The People v. Atkins CA3

Filed 8/27/13 P. v. Atkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C070154
Plaintiff and Respondent, (Super. Ct. No. 10F03637)
v.
GREGORY JAMAR ATKINS,
Defendant and Appellant.
Defendant Gregory Jamar Atkins molested the daughter and son of friends with
whom he lived on and off. An information charged defendant with four counts of oral
copulation on a child 10 years of age or younger, attempted sexual intercourse with a
child 10 years of age or younger, and three counts of forcible lewd and lascivious acts on
a child under the age of 14. (Pen. Code, §§ 288.7, subd. (b), 664/288.7, subd. (a), 288,
subd. (b)(1).)1 A jury found defendant guilty on all counts. Sentenced to 45 years to life
plus a consecutive term of 19 years in state prison, defendant appeals, requesting this
1 All further statutory references are to the Penal Code unless otherwise indicated.
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court review the school records of one of his victims to determine the scope of discovery,
contending the prosecution committed misconduct, and alleging sentencing error. We
shall remand for a reconsideration of consecutive sentences on counts six and seven. In
all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The Victims
A.D., who was 13 years old at trial, and M.D., age 10 at trial, are the daughter and
son, respectively, of L.P. and J.K. The couple also have two other children, ages six and
one at trial. Defendant has two children with A.D.’s aunt (the children’s aunt).
Defendant lived with A.D. and her family in the past. He had been in A.D.’s life
as long as she could remember, and she thought of defendant as her uncle.
Molestations of A.D.
A.D. testified that defendant touched her in her “private part” with his hand and
mouth. Defendant touched her under her clothing. Defendant touched A.D.’s private
with his “private.” He tried to put his private into A.D.’s private but was unsuccessful.
When he tried to put his private in her private it hurt. On more than one occasion, A.D.
saw “something come out of [defendant’s] private.”
The molestations began when A.D. was five and living in the New Helvetia
apartment complex with her family and defendant. The touching happened “[a] lot” and
also took place at the home of the children’s aunt.
As a prelude to the molestations, defendant would send A.D.’s brothers outside
and call A.D. into a room. On one occasion, the touching took place at the children’s
aunt’s home; defendant sent A.D.’s brothers and cousins outside and then called A.D.
into her aunt’s room. After A.D. went into the room, defendant started touching her.
Defendant removed A.D.’s clothes and touched her private parts with his mouth, holding
her down on her aunt’s bed.
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Defendant also touched A.D. this way when she lived in a house on Twin Road.
Although A.D. initially could not recall being touched at a 6th Parkway apartment where
she had lived, she recalled an incident after being shown a photograph of the apartment.
Defendant touched her with his private while in her room. On another occasion
defendant put his penis in A.D.’s mouth.
A.D. recalled an incident at the 6th Parkway apartment in which defendant woke
her up. After A.D. went to the bathroom, she returned to her room to find defendant
standing there. She got into bed, pulling up the covers. Defendant pulled off the covers
and began touching her. He removed A.D.’s clothes and put his mouth on her private
part before trying to put his private in her private.
While living at the New Helvetia apartment, defendant touched A.D. while they
were in his room. Defendant also showed A.D. videos of naked people doing “[n]asty
stuff.”
When defendant touched A.D. he held down her arms to prevent her from moving.
After he touched her, defendant gave her money so she would not tell anyone what
happened. Defendant told A.D. that if she told anyone about the incidents he would kill
her.
Molestations of M.D.
A.D. saw defendant commit sexual acts with her brother M.D. Once, when A.D.
walked into her great-aunt’s house, she saw M.D. kneeling down with his mouth on
defendant’s private.
M.D. testified that defendant put his privates in M.D.’s mouth. This happened
more than once, and M.D. did not say anything because he was scared. Defendant would
push M.D.’s head down so M.D. could not get away. M.D. also testified about
witnessing defendant with a cover over his privates; A.D. was under the covers with her
head “moving up and down.”
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Discovery
A.D. developed a rash on her privates and told her mother. A.D.’s mother asked
her if someone was touching her. A.D. told her mother about defendant, and her mother
grabbed a knife and went to confront defendant at A.D.’s great-aunt’s house. A day later
A.D. spoke with the police.
