(Super. Ct. No. MF032367A)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant John Anthony III of kidnapping for the purpose of oral copulation and sodomy, forcible oral copulation and sodomy, carjacking, first degree robbery, one count of second degree robbery (involving a purse), and making criminal threats. The jury was unable to reach a verdict as to a count of sexual penetration with a foreign object (count 4) and another count of second degree robbery (count 6--involving a cell phone). On the prosecutor's motion, the trial court dismissed both of those counts in the interests of justice.*fn1 The jury also sustained enhancements to both sexual offenses that defendant had kidnapped the victim and substantially increased the risk of harm as a result of the movement. (Pen. Code, § 667.61, subd. (d)(2).)*fn2 The trial court found defendant had two prior serious felony convictions within the meaning of section 667, subdivision (d).
At issue on appeal is the manner in which the trial court fashioned defendant's sentence. The court imposed consecutive sentences of 75 years to life each for the two sexual offenses (§§ 667, subd. (e)(2)(A)(i), 667.61, subd. (a)) and consecutive sentences of 25 years to life for each of the remaining offenses (§ 667, subd. (e)(2)(A)(ii)), except for a concurrent sentence for the second degree robbery conviction involving the victim's purse at the outset of the carjacking. It also "dismissed" the kidnapping conviction (count 1) for "purpose[s] of sentencing" as "merged" in the kidnapping enhancements for the sexual offenses.*fn3 It granted conduct credits that were limited to 15 percent of defendant's presentence custody credits. (§ 2933.1.) In response to a request from appellate counsel, the trial court awarded an additional day of actual custody and filed an amended abstract of judgment in May 2011.
Defendant, in his original briefing and in a supplemental brief, raises three areas of concern. He argues the trial court should have stayed sentence on the carjacking conviction (§ 654) because it was an indivisible part of a kidnapping for the purpose of committing the sexual offenses. He also contends consecutive sentences for the sexual offenses were not mandatory because they did not occur on "separate occasions" within the meaning of either of the applicable statutes. (§§ 667, subd. (c)(6) & 667.61, subd. (i).) Finally, he asserts consecutive sentences for the carjacking and the criminal threats were not mandatory because they did not occur on separate occasions under section 667, subdivision (c)(6). We shall affirm the judgment as modified in accordance with footnote 3, ante.
FACTUAL AND PROCEDURAL BACKGROUND
The nature of defendant's appellate contentions requires only an outline of his course of criminal conduct, relying of course only on the facts in favor of the judgment. (People v. Mack (1992) 11 Cal.App.4th 1466, 1468.) We omit the remainder of the particulars.
After dropping off two of her daughters and their friends at a late movie in Manteca, the victim was sitting in her car at a gas station, talking on her cell phone. Defendant approached her car and asked to use the phone. When she demurred, he hit her and grabbed the phone. Putting a gun to her head, he then emptied her purse and commandeered the car, ordering her to move over to the passenger seat.
As he started to drive away with her, defendant repeatedly told the victim he was going to kill her. After driving for "a long time," with the victim's head pushed down into his lap, defendant stopped in what the victim thought was a dark and isolated grove. He directed her to get out of the car and disrobe.
He pulled her down to her knees by her hair. His pants were down, and he forced his penis into her mouth. When she complained that her mouth hurt because he had struck her, he directed her to remove the rest of her clothes. He pushed her face down onto the back seat of the car. He first penetrated her anus with his fingers, then sodomized her until he ejaculated. This was extremely painful for the victim.
Gun in hand, defendant told her to dress and get back into the car. As they drove along, he repeated his threats to kill her, assuring her that he was a bad man. At one point, he pulled over to the side of the road and warned her to be silent on pain of death. When deputies stopped to check why he was stopped, defendant kept his gun inside his T-shirt while they questioned defendant and the victim. Out of fear, she told the deputies everything was fine. The deputies left, at which point defendant resumed driving.
Her cell phone rang, and defendant allowed her to answer. In separate calls, the daughters she had dropped off in Manteca and another daughter in Stockton told her they were ready for her to pick them up. Defendant drove her back to the Manteca theater, where the two daughters and their friends got into the car. Defendant then drove the ...