P. v. Holbert

Filed 8/29/06 P. v. Holbert CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Derek W. Holbert appeals the judgment following his convictions for assault with intent to commit rape (Pen. Code, §§ 220, 261)[1] and sexual penetration by a foreign object (§ 289, subd. (a)(1)). He claims the trial court erred by improperly commenting on the evidence, denying his motion for new trial, failing to dismiss the sexual penetration conviction as an included offense of the assault, and conducting a jury trial of sentencing factors. He also claims instructional error, section 654 error, and error in ordering a sex offender fine (§ 290.3) and reimbursement of medical examination costs (§ 1203.1h). We will strike the section 1203.1h order. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

On a Sunday morning, victim Kimberly V. was walking on the campus of the University of California at Santa Barbara. She approached a building and saw that it was closed. Holbert was nearby and asked Kimberly if she was trying to get in the building. Kimberly answered, "[y]es." Holbert followed her as she walked towards another building on campus.

Holbert knocked Kimberly to the ground, pulled her pants and underwear down to her lower thighs, knelt on top of her, and pulled his own pants down. Kimberly screamed, bit Holbert on his finger, and scratched his face. Holbert put his finger into her vagina.

At the same time, David Shere was working in a campus building and David Oldfield was walking his dog on campus. Both men heard Kimberly scream and ran to her aid. Shere pulled Holbert off Kimberly and Oldfield knocked him down.

Shere and Oldfield saw Holbert on top of Kimberly with his pants down to his knees trying to pull Kimberly's clothes off. Oldfield also saw that Holbert had an erection.

Holbert pulled up his pants and began walking away. Oldfield called 911 from his cell phone and, at the request of the police dispatcher, Oldfield and Shere followed Holbert from a distance of several feet relaying information to the dispatcher until university police officers arrived at the scene.

The officers took Holbert to a hospital when they saw scratch marks on his face and a bite mark on his finger. Officer Daniel Wilson was present when a nurse asked how Holbert's finger was injured and Holbert replied, "[s]omebody bit me." Another nurse examined Kimberly and found vaginal abrasions consistent with digital penetration, as well as other abrasions on her body.

Following the attack, Shere and Oldfield met briefly with Kimberly at a women's center in the presence of a counselor so that Kimberly could thank them. The details of the attack were not discussed.

Prior to trial, the court granted Holbert's request to represent himself. Holbert represented himself during trial, posttrial proceedings, and sentencing.

After the verdict and at the request of the court, the jury made special findings that the offenses involved a high degree of cruelty, viciousness, or callousness, and that the victim was particularly vulnerable, each of which constitutes a factor the court could consider in aggravation of sentence. (Cal Rules of Court, rule 4.421.) At sentencing, the court made the same findings. The court sentenced Holbert to prison for fourteen years, consisting of a base upper-term of six years for assault with intent to rape, and a consecutive upper term of eight years for sexual penetration by a foreign object.

DISCUSSION

No Misconduct in Judicial Comment

Holbert contends the trial court violated his right to a fair trial by stating in the presence of the jury that the case did not present an issue of mistaken identity. He argues that the court's comment undermined his defense and "left the impression the court was allying itself with the prosecution." We disagree.

Article VI, section 10, of the California Constitution provides, in pertinent part: "The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause." In People v. Rodriguez (1986) 42 Cal.3d 730, 766, our Supreme Court stated: "On its face, the constitutional language imposes no limitations on the content or timing of judicial commentary, deferring entirely to the trial judge's sound discretion. The appellate courts have recognized, however, that this powerful judicial tool may sometimes invade the accused's countervailing right to independent jury determination of the facts bearing on his guilt or innocence. Hence, the decisions admonish that judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power." (See also People v. Slaughter (2002) 27 Cal.4th 1187, 1217-1218.)

On cross-examination, Holbert asked witness Shere whether he had viewed suspects in a police lineup. When Shere answered in the negative, Holbert asked whether Shere had "seen any pictures of any other suspects likely to have committed this crime." After Shere answered no, the prosecutor objected on relevance grounds. The court asked Holbert to explain the relevance of the question, and the following colloquy ensued:

"DEFENDANT HOLBERT: Mistaken identity is a point, your Honor.

THE COURT: Mistaken identity of the person he pushed off of the young woman and followed until he was taken into custody?

DEFENDANT HOLBERT: I don't know, your Honor. Would you like to just hand him the podium or what?

THE COURT: No. I don't have any need to do that. I don't think there's any mistaken identity issue in the case.

DEFENDANT HOLBERT: I didn't understand the Court had an opinion on the case.

