PEOPLE v. JONES (1999)

INTRODUCTION

Gregory Tommie Jones appeals from the judgment entered following his convictions by jury of forcible rape (Pen.Code, § 261, subd. (a)(2)),¹ three counts of forcible sodomy (§ 286, subd. (c)), and one count of forcible oral copulation (§ 288a, subd. (c)), with findings as to each offense (§ 667.61, subds.(a), (c)) that Jones committed aggravated kidnapping (§ 667.61, subd. (d)(2)), kidnapping (§ 667.61, subd. (e)(1)), and personally used a deadly weapon (§§ 667.61, subds.(e)(4), 12022.3, subd. (a)).  Jones was sentenced to prison for 105 years to life, including three consecutive 25-years-to-life terms.

Section 667.61, subdivision (a), of the One Strike Law mandates that a term of 25 years to life be imposed for specified sexual crimes committed in specific aggravating circumstances.   Section 667.61, subdivision (g), mandates that that term be imposed on a defendant “once for any offense or offenses committed against a single victim during a single occasion.”   The issue we address in the published portion of this opinion relates to how we interpret the phrase “single occasion.”   In doing so, we rely on the language of section 667.6, subdivision (d), (which mandates consecutive sentences for specified sexual crimes), and hold that when sexual crimes involve the same victim on “separate occasions” within the meaning of section 667.6, subdivision (d), then it is also true that each such crime has been committed against a single victim during a different “single occasion” within the meaning of section 667.61, subdivision (g).

Accordingly, in the published portion of the discussion of this opinion, we hold that the trial court properly sentenced Jones to prison for three consecutive terms of 25 years to life for forcible rape, forcible sodomy, and forcible oral copulation (counts one, two, and five, respectively) pursuant to sections 667.61, subdivision (g), and 667.6, subdivision (d).²

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established that at about 8:30 p.m. on July 23, 1996, Carolyn F., whose speech and hearing were impaired, began walking home from a friend's house located near Century and Vermont.   She was under the influence of alcohol and narcotics.   After she approached an alley, Jones, a neighborhood beggar, forced her into a filthy garage.

Jones opened the driver's door of a car and forced Carolyn F. into the back seat.   Jones was “sitting on this side.”   Jones was sitting as he removed his pants;  he was not wearing underwear.   Jones took his clothes off.   While Jones was choking and hitting Carolyn F., both of them removed her clothes.

Jones pulled on the back of Carolyn F.'s hair and, while hitting her head, put his penis in her mouth.  (Count five;  forcible oral copulation.)   She tried to get away, but Jones kept hitting her.   At one point, Jones slapped her and told her to “do it deeper.”   Jones pushed Carolyn F.'s head “hard on it, deeper.”   She testified that Jones had his penis in her mouth “like 30 minutes, or something,” a “really long time.”

Jones subsequently caused Carolyn F. to recline on the seat with her legs up to her shoulders.   Jones, who was hitting her and had his hands on her throat, put his penis in her vagina.  (Count one;  forcible rape.)   Jones then pulled Carolyn F.'s legs up as high as he could, near her head, and put his penis in her anus three times.  (Counts two through four;  three counts of forcible sodomy.)   The three anal penetrations occurred over a period of about an hour.   During the period from the time Carolyn F. orally copulated Jones until the time “he had done the anal penetration,” Jones's penis was erect.   She guessed that the period was about an hour and a half.

Jones later got out of the car.   Carolyn F. reached for her clothing, but Jones pulled it away and pushed her back in the car.   Jones subsequently reached into a slit in the car roof and retrieved a knife.   Jones put the knife to her face.   Shortly thereafter, Jones left.³

2. Defense Evidence.

In defense, Matthew Wilson, a trauma surgeon, reviewed medical records of an injury Jones suffered on July 4, 1996.   The records indicated Jones suffered a fractured right thumb.   According to Wilson, the injury would have taken about six weeks to heal, and a person with this injury would not have been able to sustain a grabbing or choking motion.   Wilson also reviewed photographic slides of Carolyn F.'s anal examination.   Wilson concluded there was no evidence of tears or lacerations.

Ronald Miller, a gynecologist and obstetrician, reviewed slides of Carolyn F.'s vaginal examination.   Miller opined that Carolyn F.'s vaginal area appeared to be normal, and there appeared to be no tears or lacerations.   Miller also opined that the absence of injury did not rule out nonconsensual sex, but did rule out visible injury.

CONTENTIONS ** 

DISCUSSION

7. The Court Properly Imposed Consecutive Terms Of 25 Years To Life On Each Of Counts One, Two, And Five Pursuant To The One Strike Law And Section 667.6, Subdivision (d).

