Filed 4/10/17 P. v. Godinez CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

ULISES GODINEZ,

Defendant and Appellant.
C081120

(Super. Ct. No. 14F01917)





Defendant Ulises Godinez appeals the sentence imposed following his convictions for multiple sexual offenses. He contends the trial court erred in imposing a fully consecutive term under Penal Code section 667.6, subdivision (c) (hereafter section 667.6(c)) as the court did not recognize its discretion and did not state reasons for its sentencing choice. Defendant also contends where a single victim was assaulted during a single act, he cannot be convicted of three crimes. We agree with defendant that the trial court did not exercise its discretion under section 667.6(c) and we must remand the matter for resentencing. In all other respects, we affirm.
BACKGROUND
Counts six through eight
In July 2013 T.B. went with her friend to a party at the apartment the friend shared with a roommate, Roxana. T.B. drank about three “jello shots” and a pina colada. She also drank a lot of beer while playing a drinking game. Defendant joined the party before midnight. Eventually, T.B. began to feel the effects of the alcohol. She went to the bathroom, drank some water, vomited, and as she exited the bathroom she blacked out and could not remember anything that happened afterwards. During the time she was blacked out, T.B. kissed defendant and apparently called him. T.B. did not remember calling defendant or how his phone number got into her phone. She was asleep on the couch for about an hour and a half. The party broke up around 2:00 a.m.
Defendant came back to the apartment, sometime before 4:00 a.m. T.B. recalled briefly coming to or waking up at times. On one occasion, defendant was touching her face with his penis, attempting to put it in her mouth and telling her, “[C]ome on. You know you want to.” She turned her head away and closed her eyes. She woke up again face down on the floor with her pants pulled down. Defendant was penetrating her anus and she felt pain. She repeatedly said, “no.” Defendant responded saying, “[I]t’s okay. You like it baby.” T.B. tried to get up, but defendant held her down by the back of her neck. The third time she woke, she said, “rape, rape, rape.” Defendant replied, “[Y]ou got me fucked up, bitch. I didn’t rape no bitch. You got me fucked up.” He got off of her and pulled up his pants. T.B. did not consent to any sexual contact with defendant.
Roxana got up later in the morning. T.B. got sick again and told Roxana she thought defendant had raped her. T.B. told a number of other people about the assault. The police interviewed her and a physical examination revealed multiple anal lacerations consistent with penetration. There was no DNA consistent with anal intercourse, but defendant’s DNA was found on a hickey on T.B.’s neck. T.B.’s blood-alcohol level at 2:00 a.m. would have resulted in gross mental and perhaps physical impairment, and possibly a loss of consciousness.
Counts one through five
In December 2013 two minors, V.M. and J.S., snuck out to go to a party with V.M.’s boyfriend. The party was at defendant’s house. Defendant supplied the minors with marijuana, and they smoked some of it. V.M. had consensual sex with her boyfriend. Defendant then asked multiple times to have sex with V.M., becoming increasingly aggressive. Eventually V.M. had sex with defendant. After the party, defendant offered the minors a ride home. On the way, he pulled the car over and pointed a gun at the minors, demanded their cell phones, and made them get out of the car. Then he made them get back in. After driving a short distance, he pulled over again, showed the gun, and again demanded their phones. The minors handed them over, and defendant left without the minors. A subsequent search of defendant’s car located J.S.’s cell phone, but no gun.
PROCEDURAL HISTORY
An amended information charged defendant with two counts of second degree robbery of the minors (§ 211—counts one & two), digital penetration of a minor (§ 289, subd. (h)—count three), unlawful sexual intercourse with a minor (§ 261.5, subd. (c)—count four), furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)—count five), sodomy upon T.B., at a time when defendant knew she was unconscious (§ 286, subd. (f)—count six), sodomy upon T.B. at a time when she was incapable of resisting due to an intoxicant and defendant knew or reasonably should have known of her condition (§ 286, subd. (i)—count seven), and sodomy by means of force, fear, violence or duress, upon T.B. (§ 286, subd. (c)(2)—count eight). As to counts one and two, the information also alleged that defendant personally used a handgun. (§ 12022.53, subd. (b).)