THE COURT: I don't have an opinion on the case, but I don't think there's an issue of mistaken identity.

DEFENDANT HOLBERT: You said the witness could not be mistaken. That's an opinion, your Honor.

THE COURT: I think under the circumstances of the witness's testimony, there's no issue of mistaken identity."

These comments by the trial court could be reasonably interpreted as the expression of an opinion. Trial judges "should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other." (People v. Zammora (1944) 66 Cal.App.2d 166, 210.)

Nevertheless, the circumstances establish that the court's comments did not undermine the fairness of Holbert's trial. The comments did not withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or usurp the jury's ultimate factfinding power.

Here, there was a brief exchange, not a pattern of judicial misconduct that discredits the defense or creates the impression the court is allying itself with the prosecution. (People v. Carpenter (1997) 15 Cal.4th 312, 353; People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.) "'[O]ur role . . . is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.'" (People v. Snow (2003) 30 Cal.4th 43, 78.)

Moreover, the trial court's comments accurately reflected the state of the evidence. (See People v. Slaughter, supra, 27 Cal.4th at p. 1218.) Holbert did not present a credible mistaken identity defense. Overwhelming and uncontradicted evidence establishes that Holbert was the man Shere and Oldfield saw on top of Kimberly when they came to her rescue, and the man they kept in their plain view until he was arrested. Kimberly, Shere, and Oldfield corroborate each other's unequivocal testimony, and the witness testimony was further corroborated by an ATM video showing Kimberly and Holbert in the same picture, the cell phone conversation between Oldfield and the police, and the scratch and bite marks on Holbert's body.

No Abuse of Discretion in Denial of New Trial Motion

Holbert contends that the trial court abused its discretion in denying his motion for a new trial. We disagree. (People v. Williams (1997) 16 Cal.4th 635, 686 [denial of new trial motion reviewed for abuse of discretion].)

After the evidentiary phase of trial, Holbert requested disclosure of the criminal histories of Kimberly and witnesses Shere and Oldfield. The prosecution provided information showing that Oldfield had misdemeanor convictions for contributing to the delinquency of a minor, corporal injury to a spouse, and false imprisonment. Kimberly had no material criminal history.

In his new trial motion, Holbert claimed that untimely disclosure of Oldfield's misdemeanor criminal record impeded his ability to impeach Oldfield. Holbert asserted that Oldfield's record was "so shocking . . . that one can even question who's responsible for the crime," and that he could "validly question" whether Oldfield was "the actual perpetrator based on his previous convictions."

Initially, it is unlikely that evidence of Oldfield's convictions would have been admissible. Evidence Code section 788 provides that prior "felony" convictions are admissible for impeachment unless "[t]he accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4 . . . ." Oldfield's misdemeanor convictions had been expunged pursuant to section 1203.4. The "Truth-in Evidence" provision of Proposition 8 abrogates the statutory limitation of admissibility to "felony" convictions (People v. Wheeler (1992) 4 Cal.4th 284, 288), but does not affect the inadmissibility of evidence of convictions that have been dismissed under section 1203.4. (People v. Field (1995) 31 Cal.App.4th 1778, 1789-1790.)

We consider the merits of Holbert's claim because the admissibility problem does not negate the prosecution's constitutional duty to disclose information to the defense. (Cf. People v. Martinez (2002) 103 Cal.App.4th 1071, 1079.) The prosecution has a duty to disclose information that is favorable and material to the defense, including information that could impeach prosecution witnesses. (Brady v. Maryland (1963) 373 U.S. 83, 86-87; In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; see also § 1054.1, subds. (d) & (e).)

Failure to disclose information requires reversal, however, only when there is a reasonable probability that disclosure would have resulted in a different outcome. (Kyles v. Whitley (1995) 514 U.S. 419, 433-434; In re Sassounian, supra, 9 Cal.4th at p. 544.) Here, there was no reasonable probability that disclosure would have resulted in a different outcome. As the trial court indicated, there was overwhelming and uncontradicted evidence of Holbert's guilt.

Moreover, nothing in the record supports Holbert's claim that Oldfield's convictions support an inference that Oldfield was the perpetrator, or his claim that the post-assault meeting of Kimberly, Oldfield and Shere resulted in "contaminated or commingled testimony." Without any evidentiary support for Holbert's assertions, Oldfield's convictions had minimal impeachment value.

Instructional Error Not Prejudicial

Holbert contends the trial court erred by failing to instruct the jury to view evidence of out-of-court admissions with caution. (CALJIC No. 2.71; People v. Mayfield (1997) 14 Cal.4th 668, 776.) We agree but the error was harmless.