Jones contends “the trial court erroneously imposed consecutive life terms on counts two and five contrary to the clear statutory language of section 667.61, subdivision (g) and therefore remand for resentencing is required.”   Jones does not dispute his prison sentence of 25 years to life on count one (forcible rape) pursuant to the One Strike Law, but claims the trial court erred by imposing such a sentence on each of counts two and five (forcible sodomy and forcible oral copulation), and by imposing consecutive sentences as to each of the three counts.   We reject the contention.

By way of overview, section 667.61, part of the One Strike Law, mandates certain indeterminate life sentences for specified sexual crimes committed in specific aggravating circumstances.   Section 667.6, subdivision (d), mandates consecutive sentencing for specified sexual crimes.   In our discussion below, we conclude that when sexual crimes involve the same victim on “separate occasions” within the meaning of section 667.6, subdivision (d), then it is also true that each such crime has been committed against a single victim during a different “single occasion” within the meaning of section 667.61, subdivision (g).   In such a circumstance, a One Strike Law sentence must be imposed for each crime.

As a result, we hold that counts one, two, and five in the present case involved the same victim on “separate occasions” within the meaning of section 667.6, subdivision (d);  each crime was committed against a single victim during a different “single occasion” within the meaning of section 667.61, subdivision (g);  and the trial court properly sentenced Jones to prison for 25 years to life on counts two and five.   We also hold the trial court properly imposed consecutive sentences as to counts one, two, and five pursuant to section 667.6, subdivision (d).

a. Pertinent Proceedings.

After the trial court sentenced Jones on the section 12022.3, subdivision (a), allegations, it indicated that it would impose sentence as to counts one through five.   It found there were aggravating factors ¹⁵ but no mitigating factors, and stated it would incorporate the aggravating factors in each of its sentencing decisions.

The trial court stated, “[f]irst, the court has to consider 667.6(d), to determine whether concurrent or consecutive sentencing should be imposed.   [¶] And the question the court has to ask is whether each crime occurred on a separate occasion with the same victim.  [¶] As I said earlier, these events occurred over about a two-hour period of time, in the car, in the garage, in the alley.  [¶] The question the court has to ask is between the commission of one sex crime and the next, did the defendant have a reasonable opportunity to reflect on his actions, and then resume sexually assaultive behavior.   Is one sex act really incidental to the next.”

It then concluded, “[b]ased upon the factual findings the court has previously enumerated, the court believes that these are three distinct and separate violations of [Carolyn F.]. [¶] First, she was forced to orally copulate the defendant.   When that was concluded, there was a forcible rape.   And when that was concluded, there was a forcible sodomy, where entry was made at least three times.  [¶] So the court is incorporating those findings under 667.6(d), and finding that each sex crime enumerated, that is, the oral copulation, the rape, and the sodomy, occurred on a separate occasion with the same victim.”

The trial court imposed sentence on counts one, two, and five pursuant to section 667.61, subdivisions (a), (c), and (d)(2).   The court also imposed full, separate, and consecutive terms on those counts pursuant to section 667.6, subdivision (d).   Accordingly, Jones was sentenced, on each of counts one, two, and five, to a consecutive term of 25 years to life, plus a 10-year upper term pursuant to section 12022.3, subdivision (a).   Sentence was imposed on counts three and four pursuant to section 1170.1.¹⁶  As to each of counts three and four, Jones was sentenced to a concurrent eight-year upper term;  a 10-year upper term for the section 12022.3, subdivision (a), enhancement was stayed.

b. Satisfaction Of The “Separate Occasions” Standard of Section 667.6, Subdivision (d), Also Satisfies The “Single Occasion” Standard of Section 667.61, Subdivision (g).

Effective November 30, 1994, section 667.61 was added as part of what is commonly known as the One Strike Law ¹⁷ and, in relevant part, the section read the same as it did in 1996, that is, at the time of the present offenses.   In general, that law requires imposition of an indeterminate life term (as relevant to the present case, 25 years to life [section 667.61, subdivision (a) ] ), for specified sexual offenses committed under specific aggravating circumstances.  (People v. Jones (1997) 58 Cal.App.4th 693, 703, 68 Cal.Rptr.2d 506.)

Section 667.61, subdivision (g), provides, in relevant part, that “[t]he term specified in subdivision (a) ․ shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.”  (Italics added.)   Thus, if counts one, two, and five each occurred during a different “single occasion,” it would appear that section 667.61 requires an imposition of the specified term as to each count.   However, that section does not specify whether those terms are to be served concurrently or consecutively.

