P. v. Salazar

Filed 3/10/06 P. v. Salazar CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael B. Harris, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part; reversed in part with directions.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, Garrett Beaumont, Senior Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction^[1]

A jury convicted defendant Abel Francisco Salazar of two counts of oral copulation by duress upon a child under 14 (counts 1-2) (§ 269, subd. (a)(1)) and rape by duress upon a child under 14 (counts 4-5) (§§ 269, subd. (a)(4), 261, subd. (a)(2)). The court sentenced defendant to four consecutive terms of 15 years to life.

On appeal, defendant claims that insufficient evidence supported the jury's finding that he committed the acts with duress and that he committed four separate sexual assaults. Defendant also claims the trial court erred in imposing consecutive sentences under section 667.6, subdivision (d), on the following grounds: the sentence was based on facts not found by a jury beyond a reasonable doubt; substantial evidence did not support the court's finding that the acts were committed on separate occasions; and the statute did not apply to violations of section 269. Defendant also claims the court erred by imposing a fine under section 1203.1b without determining his ability to pay.

We conclude that the victim's testimony and defendant's admissions provided substantial evidence to support the jury's verdicts. We also conclude that section 667, subdivision (d), applied to the aggravated sexual assaults in this case and that the evidence supported its application. We, however, agree with defendant that the court erred in failing to determine his ability to pay before imposing the fine under section 1203.1b.

We reverse the judgment only as to the restitution fine. We affirm the judgment in all other respects.

2. Factual and Procedural History

Christina G. had twins, Andrew and Cassandra (born in 1998), and two younger children. As a result of domestic violence and run-ins with law enforcement, Christina and her husband, Eddie M., lost custody of their children in 2001. Around that time, Christina and Eddie separated and Christina began dating and later living with defendant.

In July of 2002, while Christina and defendant were living in a one-bedroom apartment in Hemet, Child Protective Services returned the children to Christina. Although defendant was emotionally detached from the children, defendant disciplined the children and the children called him â€