendant's third contention requires modification of the judgment. We affirm as modified.

BACKGROUND

Defendant and his wife J. lived in one unit of a duplex in Fortuna; Norman McKenna and his wife Sherri lived in the other unit. Around midnight on December 27, 2002, the McKennas heard loud noises and then angry voices coming from the Muises's unit. Through the common wall, the McKennas heard â€