Interviews with Child Abuse Unit
The case was later assigned to Detective Carol Mims. After Detective Mims
reviewed the police report, she scheduled a special assault forensic evaluation (SAFE)
interview for A.D. and M.D. The two children were interviewed on May 24, 2010. A
video of the interview was played for the jury.
During the SAFE interview, A.D. stated she told her mother about the touching
after she developed a rash. Defendant had been touching A.D. since she was five years
old. He put his tongue on A.D.’s private parts and told her if she told anyone he would
kill her. He also gave A.D. money.
A.D. also described incidents at the 6th Parkway apartment, including the incident
in which defendant woke her up and molested her after she returned from the bathroom.
Defendant put his tongue on her private and held her down to prevent her moving.
Something white came out of defendant’s private.
In addition, A.D. described an incident at the home of the children’s aunt, when
defendant put his tongue in A.D.’s private and then put his private into her private.
Defendant had sent her brothers and cousins outside to play before molesting her. He
then pulled down A.D.’s pants and put his tongue in her private. He held her down and
tried to put his private on A.D.’s private. Defendant then put his tongue back on A.D.’s
private. He gave A.D. money and told her he would kill her if she told anyone what
happened.
During the interview, A.D. also discussed an incident when she was five and
living in the New Helvetia apartment. Defendant, who lived with her family, called A.D.
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into his room and put his tongue on her private. He told her he would kill her if she told
anyone.
A.D. estimated defendant molested her 19 times while she lived at New Helvetia.
Defendant molested her two more times at the children’s aunt’s home, two more times at
her old home, and one time at her new home.
A.D. described defendant’s molesting M.D. by putting his privates in her brother’s
mouth. She also stated defendant showed her videos of naked people.
During M.D.’s SAFE interview, a video of which was also shown to the jury, he
stated defendant molested him more than once. M.D. described defendant’s waking him
up and making him “suck his privates.” Defendant would pull his pants down and stand
by M.D.’s bed. He would tell M.D. he would give him money when he was done and
then he would push M.D.’s head down onto his private part. M.D. also saw defendant do
the same thing to his sister A.D.
Medical Examination
Dr. Jason Leu examined A.D. after she reported the rash in her vaginal area. A.D.
told Leu she had had some vaginal bleeding because defendant “had tried to penetrate her
vaginal area.” The molestations began when A.D. was five.
Leu’s external examination of A.D. revealed lesions at A.D.’s vaginal opening.
A.D.’s urine test showed she had chlamydia; her blood test showed signs of syphilis.
A.D. also suffered from a yeast infection. Based on these results and A.D.’s age, Leu
concluded she had been sexually abused. Tests for sexually transmitted diseases proved
negative for M.D. at his initial examination.
A SAFE nurse performed forensic examinations of both children. The results
could neither confirm nor negate sexual abuse.
A.D. and M.D. were retested for syphilis and chlamydia: A.D. tested positive for
both and M.D. tested positive for syphilis. The SAFE nurse explained that the syphilis
retest was necessary because of the incubation period of the disease.
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The nurse testified neither disease could be transferred by sharing clothing or
contact with toilets. Syphilis can only be transmitted through sexual contact. In 2010,
out of 56 reported cases of syphilis in Sacramento County, only three involved
individuals under the age of 19. In July 2010 defendant tested positive for syphilis.
Child Sexual Abuse Accommodation Syndrome
Dr. Anthony Urquiza, a psychologist, testified regarding child sexual abuse
accommodation syndrome. Urquiza testified the syndrome is an educational tool used to
help dispel misperceptions about sexual abuse.
Five categories characterize the syndrome: secrecy, helplessness, entrapment and
accommodation, delayed and unconvincing disclosure, and retraction. Secrecy describes
the abuser’s relationship with the victim and the effort to silence the child. Helplessness
refers to the child’s vulnerability to the abuser. Entrapment and accommodation refer to
the child’s ensnarement in the relationship and the child’s efforts to cope with the
experience. Delayed and unconvincing disclosure describes the abused child’s reluctance
to report the abuse immediately and tendency to later recant the allegations.
