P. v. Chavez

Filed 6/16/06 P. v. Chavez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial in December of 2004, Jorge Chavez Chavez (appellant) was found guilty of three counts of forcible rape in counts 1, 3, and 4 (Pen. Code, § 261, subd. (a)(2));^[1] one count of forcible oral copulation in count 2 (§ 288a, subd. (c)); two counts of forcible false imprisonment in counts 5 and 7 (§ 236); and one count of sexual battery in count 6 (§ 243.4). All acts were committed on April 21, 1997, against the same victim, S.

The trial court sentenced appellant to a total prison term of 24 years, consisting of a six-year midterm on count 1 and full, consecutive midterms of six years each on counts 2, 3, and 4. The court stayed sentence on counts 6 and 7, pursuant to section 654. It originally stayed sentence on count 5 as well, but then struck count 5, at the urging of the prosecutor, because it was the same offense described in count 7.^[2] The 24-year term was ordered to run consecutively to an eight-month term imposed in a separate case in which appellant was found in violation of probation.

Appellant contends three of the counts must be reversed because they are barred by the statute of limitations. He also claims Blakely^[3] error. We agree that the issue whether two of the counts are barred by the statute of limitations must be remanded to the trial court for determination. In all other respects, the judgment is affirmed.

FACTS

Around 9:00 p.m. on April 20, 1997, S. went with her friends Maria, Sally, and Sonia to listen to a band and dance at the Red Rooster in Visalia. Appellant arrived at some point in the evening. Maria knew appellant; she had dated his wife's brother. S. recognized appellant, but had no prior relationship with him. Four or five hours after they arrived, several girls, including S., accepted a ride home from appellant.

After the others in the car were dropped off, S. thought appellant would take her to her house. Instead, appellant drove past her house to an orchard. When the car stopped, S. got out and tried to get away, but appellant pulled her back to the car by her arm. He then forced her into the back of the car where he touched her breasts, demanded she remove her shirt, sucked on her breasts, and then took off her skirt and underwear. Appellant held S. down while he forced his penis into her vagina. He withdrew it and licked her vagina. He then forced his penis back into her vagina, withdrew it, and asked S. to perform oral sex on him. S. refused and he again forced his penis into her vagina and ejaculated.

After S. put her on her clothes, appellant drove her to her house. It was after 3:00 a.m. Instead of going into her house, she went to a neighbor's house, where her childhood friend and her friend's mother lived. There, S., who was upset and crying, told the two she had been raped and described what had happened. S. had bruising on her right biceps that looked like finger marks.

S. then went home to take a shower, but, because she was â€