P. v. Estrada
Filed 6/22/06 P. v. Estrada CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE
| THE PEOPLE, Plaintiff and Respondent, v. BRAULIO ESTRADA, Defendant and Appellant. | B184996 (Los Angeles County Super. Ct. No. PA048169) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles L. Peven, Judge. Affirmed in part, reversed in part, remanded for resentencing.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, AttorneyGeneral, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, and Kyle S. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Braulio Estrada, appeals from his convictions for: first degree residential burglary (Pen. Code,[1] 211); willful, deliberate and premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)); mayhem (§ 203); forcible oral copulation (§ 288a, subd. (c)); forcible rape (§ 261, subd. (a)(2)); and first degree residential robbery. (§ 211.) The jury also found: defendant personally used a deadly weapon (§ 12022, subd. (b)(1)); defendant inflicted great bodily injury (§12022.7, subd. (b)); and in the commission of the forcible oral copulation and rape, defendant inflicted great bodily injury and committed the offenses during a burglary. (§§ 667.61, subds. (a), (b), (e), 12022.8.) The trial court found that defendant was previously convicted of a serious felony. (§§ 667, subds. (a)(1), (b)–(i); 1170.12.) We conclude: only a single indeterminate term may be imposed for the two sex offenses; the holding of Blakely v. Washington (2004) 542 U.S. 296, 301-304 does not require modification of the judgment; and the trial court must either impose or strike the section 12022.8 enhancements on counts 4 and 5. Otherwise, we affirm the judgment.
II. FACTUAL BACKGROUND
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; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On August 25, 1996, Joan Z., age 55, lived with her husband, Joseph Z., age 57, in North Hills. They had been married 34 years at the time. Joseph, who had undergone heart bypass surgery three weeks earlier, was sleeping in a separate bedroom to facilitate his recuperation. Joan had unplugged the telephones so that her husband would not be disturbed. Joan awakened at approximately 5 a.m. after hearing noise in the family room. Joan heard her husband say, â€
