Filed 4/18/17 P. v. Rendon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

EDUARDO RENDON,

Defendant and Appellant.


E065400

(Super.Ct.No. RIF1500594)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Eduardo Rendon, of two counts of aggravated sexual assault of a child under the age of 14 years. (Pen. Code, §§ 269, subd. (a)(4), 288a; counts 10-11.) The court sentenced defendant to an aggregate term of imprisonment of 30 years to life consisting of consecutive terms of 15 years to life on each count. On appeal, defendant contends the court erred in imposing consecutive terms because the offenses did not occur on separate occasions. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On June 24, 2015, the People charged defendant by information with three counts of engaging in unlawful sexual intercourse with a victim who was 10 years of age or younger than defendant (§ 288.7, subd. (a); counts 1-3); three counts of oral copulation with a victim who was 10 years of age or younger than defendant (§ 289; counts 4-6); three counts of rape upon a victim who was under 14 years of age and seven or more years younger than defendant (§§ 261, subd. (a)(2), 269, subd. (a)(1); counts 7-9); two counts of oral copulation by force, duress, violence, menace, and fear upon a victim who was under 14 years of age and seven or more years younger than defendant (§§ 269, subd. (a)(4), 288a, subd. (c); counts 10-11); and sexual penetration by force, duress, violence, menace and fear upon a victim who was under 14 years of age and seven or more years younger than defendant (§§ 269, subd. (a)(5), 289, subd. (a); count 12).
 
Approximately 12 family members, including the victim, her parents, uncle (defendant), aunt, and cousins lived in the same home for several years. The victim testified at trial that defendant had committed various sexual acts upon her on four different occasions when she was 10 years of age and in the sixth grade.
On the third occasion, the victim was in the kitchen at night getting some milk when defendant came in and grabbed her from behind. He put his hands underneath her bra and touched her breasts for about five minutes. Defendant pulled down her pants and underwear and inserted his penis into her vagina while they were both standing. He began moving back and forth for between 10 and 15 minutes.
Defendant then pulled up the victim’s shirt and bra and put his mouth on her chest. He knelt down and began orally copulating her. She was standing the entire time with her feet apart and her pants down.
Defendant then stopped, grabbed her cheeks “with his hands strongly,” and forced her to orally copulate him. The victim went down on her knees. Defendant had one hand on his penis and the other on the back of the victim’s head pushing it so she would “suck on his penis.” This lasted for five to 10 minutes before defendant removed his penis from the victim’s mouth.
The victim saw a white liquid on defendant’s penis like she had seen before. The white substance also got into her mouth; she could taste it. The victim went to the bathroom, rinsed out her mouth, and brushed her teeth. The white substance also came out of her vagina while she was using the restroom.
In January 2015, approximately 21 months after the last incident, she told her mother what had happened because she felt like “God was talking to me and telling me I needed to tell my mom.” The victim told her mother, “‘I’m very scared. But I have to tell you, that [defendant] raped me.’”
The victim’s mother called a female pastor at their church and related what the victim had told her. The pastor advised the victim’s mother to take the victim to her school’s counselor. The next day she took the victim to the school counselor. Personnel at the school called the police. Defendant testified that none of the incidents reported by the victim had occurred; he denied ever molesting the victim.
After trial, the People moved to dismiss counts 3, 4, 5, 6, and 12. The court granted the motion. The court and counsel clarified that counts 10 and 11 pertained to defendant’s oral copulation of the victim and the victim’s forced oral copulation of defendant. The jury hung on counts 1, 2, 7, 8, and 9. Defendant moved for a mistrial on those counts, which the court granted. The court later dismissed those counts on the People’s motion.
The People filed a sentencing memorandum in which they argued that pursuant to section 667.6, subdivision (d), the court should impose consecutive prison terms on counts 10 and 11 because the offenses occurred on separate occasions within the meaning of the statute. The court imposed consecutive sentences on counts 10 and 11 with no objection or argument otherwise from defense counsel.
II. DISCUSSION
Defendant contends the court erred in imposing consecutive sentences on counts 10 and 11 because the offenses occurred on the same occasion. We disagree.
“A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d).) “In determining whether crimes against a single victim were committed on separate occasions . . . , 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.” (Ibid.)
Courts have broad discretion under section 667.6, subdivision (d) to determine whether incidents have occurred on separate occasions. (People v. Garza (2003) 107 Cal.App.4th 1081, 1091-1092.) “Once a trial judge has found under section 667.6, subdivision (d), that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior. [Citations.]” (Id. at p. 1092.)
Courts have neither required a break of any specific duration nor any change in physical location in order to impose consecutive sentences. (People v. Garza, supra, 107 Cal.App.4th at p. 1092.) Sexual assaults may be found to have occurred on separate occasions if consisting of various sex acts committed over time even if all the acts took place in the same location and with no break in defendant’s control over the victim. (Ibid.)
“A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants. Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter. By contrast, a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter. Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to degrade the victim. Sexual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way. Therefore, at sentencing a trial court could find a defendant had a ‘reasonable opportunity to reflect upon his or her actions’ even though the parties never changed physical locations and the parties ‘merely’ changed positions.” (People v. Irvin (1996) 43 Cal.App.4th 1063, 1071; contra, People v. Pena (1992) 7 Cal.App.4th 1294, 1316 [consecutive sentences improper where there was no appreciable interval between the rape and oral copulation]; People v. Corona (1988) 206 Cal.App.3d 13, 18 [consecutive sentences improper where, as conceded by the People, there was no interval or cessation between acts of digital penetration, oral copulation, and rape].)
Here, a reasonable trier of fact could have concluded that defendant had a reasonable opportunity for reflection between his offenses of orally copulating the victim and forcing her to orally copulate him. The victim was standing while defendant orally copulated her; he was kneeling down. In moving from orally copulating the victim to forcing her to orally copulate him, the defendant must have arisen to a standing position. He grabbed the victim’s cheeks with his hands, forced her to a kneeling position, and pushed the back of her head to compel her to orally copulate him. The changes in the physical positions of both defendant and the victim, as well as the acts of force, gave defendant sufficient opportunity for reflection between the acts such that the court could have reasonably concluded, in its broad discretion, that the offenses occurred on separate occasions within the meaning of the statute. Thus, the court acted within its discretion in imposing consecutive sentences.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

MILLER
J.