Kimberly testified that she bit Holbert's finger during the attack, and Officer Wilson testified that he heard Holbert tell a nurse that "somebody bit me." Respondent concedes that Holbert's statement was an admission, but correctly argues that it is not reasonably probable that the jury would have reached a result more favorable to Holbert if the cautionary instruction had been given. (People v. Dickey (2005) 35 Cal.4th 884, 905.)

Because there was no conflict in the evidence concerning Holbert's exact words or their meaning, the instruction would have had limited effect in assisting the jury in determining whether the admission was actually made or accurately repeated by Officer Wilson. (See People v. Dickey, supra, 35 Cal.4th at pp. 905-906.) Moreover, there was substantial evidence that Kimberly bit Holbert apart from Holbert's admission. Kimberly testified that she bit Holbert, and both Officer Wilson and the nurse saw a bite mark. Also, as we have stated, the identity of Holbert as the assailant was not in issue in the case.

Assault with Intent to Rape Not a Lesser Included Offense

Holbert contends that his conviction for assault with intent to rape (§ 220) should be dismissed because it is a necessarily included offense of sexual penetration by a foreign object (§ 289). We disagree.

A defendant cannot be convicted of both an offense and a lesser included offense based upon a single act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)

Holbert correctly argues that an attempt to commit an offense is generally a lesser included offense of the completed commission of that offense. Accordingly, assault with intent to commit rape, an aggravated form of attempted rape, is a lesser included offense of rape. (See People v. Holt (1997) 15 Cal.4th 619, 674; People v. Norrington (1921) 55 Cal.App. 103, 109-110.) Similarly, assault with the intent to sexually penetrate with a foreign object is a lesser included offense of sexual penetration by a foreign object. (See People v. Saunders (1991) 232 Cal.App.3d 1592, 1598.)

Holbert, however, was not convicted of an attempt to commit a particular offense and the completed commission of that offense. He was convicted of an assault with intent to commit one offense (rape under § 261) and the commission of another offense (sexual penetration under § 289). Section 220 covers both rape and sexual penetration by a foreign object, but there is no basis for Holbert's argument that an assault with intent to commit one enumerated offense constitutes a lesser included offense of the other enumerated offenses.[2] There is no legal authority supporting the argument, and its logical consequence would be that assault with intent to commit one enumerated offense necessarily includes the elements of assault with intent to commit all of the other enumerated offenses.

Holbert points out that the accusatory pleading alleged assault "with intent to commit rape in violation of Penal Code sections 261 and 289." (Italics added.) But, Holbert does not claim that the apparently erroneous reference to section 289 created uncertainty regarding the offenses charged, or the elements of the offenses, or otherwise affected his substantial rights. (See People v. Haskin (1992) 4 Cal.App.4th 1434, 1439; People v. Thomas (1987) 43 Cal.3d 818, 826.)

Section 654 Does Not Bar Multiple Punishment

Holbert contends that section 654 prevents punishment for both of his offenses because the assault with intent to rape was committed to facilitate sexual penetration by a foreign object. Again, we disagree.

Section 654 precludes punishment for multiple offenses committed with a single intent and objective in an indivisible course of conduct, but permits punishment for each offense committed with a different intent or objective. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Typically, a defendant who commits multiple sex offenses during a single attack is deemed to have multiple objectives, even when one follows another in rapid, uninterrupted succession. (People v. Masbruch (1996) 13 Cal.4th 1001, 1008; People v. Perez (1979) 23 Cal.3d 545, 552.) We will affirm a trial court's express or implied factual determination regarding intent and objective whenever the finding is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162-163.)

Although Holbert did not raise a section 654 issue in the trial court, the court found that his offenses were separate and distinct in its determination of another sentencing issue. Substantial evidence supports this implied finding that Holbert committed the two offenses with separate and different objectives. As the court stated, the evidence supports the conclusion that Holbert committed the assault with intent to rape by throwing Kimberly to the ground and by pulling down her and his own clothes with the intent to penetrate with his penis. When Kimberly bit his finger and scratched his face, Holbert suspended his attempt to rape her, and committed the genital penetration by a foreign object offense by inserting his finger in her vagina.

No Prejudicial Error in Jury Trial of Sentencing Factors

In an effort to comply with Blakely v. Washington (2004) 542 U.S. 296, the trial court conducted a jury "trial" of two aggravating factors relevant to the court's imposition of an upper term sentence.[3] Holbert contends that the trial court violated his due process rights by adopting this "non-standard" sentencing procedure, and that his sentence should be reduced to the middle term for the offenses. We disagree.