The jury found defendant guilty on counts one, two, five, six, seven, and eight, and returned true findings on the personal use enhancements attached to counts one and two. The jury found defendant not guilty on counts three and four.
The probation report recommended defendant be sentenced to state prison for a full consecutive upper term of six years, pursuant to section 667.6(c). Defense counsel argued the lower term was the more appropriate term, considering defendant’s young age and lack of significant criminal history. The trial court asked counsel, “Count Eight, the probation department, because of the use of force and violence is not recommending it as the principal term, but rather full, separate, and consecutive under [section] 667.6(c).” Counsel agreed that was the recommendation.
The People argued: “As the Court had duly noted, the forcible sodomy charge under [section] 667.6(c) is a mandatory full term consecutive sentence. Were it non-forcible it would be up to the Court’s discretion, and it would be the People’s request that it still be full term consecutive . . . .”
The trial court sought further argument on the upper versus the midterm on count eight, and indicated that for each additional count, “[e]verything else my plan is to run fully separate and consecutive.”
The prosecutor clarified that the court was considering a midterm sentence:
“[Prosecutor]: Sorry, your Honor. Did you say mid versus upper on Count Eight?
“The Court: Yes. Six versus eight, right?
“[Prosecutor]: Right, your Honor. [¶] I’m sorry. It’s my understanding that it’s a mandatory full term consec [sic].
“The Court: Right--
“[Prosecutor]: You’re saying you’re going to choose--
“The Court: --to whatever I pick--
“[Prosecutor]: Sure. I understand.
“The Court: --low, mid, or upper, it runs full, separate and consec [sic], but doesn’t mean it’s upper term.
“[Prosecutor]: I understand that.
“The Court: So I’m debating six versus eight on that count. It’s still going to run full, separate and consec [sic], and the only other count affected by this, in my view is Count One.”
Defense counsel continued to argue for the lower term on count eight, but did not challenge the assertion that section 667.6(c) mandated the sentence be full, separate, and consecutive.
The trial court sentenced defendant to an aggregate term of 24 years eight months, as follows: the middle term of three years for count one, plus 10 years for the personal use enhancement; a consecutive subordinate term of one year for count two, plus three years four months for the enhancement; plus a consecutive subordinate term of one year four months for count five; the middle term of six years, to run as a consecutive full term (§ 667.6(c)) for count eight; and, for counts six and seven, the middle term of six years for each, stayed pursuant to section 654. In stating the sentence on count eight, the trial court stated: “[Y]ou were convicted by jury of . . . [section] 286[, subdivision] (c)(2). That is an act of sodomy by force, violence, duress, menace, and fear of immediate and unlawful bodily injury to [the victim]. [¶] That falls within the provisions of [] section 667.6(c); therefore it’s a full, separate, consecutive term, and I will impose the middle term of six years but it’s fully consecutive.”
DISCUSSION
I
Defendant contends the trial court abused its discretion in imposing a full consecutive term on count eight under section 667.6(c) both because it failed to realize this was a discretionary sentencing choice, not mandatory, and because the trial court failed to state reasons for the choice. The People contend the claim was forfeited by failure to object and any error was harmless as the record shows the trial court intended to impose a full consecutive term.
“ ‘[A] ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law. [Citations.]’ (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) ‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. [Citations.]’ (Id. at p. 306.) Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination. (People v. Sherrick (1993) 19 Cal.App.4th 657, 661; People v. Manners (1986) 180 Cal.App.3d 826, 834-835.)” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
As a preliminary matter, we reject the People’s assertion that defendant forfeited this issue by failing to raise it in the trial court. The record supports defendant’s claim that the trial court did not believe it had discretion with respect to the imposition of a full consecutive term on count eight and thus the sentence imposed was unauthorized. Accordingly, the issue is not forfeited. (People v. Maharaj (2012) 204 Cal.App.4th 641, 648.)
