APPEAL from a judgment of the Superior Court of Butte County, Thomas W. Kelly, Judge. (Super. Ct. No. CM029834)
The opinion of the court was delivered by: Hull , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted by a jury of three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of receiving stolen property (id., § 496, subd. (a)) and was sentenced to full consecutive terms on the rape counts. (Further undesignated section references are to the Penal Code.)
He appeals, contending: (1) defense counsel's failure to object to evidence of prior uncharged acts of violence amounted to ineffective assistance; (2) the legal standard for imposing full consecutive sentences under section 667.6, subdivision (d), where multiple sex offenses occur on "separate occasions" is unconstitutionally vague; (3) he was denied the right to a jury trial on whether the three rapes occurred on separate occasions; and (4) there is insufficient evidence of one of the three rapes or, in the alternative, the trial court erred in failing to instruct on the definition of sexual intercourse necessary for rape.
We requested supplemental briefing on two additional issues: (5) whether the trial court provided an adequate statement of reasons for imposing full consecutive sentences on the three rape offenses; and (6) whether there is sufficient evidence to support a finding that the three rapes occurred on separate occasions.
We reject each of defendant's contentions. However, we conclude the evidence does not support the trial court's implied finding that the third rape occurred on a separate occasion. We therefore remand for resentencing.
During much of 2008, defendant and the victim, Jenna B., were in a dating relationship. In May of that year, defendant assisted the victim in moving out of her dormitory room at California State University, Chico. Another student, K.S., was moving out of her dorm room around the same time. At one point, K.S. left the door to her room open slightly while she took things to her car. Inside the room, she left a large black purse containing, among other things, a laptop computer. When K.S. returned to her room, the purse and its contents were gone. Sometime later, defendant gave the purse to the victim as a gift and sold the computer to his roommate for $500. At the time of the sale, defendant knew the computer had been stolen.
On October 18, 2008, defendant and the victim were together at her residence and got into an argument about defendant eating the rest of a banana bread she had made and calling the victim "a fat Arab bitch," "slut," and "whore." The victim asked defendant to leave and dropped him off at his residence. Around midnight, the victim sent defendant a text message inviting him to come over and sleep with her. Defendant responded with a message that it was "up to [her]." The victim replied, "never mind."
Nevertheless, around 2:00 a.m. on October 19, defendant showed up at the victim's residence and knocked on her bedroom window. The victim woke up and let him in. Defendant was belligerent and angry. The victim asked him to leave, but he refused.
Around this time, defendant got a telephone call from his ex-girlfriend who asked where defendant had been. Defendant responded that he had "been dating a fucking slut." The victim again asked defendant to leave but he refused. He grabbed the victim's cell phone and tried to break it and then laid down on the floor to sleep.
The victim grabbed defendant's leg and began dragging him out of her room. Defendant started kicking the victim and she kicked him back. Defendant stood up and overturned a nightstand and chair. He threatened to knock the victim out.
A week or so earlier, the victim had told defendant she might be pregnant and he appeared to be pleased at the prospect. However, the victim later learned she was not pregnant. While arguing with defendant in her room during the early morning hours of October 19, the victim told defendant that if she had been pregnant, she would have aborted the fetus. She was purposely trying to hurt him in order to induce him to leave, but he would not.
The victim eventually screamed for her roommate, J.D., who opened her bedroom door and found defendant and the victim standing nearby. The victim was crying and complained that defendant had her cell phone. J.D. told defendant to give the victim back her phone and he complied. J.D. returned to her room and closed the door.
The victim and defendant returned to her room, where the victim attempted to call 911. Defendant grabbed her phone and took the battery out of it. The victim later went to sleep in her room and defendant slept on a couch in the common area of the residence.
The next morning, defendant knocked on the victim's door and she let him in. She returned to her bed. Defendant was still upset and she asked him to leave. He refused. The victim asked for her phone battery and defendant told her she could have it after she gave him a ride home. She refused.
Defendant approached the victim's bed and pulled her toward the middle of it. He grabbed her foot and pushed it behind her head. He got on the bed and placed his body on top of her. The victim was wearing only panties and a t-shirt. Defendant began ripping the victim's panties and eventually pulled them down over her legs, while the victim struggled to stop him. Defendant "shoved" his finger inside the victim's vagina and said he would make it so she could not have babies. Defendant was smiling and appeared to be enjoying himself. He then removed his finger and inserted it in her anus. The victim told defendant to stop and he responded, "Shut the fuck up."
Defendant removed his finger, stood up and said, "I can put my dick in you right now." Defendant removed his clothes, got on top of the victim, held her legs back with his hands, and inserted his penis in her vagina. She begged him to stop and he again said, "Shut the fuck up." Defendant said, "How does it feel to be the first girl I raped?"
Defendant pulled his penis out of the victim's vagina and told her to turn over. She refused. He told her she had a choice between her "ass" and her mouth. She then complied. Defendant inserted his penis inside the victim again, while holding her neck with one hand and her hair with the other. Defendant then removed his penis and began rubbing it over her "butt." He again inserted his penis in her vagina. Finally, defendant removed his penis, moved up the victim's back and ejaculated on the side of her face.
Defendant got up and got dressed and the victim drove him home. When she returned to her residence, the victim met J.D., who was leaving for the gym. The victim was crying and told J.D. defendant had raped her. J.D. called the police.
The police responded to the scene and the victim was taken to a hospital for examination. The victim had a lot of bruising on her body, mostly on her legs. She also had semen in her hair. The examination of the victim's vagina was consistent with her report of the incident.
While the police were at the scene, defendant arrived to retrieve his wallet that he had left behind. He was detained and later taken to the police station. While there, the victim placed a pretext call to defendant and repeatedly asked him why he had done "it." Defendant professed not to know what she was talking about but eventually said, "[b]ecause I'm stupid, I'm an idiot." At one point, the victim said, "I've never seen this side of you," and defendant responded that he had "never seen this side of [himself] either." Defendant further said, "I know I was wrong. I know you know that I'm not like that."
Defendant was charged with three counts of forcible rape (§ 261, subd. (a)(2)), two counts of sexual penetration with a foreign object (§ 289, subd. (a)(1)), and one count of receiving stolen property (§ 496, subd. (a)). He was convicted by a jury of the rape and stolen property counts, but acquitted of the sexual penetration charges. Defendant was sentenced to the middle term of two years for the property offense and full consecutive middle terms of six years on each of the rapes, for an aggregate sentence of 20 years.
The victim testified that, on several occasions prior to the October 19 incident, defendant physically abused her. According to the victim, on her birthday in June 2008, she and defendant were at her parent's home in Pleasanton and she awoke to find defendant hitting her in the stomach. Defendant had the victim's cell phone which showed that she had received a ...