People v. Simmons CA2/6 ( 2024 )

Filed 5/15/24 P. v. Simmons CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B329462
(Super. Ct. No. SB214013)
Plaintiff and Respondent, (Santa Barbara County)
v.
CARL DWAYNE SIMMONS,
Defendant and Appellant.
In 1996, Carl Dwayne Simmons was convicted of a number
of crimes relating to the kidnapping and sexual abuse of a
juvenile. The court sentenced Simmons to 27 years four months,
plus life with the possibility of parole in 15 years. The sentence
included two years for two prior prison term enhancements
pursuant to former Penal Code section 667.5, subdivision (b).1
Simmons petitioned for resentencing pursuant to section
1172.75. The trial court struck the prior prison term
All statutory references are to the Penal Code unless
1
otherwise stated.
enhancements, but otherwise reimposed the original sentence.
Simmons contends the trial court erred in reimposing the original
upper term and reimposing consecutive sentences. He also
contends the court erred in failing to update his custody credits.
We remand for the trial court to update Simmons’s custody
credits. In all other respects, we affirm.
FACTS
A jury found Simmons guilty of false imprisonment by
violence (§ 236) (count 1); rape by force or violence (§ 261, subd.
(a)(2)) (count 2); forcible oral copulation (former § 288a, subd. (c))
(counts 3 and 4); sodomy by use of force (§ 286, subd. (c)) (count
5); rape by foreign object (§ 289, subd. (a)) (count 6); and
possession for sale of cocaine base (Health & Saf. Code,
§ 11351.5) (count 7). The jury also found true that Simmons
personally used a deadly weapon in connection with counts 5 and
6. (Former § 12022.3.) Two prior prison term enhancements
were also found true under former section 667.5, subdivision (b).
Underlying Offense2
Lilly O., who was 17 years old at the time of trial, obtained
a sack of crack cocaine from Simmons. She intended to sell the
cocaine. She believed it would sell for $150 and that she would
get to keep $50. Instead, her roommate's stepbrother stole the
cocaine. Lilly O. knew she would be in trouble with Simmons
when she could neither give him the money nor return the drugs.
Simmons found Lilly O. at her home. When Lilly O. told
Simmons that she did not have the drugs or the money, he told
her she was going to get "broke off." Lilly O. understood this to
2 The facts are taken from our opinion in Simmons’s appeal
of the original conviction. (People v. Simmons (Feb. 17, 1998,
B108576) [nonpub. opn.].)
2
mean she would be beaten or killed. Simmons told her to get
dressed for work. Because he picked out a short skirt for her, she
assumed he was talking about prostitution.
Lilly O. put on the clothes Simmons chose for her and left
the residence with him. She did not try to run because she
believed she could not hide all her life. Simmons threatened that
if she tried to escape he would shoot her. After they stopped at a
number of places, he took her to a motel in Carpinteria.
In the motel room Simmons became physical and rude. He
locked all three locks on the door. He told her to remove her
clothes and perform oral sex on him. She complied out of fear.
After she was done, he made her sit in the corner "Indian style"
with knees "smashed up to the wall." Circular bruises appeared
on her knees as a result of them being smashed against the wall.
After Lilly O. sat in the corner for about 20 minutes,
Simmons pulled her up by the hair. He told her to orally copulate
him again and she complied.
The next sex act Lilly O. could remember was "regular sex."
She told Simmons to stop, but he would not. She was crying and
told him it hurt, but it had no effect on him.
During Lilly O.'s captivity in the motel room, she was made
to sit in the corner two or three times. Simmons hit her on the
head with his open hand and his closed fist. When he hit her
with his fist, her head hit a dresser, raising bumps on her head.
Simmons told her not to scream or cry or he would kill her. He
told her he was going to put duct tape over her mouth and watch
her suffocate.
At one point he ran a razor down her face, causing a bald
spot on her cheek. He told her it would be sad if he scarred her
for life. He said the razor was a "legal weapon." She said it felt
3
like he was really going to hurt her. He told her, "This is true
pimp shit, and this is Inglewood."
At another point while Lilly O. was in the corner, Simmons
put a belt around her neck and tightened it. She thought she was
going to die because she could not breathe. He took the belt off.
She felt nauseated and light-headed. She could feel her pulse in
her face. He told her she was no fun because she could not even
scream or cry in the way he wanted.
Finally, just before they left the motel, Simmons told
Lilly O. he was going to sodomize her. Before he sodomized her,
he put baby oil on his finger and inserted it in her "butt." While
he was sodomizing her, she cried and told him it hurt, but he
kept on going even harder.
After Simmons and Lilly O. left the motel room, they went
to Simmons's car. Simmons received a call on his pager. They
went back to the motel so that Simmons could use a pay phone
near the office. A man was using the pay phone. As Lilly O. and
Simmons approached, Lilly mouthed "help me" to the man. The
man, who happened to be a Los Angeles County Deputy Sheriff,
detained Simmons. Lilly O. ran into the motel office, leaped over
the desk, and curled into a ball in the manager's apartment.
Santa Barbara County Sheriff's Deputies arrived at the
motel. Simmons volunteered to a deputy that he and a friend
were at the motel and they had sex. A pat-down search of
Simmons yielded a marijuana pipe and cocaine.
Original Sentence
The trial court sentenced Simmons to a determinate term
of 27 years four months in state prison as follows: 1) the upper
term of eight years for count 2; 2) the upper term of eight years,
consecutive, for count 3; 3) the upper term of eight years,
4
consecutive, for count 4; 4) one-third the middle term, eight
months, consecutive, for count 1, stayed under section 654; and 5)
one-third the middle term, one year four months, consecutive, for
count 7. For count 5 and 6, the court sentenced Simmons to life
with the possibility of parole in 15 years under section 667.61,
subdivision (e)(4). The court imposed two years in prison,
consecutive, for the enhancements under former section 667.5,
subdivision (b).