Moreover, section 667.61 does not expressly define the term “single occasion,” and its meaning is not plain;  we must therefore construe it.  “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]  In order to determine this intent, we begin by examining the language of the statute.   [Citations.]  But “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.”   [Citations.]  Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.”  [Citation.]  Finally, we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.”   [Citation.]’ ”  (People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

 “The Legislature ‘is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted ․ a statute in light thereof.’ ”  (People v. McGuire (1993) 14 Cal.App.4th 687, 694, 18 Cal.Rptr.2d 12.)   Accordingly, when legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature intended the same construction, unless a contrary intent clearly appears.  (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 35 Cal.Rptr.2d 155.)   These principles require that, in construing section 667.61, subdivision (g), we also examine section 667.6, subdivision (d), as well as its history and construction.

Section 667.61 was enacted after section 667.6, subdivision (d).  Section 667.6, subdivision (d), enacted in 1979, provided for mandatory consecutive sentencing for specified sexual offenses.¹⁸  In relevant part, it required imposition of a full, separate, and consecutive term for specified sexual crimes if they involved “the same victim on separate occasions.”  (Italics added.)

In 1986, that section was amended by the insertion of a second paragraph ¹⁹ which stated, in relevant part, that “[i]n 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.”  (Italics added.)   Although subdivision (d), underwent further amendment, both the second paragraph inserted in 1986, as well as the “ same victim on separate occasions” language, remained unchanged and were “ already in existence” (People v. McGuire, supra, 14 Cal.App.4th at p. 694, 18 Cal.Rptr.2d 12) when, in 1994, section 667.61 became effective.

 Section 667.61, and section 667.6, subdivision (d), both pertain to sentencing, and relate to sexual offenses only.   Six of the eight sexual offenses specified in section 667.61 when it was enacted were also, at that time, specified in section 667.6, subdivision (d).²⁰  In addition, section 667.61, subdivision (g), expressly refers to section 667.6.   As the court in People v. Jackson (1998) 66 Cal.App.4th 182, 77 Cal.Rptr.2d 564, observed, “․ this reference reflects the Legislature's awareness of the combined effect of these two provisions on the length of sentences.  [Fn. omitted.]”  (Id. at p. 193, 77 Cal.Rptr.2d 564.)

Judicial decisions determining the applicability of the “same occasions” language of section 667.6, subdivision (d), preexisted the enactment of section 667.61, and the latter section used “substantially similar language” (In re Jerry R., supra, 29 Cal.App.4th at p. 1437, 35 Cal.Rptr.2d 155), that is, the phrase “single occasion.”   Even before section 667.61 was enacted, judicial decisions had applied the “reasonable opportunity to reflect” test of section 667.6, subdivision (d), to decide whether sexual crimes involved the same victim on “separate occasions” within the meaning of that section, reaching varying results.  (See, e.g., People v. Pena (1992) 7 Cal.App.4th 1294, 1313-1316, 9 Cal.Rptr.2d 550 [sexual offenses not committed on “separate occasions”];  People v. Corona (1988) 206 Cal.App.3d 13, 16-18, 253 Cal.Rptr. 327 [certain sexual offenses committed on “separate occasions”;  others not].)

Lastly, section 667.61 and section 667.6, subdivision (d), interrelate and overlap.   Section 667.61 can apply when a defendant commits a single specified sexual offense, or multiple specified sexual offenses. (§ 667.61, subd. (c).)  On the other hand, section 667.6 subdivision (d), applies only when a defendant commits multiple specified sexual offenses.  (People v. Jones (1988) 46 Cal.3d 585, 595, 250 Cal.Rptr. 635, 758 P.2d 1165.)   Thus, if a defendant commits a single sexual offense specified in sections 667.61 and 667.6, subdivision (d), the former section could apply but the latter section would not.   On the other hand, if the defendant committed multiple sexual offenses specified in sections 667.61 and 667.6, subdivision (d), both sections could apply.

 Based on the foregoing, we conclude that when crimes involve the same victim on “separate occasions” within the meaning of section 667.6, subdivision (d), then each such crime also has been committed against a single victim during a different “single occasion” within the meaning of section 667.61, subdivision (g).  (Cf. People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  In re Jerry R., supra, 29 Cal.App.4th at p. 1437, 35 Cal.Rptr.2d 155;  People v. McGuire, supra, 14 Cal.App.4th at p. 694, 18 Cal.Rptr.2d 12.) ²¹

c. Since Each Crime Was Committed Against A Single Victim On A Different “Single Occasion” For Purposes Of The One Strike Law, The Court Properly Imposed Terms Of 25 Years To Life On Counts Two And Five.

(1) Counts One, Two, and Five Were Each Committed On A Different “Single Occasion” For Purposes Of The One Strike Law.

 In this case, the offenses at issue occurred in the following sequence:  forcible oral copulation (count five), forcible rape (count one), and forcible sodomy (count two).   The court imposed a 25-years-to-life term as to each of these counts;  Jones contends this was error as to counts five and two.

