P. v. Perez

Filed 5/2/06 P. v. Perez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas C. Falls, Judge. Judgment modified and affirmed as modified.

Jennifer Mack, 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, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant John Martin Perez of assault with intent to commit rape and/or oral copulation (Pen. Code, § 220)[1] and misdemeanor battery (§ 242). Appellant admitted having suffered a prior serious or violent felony conviction under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the three strikes law) as well as a prior conviction pursuant to section 667, subdivision (a) and a prison-prior pursuant to section 667.5, subdivision (b). On count 1, the trial court sentenced appellant to the aggravated term of six years, doubled to 12 years because of the prior strike conviction. The court added five years pursuant to section 667, subdivision (a)(1) and one year pursuant to section 667.5, subdivision (b), for a total sentence of 18 years.

Appellant appeals on the grounds that: (1) Admitting testimony about appellant's propensity for committing sexual assault violated his right to due process and a fair trial; (2) nurse practitioner Toni Zaragoza was not qualified to testify as an expert regarding the rape examination of the alleged prior victim; (3) Zaragoza's opinion that the examination findings were consistent with the victim's allegations was inadmissible; (4) trial counsel was ineffective in failing to object to Zaragoza's opinion that her findings were consistent with the victim's allegations; (5) trial counsel was ineffective in failing to object to anything on federal constitutional grounds; (6) the crime of which appellant was convicted in count 2 is a lesser included offense to the crime in count 1, and he cannot therefore be convicted of and punished for the offense in count 2; (7) appellant is entitled to three more days of presentence credit; and (8) under Blakely v. Washington (2004) 542 U.S. 296, California's determinate sentencing law violates the Sixth and Fourteenth Amendments.

FACTS

I. Prosecution Evidence of Current Crime

On July 11, 2003, at approximately 7:00 p.m., Jane Doe was walking from her West Covina home to the 7-Eleven store when a man, later identified as appellant, offered her a ride. Doe got in the car because sometimes she met nice people and because the walk to the store was uphill. Appellant did not drive to the store. Instead he drove Doe around the area while making sexual remarks to her. At first she did not think the remarks offensive because she knew â€