Defense Case
Defendant testified in his own behalf. He was a childhood friend of A.D. and
M.D.’s father. When defendant first moved to Sacramento from Louisiana he renewed
their acquaintance. After a time, defendant moved into the New Helvetia apartment with
the family. Defendant had little contact with A.D. He lived with the family for
approximately six months and then returned to Louisiana.
Defendant came back to Sacramento in 2004 and moved in with the children’s
great-aunt; he later lived with the children’s aunt in an apartment on Sky Parkway. A.D.
and her family subsequently moved into the Sky Parkway apartment. In 2006, after
“things [started] getting kind of crazy” at the Sky Parkway apartment, defendant moved
briefly to San Francisco. He returned to the apartment later that year.
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Defendant moved into his own apartment in Spartan Village. A.D. and her family
later moved in with defendant for about a year. Nothing inappropriate took place with
A.D. or M.D. during this time; he did not see the children very often.
Defendant moved to the Sunny Slope apartments. A.D.’s parents moved in with
defendant, but A.D. and M.D. did not. In 2008 defendant moved back in with the
children’s aunt for a couple of months, then moved to North Sacramento. In 2009
defendant moved in with the children’s great-aunt and became her care provider.
Some months later, defendant and the children’s great-aunt moved back to Spartan
Village. While living there, defendant occasionally spent the night at A.D.’s family’s
home on 6th Parkway. Defendant denied doing anything inappropriate at the Sky
Parkway residence or at the Spartan Village apartment.
Defendant first learned of the children’s allegations when their mother L.P. came
to his apartment, armed with a knife. Defendant went to A.D.’s apartment to respond to
the charges. When A.D.’s father J.K. arrived, he told defendant to leave. Defendant left.
J.K. later told defendant to return to Louisiana. Defendant refused since he had
not done anything wrong. However, defendant changed his mind after some of L.P.’s
family members tried to “jump” him.
Defendant bought a bus ticket to Louisiana and also visited his brother in
Arkansas. Police arrested defendant in Arkansas. After his return to Sacramento,
defendant learned of M.D.’s allegations against him.
While he lived in California, defendant testified he had a problem with alcohol,
and used marijuana and Ecstasy. Although defendant admitted watching pornography, he
testified he did it alone. Defendant stated he saw A.D. and M.D. watching pornography
in the presence of their parents, who were “passed out.”
According to defendant, A.D. and L.P. stole money from him when he passed out
in his room. Defendant admitted giving M.D. and A.D. money for ice cream but did not
give A.D. money to buy her silence. He did not threaten to kill her.
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Defendant did not molest A.D. or M.D. However, defendant acknowledged telling
a detective that if he molested either child it was “because [he] was drunk and high.”
Defendant also testified he “probably” told the detective that if he tested positive for
syphilis, he would have to “own up” to what he did.
Aftermath
An information charged defendant with four counts of oral copulation on a child
10 years of age or younger (counts one, two, five, & eight), attempted sexual intercourse
with a child 10 years of age or younger (count three), and three counts of forcible lewd
and lascivious acts on a child under the age of 14 (counts four, six, & seven). The
information also alleged defendant committed the offenses against two or more victims.
(§ 667.61, subd. (e)(5).) Defendant entered a plea of not guilty.
The jury found defendant guilty on all counts and found the special allegation true.
Count one and the special allegation as to that count were dismissed on the People’s
motion because the statute did not exist at the time of the offense.
The court sentenced defendant to 45 years to life in state prison plus a consecutive
term of 19 years: 15 years to life on counts two, five, and eight, and the middle term of
seven years on count three, the middle term of six years on count six, and the middle term
of six years on count seven. The court imposed a six-year sentence on count four, which
was stayed pursuant to section 654. Defendant filed a timely notice of appeal.
DISCUSSION
REVIEW OF SCHOOL RECORDS
Defendant asks us to independently review A.D.’s school records in order to
determine whether there were items the trial court should have disclosed following its in
camera review of A.D.’s records. Defendant asks us to determine whether the school
records contain information relevant to A.D.’s credibility. We granted defendant’s
motion to augment the record with the sealed documents. The People do not oppose the
request.
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Background
Prior to trial, defense counsel requested that the trial court review A.D.’s school
records in camera for any exculpatory, material, and/or relevant admissible evidence.