Section 667.6 allows for a full, separate, and consecutive sentence for conviction of specified sex offenses. Subdivision (d) provides the sentence is mandatory “if the crimes involve separate victims or the same victim on separate occasions.” Subdivision (c) provides that such a sentence is discretionary “if the crimes involve the same victim on the same occasion.” In that circumstance, the court must state a reason for imposing consecutive sentences and a reason for imposing a full consecutive sentence. They may be the same reasons and may be guided by the same criteria used to impose a consecutive sentence under section 1170.1, including: the offenses involved great violence or exhibited a high degree of cruelty; the victim was particularly vulnerable; the defendant took advantage of a position of trust; and any other reasonably related factor. Only one reason is required to support a full, consecutive sentence under section 667.6(c). (§ 667.6, subds. (c), (d); Cal. Rules of Court, rules 4.408(a), 4.421, 4.423, 4.425(a), (b), 4.426(a), (b); People v. Belmontes (1983) 34 Cal.3d 335, 343-349.) “A decision to sentence under section 667.6, subdivision (c) is an additional sentence choice which requires a statement of reasons separate from those justifying the decision merely to sentence consecutively.” (Belmontes, at p. 347.) “The crucial factor . . . is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).” (Belmontes, at p. 348, fn. omitted.)
“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) “Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ‘ “[A] trial court is presumed to have been aware of and followed the applicable law.” [Citations.]’ [Citation.]” (Id. at pp. 1228-1229.)
Here, defendant was convicted of three sexual offenses, counts six, seven, and eight, all related to his assault of T.B. at the party. The offenses involved a single victim on a single occasion. The trial court asked defense counsel if because of the use of force and violence count eight was a full, separate, and consecutive term under section 667.6(c). Defense counsel answered, “Yes.” The People also advised the court that “the forcible sodomy charge under 667.6(c) is a mandatory full term consecutive sentence” not a discretionary one. And, the People later reconfirmed this, stating, “It’s my understanding that it’s a mandatory full term consec [sic].” To which the trial court responded, “Right.” This is not a silent record from which we may presume the trial court was aware of its discretion. Rather, this is a record which affirmatively shows the trial court, and both trial counsel, were operating on the erroneous assumption that the statute mandated the imposition of the full consecutive term. This conclusion is supported by the trial court’s failure to state reasons for imposing a full separate consecutive term.
We also decline to apply a harmless error analysis. (See People v. Sherrick (1993) 19 Cal.App.4th 657, 661 [“[w]e cannot ‘save’ the judgment on a harmless error analysis. While the offenses were undoubtedly serious, the trial court’s comments unquestionably demonstrate that it was laboring under a false impression of appellant’s legal status”].) As noted, remand is necessary in these circumstances to permit the trial court to exercise its sentencing discretion at a new sentencing hearing. (People v. Brown, supra, 147 Cal.App.4th at p. 1228; People v. Downey, supra, 82 Cal.App.4th at p. 912 [“[w]here, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination”].) Accordingly, we will vacate the sentence on count eight and remand for sentencing.
II
Defendant also contends the trial court cannot convict defendant of three crimes for an assault of a single victim by a single act. He acknowledges that the California Supreme Court decided this issue adversely to him in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez), and that we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), but raises the issue to preserve it for federal review.
It is well settled that “the same act can support multiple charges and multiple convictions. ‘Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct (§ 954).’ (People v. Benavides (2005) 35 Cal.4th 69, 97.)” (Gonzalez, supra, 60 Cal.4th at p. 537.) The California Supreme Court recently reaffirmed the reasoning of Gonzalez in People v. White (2017) 2 Cal.5th 349. We are bound by those decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450.) Thus, as long as sodomy by force, sodomy of an intoxicated person, and sodomy of an unconscious person, are different offenses, convictions for all these offenses based on one act are proper.
DISPOSITION
The sentence on count eight is vacated. The matter is remanded for resentencing to permit the trial court to exercise its discretion under section 667.6(c). In all other respects, the judgment is affirmed.



RAYE , P. J.



We concur:



HULL , J.



HOCH , J.