During trial, the prosecution informed the court that it would seek an upper term sentence if Holbert was convicted, and proposed that the existence of aggravating factors relevant to sentencing be determined by the jury through "special findings." The trial court agreed. Accordingly, after the verdict, the court requested the jury to make "true" or "not true" findings of whether the crimes "involved acts disclosing a high degree of cruelty, viciousness or callousness" and whether "[t]he victim in this case was particularly vulnerable." No additional evidence was presented and, after argument, the jury found both allegations true.

Holbert challenges the court's failure to track the language of California Rules of Court, rule 4.421 in the proposed findings or instruct the jury on the meaning of the language actually used. Respondent tacitly concedes that the court lacked authority to adopt a procedure that effectively modified a legislative enactment, but argues that the jury findings were unnecessary and superfluous.

We agree with respondent that any irregularities in sentencing Holbert were not prejudicial. The record shows that the court imposed an upper term sentence based on the exercise of its own independent discretion apart from the jury findings. At sentencing, the court made its own findings, following the precise language of rule 4.421, that Kimberly was "particularly vulnerable" and that the crimes involved "great violence and the threat of great bodily harm, disclosing a high degree of cruelty, viciousness, and callousness." The court also stated that it was prepared to impose an upper term sentence solely on the basis of Holbert's prior criminal history. (Cal. Rules of Court, rule 4.421(b).) The court stated that its decision to allow the jury to make factual findings was motivated by an "abundance of caution," and understood, in the words of the prosecutor, that sentencing was "still . . . the judge's call."

No Error in Imposing Full Consecutive Term

The trial court imposed a full, consecutive term for sexual penetration by a foreign object. (§ 667.6, subd. (d).)[4] Holbert contends that section 667.6, subdivision (d) does not apply because he had no prior conviction for a crime enumerated in the statute, and because his two offenses were committed against the same victim on the same occasion. We conclude that the court properly found that imposition of a full consecutive sentence for the sexual penetration offense was mandatory under section 667.6, subdivision (d).

Section 667.6, subdivision (d) requires the court to impose a full and consecutive term for a violation of section 220 provided the defendant has been "convicted previously" of certain other offenses "if the crimes involve separate victims or involve the same victim on separate occasions." We will follow existing authority that the phrase "convicted previously" does not require a prior conviction in a different case. (In re Rodney (1999) 73 Cal.App.4th 36, 40.) The mandatory sentencing requirement applies when a defendant is convicted of an enumerated offense and a violation of section 220 in the same case. (Id., at p. 40; see also People v. Bohannon (2000) 82 Cal.App.4th 798, 809-812 [interpreting § 667.6, subd. (c)].)

We also reject Holbert's contention that there was insufficient evidence for the court to have found that the offenses were committed on separate occasions. Section 667.6, subdivision (d), states: "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions."

Here, there was substantial evidence supporting the trial court's finding that the two offenses occurred on separate occasions, and that Holbert had a reasonable opportunity to reflect on his actions between the assault and sexual penetration offenses. The court stated that there was "ample time for the defendant to desist from his assault of her especially after she bit his finger and scratched his face and was screaming, so he had a reasonable opportunity to reflect upon his actions before proceeding with the insertion of his finger in her vagina," and that the court "finds that there were separate occasions although in close proximity in time." (Cal. Rules of Court, rule 4.426(a)(2).)

Judgment Must be Modified to Correct Section 290.3 Fine

Holbert contends that the trial court erred by imposing a "fine of $730 including penalty assessment pursuant to Penal Code Section 290.3." Holbert contends that the total amount should have been $680, consisting of a $200 fine and $480 in penalty assessments. Respondent counters by arguing that the total amount should have been $1,700, consisting of a $500 fine and $1,200 in penalty assessments. We agree with respondent, and will order a modification of the judgment to reflect the correct fine and penalties.

Undisputedly, both of Holbert's offenses are covered by section 290.3, subdivision (a), which requires "a fine of two hundred dollars ($200) upon the first conviction or a fine of three hundred dollars ($300) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.) When a defendant is convicted of two or more covered offenses in the same proceeding, each offense constitutes a separate conviction requiring the imposition of a $200 fine for one conviction, plus $300 for each other conviction. (People v. O'Neal (2004) 122 Cal.App.4th 817, 822.)

Absent a finding of Holbert's inability to pay, the correct section 290.3 fine is $200 for one offense and $300 for the second offense totaling $500. And, based on a $500 section 290.3 fine, it is undisputed that the required penalty assessments total $1,200. A $500 penalty is required pursuant to section 1464, a $100 surcharge is required pursuant to section 1465.7, and $350 and $250 penalties are required pursuant to Government Code sections 76000 and 70372, respectively.