The trial court found sufficient cause to inspect the school records. The court’s review of
the records revealed no records “that should properly be disclosed to the defense.”
Discussion
Education Code section 49076 limits access to a student’s school records. A
review of these records requires either written parental consent or a court order, unless
the request qualifies under certain exceptions. (Ibid.)
Confidentiality gives way when the requested information facilitates the pursuit of
facts and the goal of a fair trial. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536.)
Confidential files may be disclosed if defense counsel makes a plausible justification for
disclosure or a good cause showing of a need for the documents. (Alford v. Superior
Court (2003) 29 Cal.4th 1033, 1045.) The trial court reviews the confidential documents
in camera to determine whether or not disclosure is warranted. (§ 1326, subd. (c).)
In turn, we review the confidential records the trial court declined to disclose to
determine whether they are material and should have been disclosed. Such evidence is
material only if there is a reasonable probability that had the evidence been disclosed, the
result of the trial would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial. (People v. Martinez
(2009) 47 Cal.4th 399, 453-454.)
Our review of the confidential records reveals no material evidence that should
have been disclosed to the defense.
PROSECUTORIAL MISCONDUCT
Defendant argues the prosecutor committed misconduct during closing argument.
According to defendant, the prosecutor vouched for the credibility of A.D. and M.D. by
referring to facts not in evidence. These comments, defendant contends, prejudiced him.
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Background
During closing argument, the prosecutor addressed inconsistencies between A.D.’s
and M.D.’s interview testimony and the testimony they gave at trial. The prosecutor
referenced comments by defense counsel during opening statements concerning “how
children are gonna [sic] react to having to testify.” The prosecutor referenced
Dr. Urquiza’s testimony “that the environment kids are in greatly affects their ability to
give accounts of what happened to them.”
The prosecutor referred to a sexual assault training seminar one of her colleagues
attended. Defense counsel objected. After the court overruled the objection, the
prosecutor stated: “And before one of the lunch breaks the instructor said to the class,
okay, when you all get back from lunch I’m gonna [sic] call on one of you and I’m gonna
[sic] ask you about your last sexual experience, who it was with, where it happened,
details, foreplay, positions. [¶] Okay. Have a good lunch.”
Defense counsel objected and the trial court overruled the objection. The
prosecutor continued: “As you can imagine, half the class didn’t even come back, but my
colleague did, and he sat there staring at his feet thinking, I cannot do this. [¶] And
that’s when he heard the instructor say, you all are sitting there imagining how hard it
would be to talk about your last sexual experience. [¶] I’m gonna [sic] assume that was
a consentual [sic] one. Now think about talking about it, talking about a sexual
experience that was forced on you with a person who forced it upon you sitting 15 feet
away from you. [¶] These kids testified to the best of their ability, but their testimony
has been filtered by a year and a half of trying to forget.”
Discussion
A prosecutor’s conduct violates the federal Constitution when it comprises a
pattern of conduct so egregious that it infects the trial with such unfairness as to deny the
defendant due process. Prosecutorial conduct that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
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use of deceptive or reprehensible methods to attempt to persuade either the court or the
jury. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
As a general rule, a defendant must object to the prosecutor’s misconduct and
request an admonition when the misconduct occurs. (Samayoa, supra, 15 Cal.4th at
p. 841.) The defendant’s failure to object or request an admonition is excused if either it
would be futile or an admonition would not have cured the harm caused by the
misconduct. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.)
A prosecutor commits misconduct by invoking his or her personal prestige or
experience in an effort to bolster the case against a defendant. (People v. Riggs (2008)
44 Cal.4th 248, 302.) It is misconduct for a prosecutor to refer to matters not in evidence
unless they are matters of common knowledge or drawn from common experience.
(People v. Cunningham (2001) 25 Cal.4th 926, 1026.) Moreover, it is improper for the
prosecutor to vouch for the veracity of witnesses by reference to facts outside the record.
(People v. Williams (1997) 16 Cal.4th 153, 257 (Williams).)
Here, the prosecutor referred to a seminar on abuse of children attended by a
colleague. The seminar sought to explain the inability of children to recall an incident of
abuse by asking participants to recall their consensual sexual encounters.
