P. v. Munoz

Filed 3/19/07 P. v. Munoz CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed in part, reversed in part, and remanded with directions.

David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

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Isidro Delarosa Munoz was convicted of eight sex crimes committed during attacks on three victims on three different days. (Pen. Code, 209, subd. (b)(1), 261, subd. (a)(2), 288a, subd. (c)(2), 286, subd. (c)(2).)[1] He was sentenced to state prison for a term of 133 years to life which included five terms of 25 years to life under the one-strike statute ( 667.61).[2] Munoz appeals, claiming the statute permits only one enhancement per incident and that there were only three incidents in this case. The Attorney General concedes the point and we agree that the sentence must be vacated. (Former 667.61, subd. (g) [a term of 25 years to life shall be imposed once for any offense or offenses committed against a single victim during a single occasion]; People v. Jones (2001) 25 Cal.4th 98, 100-101 [single occasion as used in section 667.61 means a close temporal and spatial proximity between offenses]; see also People v. Fuller (2006) 135 Cal.App.4th 1336.)[3]

Munoz raped and orally copulated Elvira H. inside his car within a few minutes, and committed his crimes against Nicole G. in the same manner. For this reason, there may be only one term of 25 years to life under section 667.61 for each victim. (People v. Jones, supra, 25 Cal.4th at pp. 100-101.)

DISPOSITION

The judgment is reversed and the cause is remanded to the trial court for resentencing; in all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] All section references are to the Penal Code.

[2] Count 4 is based on Munozs September 29, 2004, attack on Sonia D., for which the trial court sentenced Munoz to 25 years to life. Counts 5, 6 and 7 are based on his September 3 attack on Elvira H., for which the trial court imposed three terms of 25 years to life, one of which was stayed. Counts 8, 9, 10 and 11 are based on Munozs September 22 attack on Nicole G., for which the trial court imposed three terms of 25 years to life, one of which was stayed, plus an 8-year high term. Munoz does not challenge the sentence based on the crime involving Sonia D.

[3] Former section 667.61, subdivision (g), was amended in 2006 to delete the statement that a one-strike sentence shall be imposed once for sex crimes committed during a single occasion. (Stats. 2006, ch. 337, 33; Prop. 83, approved by Gen. Elec. (Nov. 7, 2006).)