APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel, Judge. (Super. Ct. No. SCD228173)
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part, reversed in part; judgment modified.
Defendant Ramon Flugencio Gonzalez appeals from a judgment of conviction after a jury convicted him of multiple sexual offenses against a single victim. On appeal, Gonzalez argues (1) that the trial court abused its discretion in allowing Juror No. 6 to remain on the jury after the juror indicated that, based on a photograph contained in one of the prosecution's exhibits, he believed that the victim was the grandmother of a friend of his, and that he would not be able to remain impartial; (2) that his convictions on counts 1 and 2 for unlawful oral copulation cannot both stand, because he committed only one act of unlawful copulation that constituted a single violation of Penal Code*fn1 section 288a; and (3) that his sentences for two counts of sexual battery must be stayed pursuant to section 654 because they were part of the same course of conduct for which Gonzalez was already punished as a result of his conviction for assault with the intent to penetrate.
With respect to Gonzalez's first contention, based on information provided by the prosecutor, the trial court informed the juror that the juror was likely mistaken about knowing the victim's granddaughter and told the juror that the court would revisit the issue if it turned out that the court and the prosecutor were wrong about that. The issue was never raised again. Under these circumstances, we conclude that there was no demonstrable reality that the juror was unable to perform his proper function, and that the court therefore did not abuse its discretion in allowing the juror to remain on the jury.
We agree with Gonzalez's contention that he may be convicted of only one violation of section 288a (unlawful oral copulation) based on the single instance of oral copulation in which he engaged. We therefore consolidate his convictions on counts 1 and 2 into a single conviction, and vacate the conviction and sentence on count 2.
Finally, we conclude that Gonzalez's sentence on count 5 must be stayed because it is based on the same conduct for which he was convicted and sentenced on count 3, the assault count.
FACTUAL AND PROCEDURAL BACKGROUND
On June 25, 2010, Gonzalez was sitting next to Carolyn H. on a street in downtown San Diego near the intersection of 16th Street and Island Avenue. A friend of Carolyn's, Keith Jennings, was nearby and saw Gonzalez and Carolyn sitting together. Jennings and Carolyn were both homeless and congregated in the same areas. Jennings initially saw Gonzalez and Carolyn talking and laughing. He also saw Carolyn give Gonzalez a peck on the cheek. Jennings's impression was that this was done in a joking manner. When Jennings next looked over, Carolyn was lying down, and her face was in Gonzalez's lap. Carolyn's body appeared limp and she was not responsive.
Carolyn's pants were unzipped and pulled down such that Jennings could see half of her buttocks. Gonzalez's left hand was down Carolyn's pants, and he was "manipulating her genitalia." Jennings left for a few minutes to use the bathroom. When he returned, he saw Gonzalez moving Carolyn's head up and down on his lap. It appeared to Jennings that Gonzalez was attempting to make Carolyn perform oral sex on Gonzalez.
Two other men, Donald Goddard and Axcanyata "West" Laskey, who were friends of Carolyn, were also observing what was happening. They saw Gonzalez holding Carolyn's head and "bobbing it up and down" on his penis. Carolyn appeared to be passed out while this was happening. When Goddard and Laskey attempted to intervene and told Gonzalez to stop what he was doing, Gonzalez swung his cane at them and told them that it was "none of [their] fucking business."
Before the two men could stop what was going on, the police arrived. Two women had flagged down San Diego Police Officer Victor Calderson to report what was happening to Carolyn. Officer Calderson arrived at the scene and walked up behind Gonzalez. As Calderson looked over Gonzalez's shoulder, Calderson could see that Gonzalez's penis was in Carolyn's mouth. Calderson could also see that Gonzalez had his left hand inside of Carolyn's pants and that he was fondling her genitalia. When Calderson asked Gonzalez what he was doing, Gonzalez jumped and tried to put his penis back in his pants. When Gonzalez jumped up, Carolyn, who was unconscious, fell over and hit the concrete. Carolyn's eyes were rolled back in her head and she appeared pale. Officer Calderson handcuffed Gonzalez and placed him in the back of a police car.
Laskey shook Carolyn, but she did not respond. She appeared to be "totally passed out."
When Calderson returned to check on Carolyn, he noticed that she did not appear to be breathing. Calderson and some others who were nearby rolled Carolyn over, and she took a breath. Paramedics then arrived and took Carolyn to the hospital.
Carolyn testified that on the day of the incident, she was homeless. She had gotten into an argument with her boyfriend earlier that day and drank a pint of vodka. According to Carolyn, she lay down on Island Avenue to try to sleep. The next thing she remembered was being put in an ambulance. Carolyn testified that she had never seen Gonzalez before, and that she had not consented to any sexual activity with him.*fn2
DNA tests confirmed that Gonzalez's semen was in Carolyn's mouth.
On January 6, 2011, a jury convicted Gonzalez of one count of oral copulation of an unconscious person (§ 288a, subd. (f); count 1); one count of oral copulation of an intoxicated person (§ 288a, subd. (i); count 2); one count of assault with intent to commit sexual penetration (§ 220, subd. (a); count 3), and two counts of sexual battery (§ 243.4, subd. (e)(1); counts 4 and 5).
The trial court sentenced Gonzalez to the low term of three years on count 1, and imposed but stayed the low term sentence of three years on count 2, pursuant to section 654. On count 3, the court imposed the low term of two years, to run concurrently with the sentence on count 1. The court sentenced Gonzalez to 180 days, with credit for time served, on counts 4 and 5.
Gonzalez filed a timely notice of appeal on May 9, 2011.
A. The trial court did not abuse its discretion in allowing Juror No. 6 to remain on the jury
Gonzalez contends that the trial court erred in failing to excuse Juror No. 6 on the ground that the juror was biased. According to Gonzalez, Juror No. 6 developed a bias against the defense based on one of the photographs of the victim, and the trial court's limited inquiry into the matter did not dispel the likelihood that the juror carried this bias into the jury's deliberations. Our review of the record discloses that Gonzalez's contention is without merit.
At the close of the People's case, but before the defense called a witness, Juror No. 6 informed the court, "I don't think I can stay fair and unbiased. I recently came to the realization that People's exhibit B seemed vaguely familiar to me, and during the recess, I just placed where I had seen it." The court asked the juror to remain where he was and listen to the testimony of the ...