According to defendant, the seminar instructor, the colleague, and the prosecutor
herself were all unsworn witnesses whom defendant could not cross-examine about the
details of this experiment. The seminar instructor, defendant argues, was impliedly some
sort of expert in the field of child abuse, an expert defendant could not cross-examine. In
essence, the prosecutor committed misconduct by injecting facts not in evidence into
closing argument in an effort to “explain away” inconsistencies in the children’s
testimony, thereby bolstering their credibility.
The prosecutor’s comments came during closing argument. The trial court
instructed the jury that “Nothing that the attorneys say is evidence. In their opening
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statements and closing arguments, the attorneys discuss the case, but their remarks are
not evidence.” (CALCRIM No. 222.)
Here, the prosecutor provided the anecdote about a seminar to explain the
discrepancies between the children’s testimony during the SAFE interviews and their trial
testimony. In the process, the prosecution did not introduce “new evidence” to bolster
the children’s credibility, but instead attempted to provide an example of faulty memory
that the jurors could either accept or reject.
The prosecution enjoys wide latitude to discuss and draw inferences from the
evidence at trial; whether those inferences are reasonable is for the jury to decide.
(People v. Dennis (1998) 17 Cal.4th 468, 522.) The prosecution’s argument may be
vigorous as long as it amounts to a fair comment on the evidence, including reasonable
inferences and deductions drawn from that evidence. (Williams, supra, 16 Cal.4th at
p. 221.) The seminar anecdote amounted to just such fair comment and did not constitute
prosecutorial misconduct.
CONSECUTIVE SENTENCES UNDER SECTION 667.6
Defendant argues the consecutive terms imposed on counts six and seven should
be reversed because the prosecution failed to plead and prove enhanced sentencing under
section 667.6. According to defendant, “The information alleged that [defendant]
committed eight separate violations of the Penal Code, but mentioned nothing about
sentencing [defendant] to full-term consecutive sentences. [Citation.] Accordingly, the
trial court therefore lacked the authority to impose the full consecutive sentences.” The
imposition of full-term sentences under section 667.6, defendant argues, constitutes a
sentencing enhancement.
Background
The information charged defendant with attempted sexual intercourse with a child
10 years of age or younger, count three, and three counts of forcible lewd and lascivious
acts on a child under the age of 14, counts four, six, and seven. A.D. was the victim
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named in all four counts. The court sentenced defendant to consecutive terms: the
middle term of seven years on count three, the middle term of six years on count six, and
the middle term of six years on count seven.
Discussion
Section 1170.1, subdivision (e) states that all “enhancements shall be alleged in
the accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” Defendant asserts the imposition of full-term consecutive
sentences under section 667.6 constitutes a sentencing enhancement.
Section 667.6, subdivision (c) states: “In lieu of the term provided in
Section 1170.1, a full, separate, and consecutive term may be imposed for each violation
of an offense specified in subdivision (e) if the crimes involve the same victim on the
same occasion. A term may be imposed consecutively pursuant to this subdivision if a
person is convicted of at least one offense specified in subdivision (e). If the term is
imposed consecutively pursuant to this subdivision, it shall be served consecutively to
any other term of imprisonment, and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be included in any
determination pursuant to Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the time the person otherwise
would have been released from prison.”
Subdivision (d) of section 667.6 states, in pertinent part: “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. [¶] 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
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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.”
In People v. Reynolds (1984) 154 Cal.App.3d 796, the court determined any
sentence imposed under section 667.6, subdivision (c) was in lieu of any enhancement
under section 1170.1; therefore, sentencing under section 667.6, subdivision (c) does not
require any further pleading or proof. (Reynolds, at p. 810.)
The Reynolds court reasoned: “[W]hile the facts giving rise to most enhancements
must be charged and found, ‘enhancement arising from consecutive sentences result [sic]
from the sentencing judge’s decision to impose them, and not from a charge or finding.’
This clearly should be the case with regard to consecutive sentences imposed pursuant to
sections 667.6, subdivisions (c) and (d). Those sections only affect the length of the
consecutive sentence (whether it is full or reduced). They do not change the fact that the
consecutive sentence is imposed for the underlying crime which has clearly been charged
in the complaint and information. There is nothing else to charge or find . . . . [Citation.]
