California Court of Appeals, Fourth District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[As modified Mar. 26, 2014.]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN291820Daniel B. Goldstein, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P. J.
A jury convicted defendant and appellant Hugo Garcia of burglary (Pen. Code, § 459; counts 1 & 4); robbery (Pen. Code, § 211; count 2); kidnapping with intent to commit rape (Pen. Code, § 209, subd. (b)(1); count 3); forcible rape (Pen. Code, § 261, subd. (a)(2); count 5); rape by a foreign object (Pen. Code, § 289, subd. (a); count 6); unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 7); and attempted robbery (Pen. Code, §§ 664 & 211; counts 8 & 9). As to counts 2, 3, 8 and 9, the jury found true Garcia personally used a firearm during the commission of the offenses. (Pen. Code, § 12022.53, subd. (b).) As to counts 5 and 6, the jury also found true that Garcia kidnapped the victim with the movement substantially increasing the risk of harm to the victim (Pen. Code, § 667.61, subd. (d)(2)), committed the offenses during the commission of a burglary (Pen. Code, § 667.61, subd. (e)(2)), engaged in the tying or binding of the victim (Pen. Code, § 667.61, subd. (e)(5)) and personally used a firearm (Pen. Code, § 667.61, subd. (e)(3)). The court sentenced Garcia to prison for an aggregate term of 74 years four months to life.
On appeal, Garcia contends (1) the evidence is insufficient to support his conviction on counts 4, 8 and 9; (2) the court had a sua sponte duty to modify the jury instruction on count 6, forcible penetration by foreign object, to exclude a penis from the definition of a foreign or an unknown object; (3) the trial court erred in imposing consecutive sentences on counts 5 and 6 and in not staying under section 654, subdivision (a), his sentence on count 4, burglary with the requisite felonious intent to commit sexual assault; (4) the $10, 000 restitution imposed on him pursuant to section 1202.4, subdivision (b)(1) must be reversed because the facts on which it was based were not submitted to the jury for determination beyond a reasonable doubt; and finally (5) the abstract of judgment must be corrected to reflect accurately the oral pronouncement of judgment.
As we explain, we agree with Garcia's contention his sentence under count 4 should have been stayed. We also agree—as do the People—that his abstract of judgment must be corrected to state accurately the oral pronouncement of judgment and the modification of the judgment as discussed in this opinion. In all other respects, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND 
A. Offenses against M.
Victim M. in May 2011 was working at a store (store) located in Escondido, California providing services for low income families and women who are pregnant, breastfeeding or had just had a baby. M. saw a young man later identified as Garcia riding his bicycle slowly in front of, and looking into, the store. After G.C., a fellow employee of M., left for the day, the man entered the store, looked around and then smiled at M. and left. Shortly thereafter, the man reentered the store, went to the counter near where M. was standing and started asking M. what she described were "weird" questions about the store's voucher program. The man held a cell phone in one hand, and his other hand was inside his jacket pocket. M. became concerned by the man's behavior. M. used her cell phone to message G.C. that there was a man inside the store asking "weird" questions and that she was scared. G.C. called back on the store phone, but M. could not speak candidly with G.C. because the man was standing nearby. M. thus hung up the phone.
The man next asked M. about a jar of candies located on the counter. As M. was opening the jar to give the man some candy, he pulled a gun out of his jacket pocket, pointed it at M. and ordered her to hand over the money from the cash register. M. complied and told the man not to hurt her. M. put the money in a bag. While still pointing the gun at M., the man asked M. if she had any money. M. next pulled a few dollars from her pants pocket and also put it into the bag.
The man directed M. to close the front door of the store and followed behind her with the gun pointed at her back as she walked to the door. The man then made M. remove the "open" sign hanging by the door and turn off the store lights.
M. asked the man to leave. Instead, the man pointed the gun at M. as they began walking toward the back of the store. They stopped near some refrigerators, and he asked M. if she had the key to the office door, which was closed and locked. She said no. He then asked M. if the store had a bathroom. M. said yes, but she refused to go down the hallway into the bathroom, which was located behind the office in the very back of the store, out of sight from the main part of the store. M. next got on her knees and
begged the man not to harm her, telling him she had a daughter waiting for her at home. The man in response told M. to remove her clothes. M. again asked the man not to harm her, but he waved the gun back and forth at her, a gesture she understood to mean for her to go to the bathroom and take off her clothes. Scared, M. went into the bathroom and removed her pants and blouse.
The man entered the bathroom and, while still pointing the gun at M., demanded that she remove her underwear and bra. She complied. He next made M. turn and face him inside the bathroom. He left the bathroom and returned a short time later with some "hair bands" sold by the store that M. described as bands a little girl might put around her entire head to keep the hair out of her face. The man tried to use the hair bands to tie up M.'s hands but, because he was still holding the gun and kept it near M.'s chest area, she offered to tie up her own hands so he did not "accidently" shoot her. The man left the bathroom again and returned holding more hair bands. The man asked M. to tie up her feet but, because she was shaking, she could not do so and ended up breaking the bands. As she was attempting to tie up her feet, the man again left the bathroom.
When the man returned yet again to the bathroom, his fly was open and his erect penis was exposed. The man made M. turn around and face the mirror in the bathroom so that her back was to him. While still pointing the gun at M., he digitally penetrated, and then put his penis inside, her vagina. The man also touched her breasts and put his hands on the back of M's neck and pushed her head down. When M. began to cry, the man gestured for her to be quiet. After the sexual assault, M. felt "wet" in her vaginal area. She saw the man wipe himself with a paper towel or napkin and throw it away.
The man told M. to stay put. After he left the bathroom, M. struggled to get dressed. The man returned to the bathroom and then left. M. walked out of the bathroom, toward the main part of the store, where she saw the man opening and looking in some drawers. He ordered M. back into the bathroom and eventually closed the bathroom door with her inside. M. sat on the bathroom floor for a short while. When she could no longer hear anyone inside the store, M. came out of the bathroom and found the store empty. She walked outside, heard a car start and saw the man drive off in her white SUV. M. went to a nearby business for help. An employee of the business called police.
B. Offenses against S. & Y.
That same day, about 9:15 p.m., S. and Y. closed an Escondido check-cashing store (check-cashing store) where they were working, left through the
front door and headed towards the back parking lot. S. testified it was a "really slow day" and, thus, they closed the check-cashing store about 15 to 25 minutes earlier than normal.
As they walked to their cars, they saw a white SUV parked nearby and a man later identified as Garcia standing next to the SUV, with his back turned. As they continued walking toward their cars, the man turned around and began walking towards S. and Y. He then told them in broken English to stop and demanded they reopen the check-cashing store. S. and Y. pretended not to hear the man but, as they got closer and he repeated to them, "you got to stop, " they saw the man was holding a gun. The man was waving the gun in the direction of the door of the check-cashing store, telling them to open the door and not be "stupid."
S. and Y. started walking backwards as the man continued to walk towards them, gesturing with the gun and demanding they open the check-cashing store. As S. and Y. got closer to a nearby gas station, the light from the station illuminated the man's face. S. and Y. then turned, ran to the gas station and called police. The man drove off in the white SUV. They gave police a description of the man and his vehicle. As discussed post, they went to the police station a short time later, after the man had been apprehended, and identified Garcia as the man that had pointed the gun at them.
Law enforcement arrested Garcia in Escondido about 9:30 p.m. that same night as he stood in front of the white SUV while it was parked in front of a laundromat, which was located near the check-cashing store. Law enforcement found a.22-caliber revolver in Garcia's front pocket. There were four bullets in the gun's chamber, ...