We reject Holbert's claim that O'Neal was wrongly decided, and his arguments that O'Neal should not be applied in this case. Holbert argues that because O'Neal was decided after his offenses, its application violates ex post facto principles. The ex post facto clause bars retroactive application of a judicial decision only if it constitutes an unforeseeable judicial enlargement of criminal liability indefensible under prior law. (People v. Brown (2004) 33 Cal.4th 382, 391.) O'Neal's interpretation of section 290.3 was foreseeable, based on the clear meaning of the statutory language, and did not expand the penal effect of the statute.

Holbert also argues that we should presume an implied finding that Holbert lacked the ability to pay any fine in excess of the amount imposed by the trial court. Neither case law nor the record permit such a presumption. It is the defendant's burden to demonstrate an inability to pay a section 290.3 fine (People v. McMahan (1992) 3 Cal.App.4th 740, 749-750), and the record shows no significant attempt by Holbert to meet this burden.

We also disagree with Holbert's assertion that the prosecution waived its right to request an additional fine and penalties by failing to object in the trial court. The fine imposed by the court constituted an unauthorized sentence. A reviewing court may correct the sentence even though no objection was made in the trial court. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1257.)

Section 1203.1h Reimbursement Improperly Ordered

The trial court ordered reimbursement of the cost of a medical examination of Kimberly pursuant to section 1203.1h, subdivision (b). Holbert contends that the order was improper because the court failed to determine the cost of the examination or make a finding that Holbert had the ability to pay the cost. We agree.

Section 1203.1h, subdivision (b) permits a trial court to require a defendant convicted of a sexual assault or attempted sexual assault to pay the cost of any medical examination conducted by a public agency for the collection and preservation of evidence. The statute provides that, "[i]f the court determines that the defendant has the ability to pay all or part of the cost of the medical examination, the court may set the amount to be reimbursed and order the defendant to pay that sum . . . in the manner in which the court believes reasonable and compatible with the defendant's financial ability. In making the determination of whether a defendant has the ability to pay, the court shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. . . ."

As Holbert contends, section 1203.1h expressly requires the court to make a finding of the defendant's ability to pay, and includes provisions for the determination of the amount to be paid. In the absence of such determinations, the fee cannot be imposed. (People v. Wardlow (1991) 227 Cal.App.3d 360, 371-372.) Here, there is no evidence of the cost of the examination, or any consideration of Holbert's ability to pay. And, nothing in the record suggests any reason why the cost was not determined at the time of sentencing as contemplated by the statute.

Respondent argues that the trial court made an implied finding of Holbert's ability to pay based on references in the record to his income and assets. These references are insufficient to establish an implied finding, or the express finding required by the statute. Respondent further argues that an express finding was not required at the sentencing hearing because the amount of direct victim reimbursement had not been determined and, therefore, the court could not have "take[n] into account . . . any amount the defendant has been ordered to pay in restitution." (§ 1203.1h.) There are statutory procedures to determine the amount of victim restitution after sentencing, including a procedure for the defendant to contest the determination. (§ 1202.4, subd. (f).) But, there are no such procedures for a deferral of the determination of the reimbursable cost of a section 1203.1h medical examination, and no procedures for a defendant to contest a deferred determination. Section 1203.1h requires the determination of the amount and the defendant's ability to pay at sentencing when the order is made. (See People v. Wardlow, supra, 227 Cal.App.3d at pp. 371-372.)

DISPOSITION

The judgment is modified to impose a section 290.3 sex offender fine in the amount of $500, plus penalty assessments of $1,200. The judgment is further modified to strike the order made pursuant to section 1203.1h. The trial court is directed to prepare an amended abstract of judgment showing these modifications and to forward a certified copy to the Department of Corrections. The matter is remanded for a determination of Holbert's ability to pay. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

George C. Eskin, Judge

Superior Court County of Santa Barbara

______________________________

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise specified.

[2] Section 220 provides in its entirety: "Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288 or 289 is punishable by imprisonment in the state prison for two, four, or six years."

[3] Holbert's trial occurred prior to People v. Black (2005) 35 Cal.4th 1238.

[4] Section 667.6, subdivision (d) provides in part: "A full, separate, and consecutive term shall be served for each violation of Section 220 . . . , provided that the person has been convicted previously of violating Section 220 . . . , paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, . . . [or] subdivision (a) of Section 289, . . . if the crimes involve separate victims or involve the same victim on separate occasions. . . ."