[¶] Defendant was specifically charged with the crimes for which the consecutive terms
were imposed. No further pleading . . . is required.” (Reynolds, supra, 154 Cal.App.3d
at pp. 810-811.)
Defendant concedes Reynolds refutes his contention that the court erred in
imposing consecutive terms on counts six and seven, but argues Reynolds was wrongly
decided. We do not find defendant’s argument against Reynolds’ reasoning persuasive.
The trial court properly sentenced defendant on counts six and seven.
FULL CONSECUTIVE TERMS ON COUNTS SIX AND SEVEN
Finally, defendant argues that in sentencing him to full consecutive terms on
counts six and seven, the court failed to make a finding that the two crimes were
committed on separate occasions. Since the two counts involve the same victim,
defendant argues, the trial court had to make an express finding that the acts occurred on
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separate occasions. According to defendant, substantial evidence does not support such a
showing.
Background
During sentencing, the prosecution requested the upper term on counts three, six,
and seven. The prosecutor argued: “The defendant in this case violated a little girl from
the time she was five years old, all of the way up through the time that she was 11 and
disclosed the abuse. And did so also to a little boy of nine-years-old. And as has been
stated, these children thought of him as an uncle. They trusted him. Their entire family
trusted him, and not only did he . . . commit horrible acts against them causing them
confusion and mental anguish, but also infected both with sexually transmitted diseases.”
The court asked the prosecutor if counts six and seven should have full
consecutive sentences, and whether such a sentence was at the court’s discretion or if the
Legislature had mandated consecutive terms.
The prosecutor stated that counts six and seven “would be consecutive, but the
Court has the discretion as far as which triad to impose.” The court repeated that the
offenses required consecutive sentences, and defense counsel stated: “I further agree that
Counts Six and Seven which are [section] 288[, subdivision] (b)(1) require mandatory
consec[utive] by law.” The court imposed a six-year consecutive sentence on count six
and an additional six-year consecutive sentence on count seven.
Discussion
In count six defendant was charged with placing his “mouth on victim’s vagina in
[the] bedroom of [the] 6th Parkway apartment” between August 5, 2009, and
December 25, 2009. Count seven alleged defendant placed his “penis on victim’s vagina
in [the] bedroom of [the] 6th Parkway apartment” between August 5, 2009, and
December 25, 2009.
Section 667.6, subdivision (d) mandates consecutive sentences “if the crimes
involve separate victims or involve the same victim on separate occasions.” Under
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subdivision (d), “[i]n 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.”
The People concede that for the section 667.6 mandatory provision to apply,
counts six and seven must have taken place on separate occasions. At trial, the evidence
revealed that one time at the 6th Parkway apartment, defendant removed A.D.’s clothes
and then put his mouth on her private before trying to put his private in her private.
During her SAFE interview, A.D. stated defendant had put his mouth on her private for a
long time, then removed his boxers and tried to put his private in her private.
The People argue that based on these facts, it was reasonable for the court to
determine defendant had the opportunity to reflect between the time he removed his
mouth from A.D.’s vagina, stopped to remove his boxers, and then attempted to place his
penis into her vagina. We disagree.
Here, there is no evidence of any interval between those sexual acts affording
defendant a reasonable opportunity for reflection. Defendant did not cease his assaultive
behavior and then resume it. (See People v. Corona (1988) 206 Cal.App.3d 13, 18;
People v. Pena (1992) 7 Cal.App.4th 1294, 1316.)
Since counts six and seven were committed against A.D. on the same occasion, the
court in its discretion could impose full-term consecutive sentences under section 667.6,
subdivision (c). However, the court did not indicate it was exercising its discretion in
sentencing defendant on counts six and seven. In invoking its discretion during
sentencing, the court must indicate it is making a discretionary choice and provide and
explain its reasoning. (People v. Belmontes (1983) 34 Cal.3d 335, 347.) Therefore, we
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remand to the trial court to determine whether, in its discretion, full-term consecutive
sentences were warranted under section 667.6, subdivision (c).
DISPOSITION
We remand the matter to the trial court to consider its discretion to impose
consecutive sentences on counts six and seven pursuant to section 667.6, subdivision (c).
In all other respects, the judgment is affirmed.
RAYE , P. J.
We concur:
MURRAY , J.
HOCH , J.
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