Section 1172.75 Motion
In September 2022, Simmons filed a motion for
resentencing pursuant to section 1172.75. Simmons requested
that, in addition to striking the prior prison term enhancements,
the trial court should reduce the upper term sentences on counts
2, 3, and 4, and impose concurrent sentences on counts 3, 4, and
7. The court struck the prior prison term enhancements, but
otherwise reimposed the original sentence.
In deciding to reimpose the original sentence, the court
stated:
“The Court has considered [California] Rule[s] of Court[,
rule] 4.421(a) in deciding to impose the upper term, the factors in
aggravation, that the crimes involved greatviolence, threat of
great bodily harm, the acts involved a high degree of cruelty,
viciousness, or callousness, and that the victim was particularly
vulnerable.
“The Court also considered the factors under [California]
Rule[s] of Court[, rule] 4.421(b) that [Simmons] engaged in
violent conduct that indicates a serious danger to society, that his
prior convictions as an adult were increasing in seriousness, that
he was on parole at the time the crimes were committed.
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“The Court has also considered [California] Rule[s] of
Court[, rule] 4.423, the circumstances in mitigation, and the only
mitigating factor the Court found was that [Simmons] was 24, his
age at the time of the crime.The Court has weighed the
mitigating factor against the numerous aggravating factors and
found that the aggravating factors outweigh the one mitigating
factor, which [is cause] for an upper term for the sentences in
Counts 2, 3, and 4.
“I've also considered [California Rules of Court, rule] 4.425
in deciding to impose a consecutive rather than concurrent
sentence.”
DISCUSSION
I
Section 1172.75, subdivision (a) provides that a sentence
enhancement for a prior prison term (§ 667.5, subd. (b)) imposed
prior to January 1, 2020, is invalid. Section 1172.75, subdivision
(c) requires the court, upon finding a judgment includes such an
enhancement, to recall the sentence and resentence the
defendant. In resentencing, the court must apply any changes in
the law that reduce sentences or provide for judicial discretion so
as to eliminate disparity and promote uniformity in sentencing.
(Id., subd. (d)(2).)
II
Simmons contends the trial court erred in reimposing the
upper term on counts 2, 3, and 4.
Simmons relies on section 1170, subdivision (b)(2), which
provides, in part: “The court may impose a sentence exceeding
the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term and the facts
6
underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.”
Simmons points out that the circumstances in aggravation
that justified the imposition of the upper term on counts 2, 3, and
4 were not stipulated by him or found true beyond a reasonable
doubt at trial.
But Simmons was not resentenced under section 1170. He
was resentenced under section 1172.75. The resentencing
scheme specific to section 1172.75 applies.
Section 1172.75, subdivision (d)(4) provides: “Unless the
court originally imposed the upper term, the court may not
impose a sentence exceeding the middle term unless there are
circumstances in aggravation that justify the imposition of a term
of imprisonment exceeding the middle term, and those facts have
been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”
Under section 1172.75, subdivision (d)(4), the phrase
“[u]nless the court originally imposed the upper term” carves out
an exception to the requirement that aggravating factors must be
admitted or proven. Here, because the trial court originally
imposed the upper term on counts 2, 3, and 4, there was no need
for a stipulation or proof beyond a reasonable doubt to reimpose
the upper term.
Simmons’s reliance on People v. Butler (2023) 89
Cal.App.5th 953, review granted May 31, 2023, S279633, is
misplaced. Butler did not involve resentencing under section
1172.75.
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III
Simmons contends the trial court erred in imposing
consecutive sentences on counts 3, 4, and 7.
Count 2, rape, and counts 3 and 4, forced oral copulation,
are crimes enumerated in section 667.6, subdivision (e). Section
667.6, subdivision (d)(1) provides: “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.”
Section 667.6, subdivision (d)(2) provides: “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 the defendant’s actions and nevertheless resumed sexually
assaultive behavior. Neither the duration of time between crimes,
nor whether or not the defendant lost or abandoned the
opportunity to attack, shall be, in and of itself, determinative on
the issue of whether the crimes in question occurred on separate
occasions.”
Under section 667.6, subdivision (d)(1), consecutive terms
are mandatory if the crimes involve the same victim on separate
occasions. In determining whether the sex crimes occurred on
separate occasions, the trial court must consider whether,
between one crime and another, the defendant had a reasonable
opportunity to reflect on his actions.
Here, after the first oral copulation, Simmons made his
victim sit in the corner for 20 minutes before forcing her to orally
copulate him again. That was more than an ample opportunity
for Simmons to reflect on his actions before committing the
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second forced oral copulation. The trial court so found at
Simmons’s original sentencing. There is no reason to believe the
court made a different finding here.
As to count 7, the trial court’s references to the prior
sentencing transcript and California Rules of Court, rule 4.425
were sufficient to support a consecutive sentence.
IV
Simmons contends the matter must be remanded to the
trial court to correctly calculate his custody credits. The People
agree.
When a court resentences a defendant, it must recalculate
his custody credits to the date of resentencing. (People v.
Buckhalter (2001) 26 Cal.4th 20, 29.) The court failed to do so
here.
The matter is remanded to the trial court to recalculate
Simmons’s custody credits to his May 31, 2023, resentencing date
and to amend the abstract of judgment to reflect those credits. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. BALTODANO, J.
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Von Deroian, Judge
Superior Court County of Santa Barbara
______________________________
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, William H. Shin and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.