P. v. Rodriguez

Filed 8/15/06 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County. Bryan Foster, Judge. Affirmed.

Daniel G. Koryn, 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, Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant Avertano Rodriguez of two counts of committing forcible lewd acts upon a child, in violation of Penal Code^[1] section 288, subdivision (b)(1), and two counts of committing a lewd act upon a child, in violation of section 288, subdivision (a). Defendant was sentenced to 27 years in prison, including upper-term and consecutive sentencing, and a one-year sentence for a prior conviction pursuant to section 667.5, subdivision (b).

Defendant appeals, contending that the one-year sentence for his prior conviction was based on his admission of the prior conviction after an inadequate advisement and it was made without a requisite finding that the prior conviction allegation was true. He also contends that the trial court's upper-term/consecutive sentencing scheme violated his rights under Blakely v. Washington (2004) 542 U.S. 296.

FACTUAL AND PROCEDURAL HISTORY

Counts 1 and 2 are based on forcible acts occurring during the early morning of March 26, 2004. Count 3 is based on acts committed the preceding evening, March 25, 2004. Count 4 alleges acts committed on March 4, 2004.

The victim had just turned age 12 in March 2004. She testified that she stayed overnight at her uncle's home in Joshua Tree one night in early March. Defendant, a relative, was also there. During that night, defendant came into her bedroom and committed lewd acts.

The victim also stayed at the home on March 25, 2004. Defendant came into her bedroom and committed lewd acts. The victim then went to sleep and was awakened at approximately 5:00 a.m. by defendant's presence. Defendant then committed forcible lewd acts upon her.

The victim's uncle witnessed a portion of the acts on the morning of March 25, 2004, and called police. A nurse working as a sexual assault nurse examiner testified to her physical findings after examination of the victim. She found bruises on the victim's chest and a penetration injury in the victim's vagina.

DNA and other physical evidence also implicated defendant in the March 26 crimes. Defendant testified and denied the crimes, but the jury obviously disbelieved him. On appeal, defendant does not contest the sufficiency of the evidence to support the convictions.

A. The Boykin-Tahl Issue

Defendant contends that his prior prison term enhancement must be stricken because he was not fully advised of his constitutional rights. This contention requires us to apply our Supreme Court's decision in People v. Mosby (2004) 33 Cal.4th 353 (Mosby).

The background of the issue was set forth in Mosby as follows: â€