We turn to pertinent section 667.6, subdivision (d), case law.   In People v. Plaza (1995) 41 Cal.App.4th 377, 48 Cal.Rptr.2d 710, in relevant part, the defendant forcibly caused a woman to orally copulate him in a bathroom (count one).   The defendant then took her to a bedroom, where he pushed her onto a bed and forcibly penetrated her vagina with a foreign object, i.e., his fingers (count four).   The defendant later withdrew his fingers but continued to restrain the victim while he listened to messages on an answering machine.   The defendant subsequently forced the victim to orally copulate him (count two).   Afterwards, the defendant withdrew his penis and, remaining on top of the victim, slid his body down.   He then repeatedly slapped the victim's face, and verbally abused her, for several minutes.   The defendant then kicked the victim's legs apart, and raped her (count three).   The defendant subsequently placed the victim on top of him and raped her again.   The defendant later withdrew his penis, pushed the victim down, and forced her to orally copulate him.   After answering the telephone several times, the defendant again forced the victim to orally copulate him (count seven).  (People v. Plaza, supra, 41 Cal.App.4th at pp. 380-381, 384-385, 48 Cal.Rptr.2d 710.)

The defendant was convicted on counts one, two, three, four, and seven.   The court sentenced the defendant to prison for 30 years, i.e., 6 years on each count, pursuant to section 667.6, subdivision (d).   On appeal, the defendant contended the sentence was erroneous.  (People v. Plaza, supra, 41 Cal.App.4th at p. 382, 48 Cal.Rptr.2d 710.)  Plaza upheld the sentences, concluding that there was sufficient evidence that, as to each crime, the defendant had a “reasonable opportunity to reflect,” but nevertheless resumed sexually assaultive behavior.  (Id. at pp. 382-385, 48 Cal.Rptr.2d 710.)

In People v. Irvin (1996) 43 Cal.App.4th 1063, 51 Cal.Rptr.2d 127, the defendant contended he was erroneously sentenced pursuant to section 667.6, subdivision (d), on his multiple sexual crimes.  Irvin concluded that the trial court's sentencing explanation was inadequate, and that it was not likely that each sexual crime was committed on a “separate occasion.”   The case was remanded for resentencing.  (Id. at pp. 1067-1072, 51 Cal.Rptr.2d 127.)   After discussing three cases,²² Irvin rejected any suggestion from those cases that “a finding of ‘separate occasions' requires a change of location or an obvious break in a perpetrator's behavior, ․” (Id. at p. 1070, 51 Cal.Rptr.2d 127.)

Irvin then observed, “[s]ubdivision (d) provides otherwise.   What the trial court must decide is whether ‘the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.’   A violent sexual assault cannot and should not be considered in the same light as sexual acts shared between willing participants.   Consensual sex may include times when the participants go back and forth between varied sex acts, which they consider to be one sexual encounter.”  (Id. at pp. 1070-1071, 51 Cal.Rptr.2d 127.)

Irvin continued, “[b]y contrast, a forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter.   Such a sexual assault consisting of multiple types of sex acts committed against the victim is not motivated by sexual pleasure.   Instead, it is frequently intended to degrade the victim.   Sexual acts, such as those committed by defendant, are the antithesis of a consensual sexual encounter and should not be viewed the same way.   Therefore, at sentencing a trial court could find a defendant had a ‘reasonable opportunity to reflect upon his or her actions' even though the parties never changed physical locations and the parties ‘merely’ changed positions.”  (Id. at p. 1071, 51 Cal.Rptr.2d 127.)

In the present case, there was substantial evidence that each of Jones's crimes were committed as part of a degrading encounter lasting almost two hours in a filthy garage.   Moreover, Jones forced Carolyn F. to orally copulate him (count five) while he was sitting in the back seat of the car.   Afterwards, there was an interval.   During that interval, the entire bodies of Jones and Carolyn F. changed positions.   Jones forced her onto her back, and her legs “were up as far as they could go.”   Jones changed his previous sitting position.   The changes of the body positions facilitated the commission of a subsequent sex act.   That subsequent sex act was the rape of Carolyn F. (count one).   And that sex act was different than the previous one, i.e., forcible oral copulation.

Similarly, as to the forcible rape (count one) and forcible sodomy (count two), there was substantial evidence that, after the rape, there was an interval.   During that interval, Jones pulled Carolyn F.'s legs up “as high as he could,” changing her body position.   The change facilitated the commission of a subsequent sex act.   That subsequent sex act was the sodomy.  (Count two.)   And that sex act was different from the previous one, i.e., the rape.

Accordingly, the offenses in counts five, one, and two were committed on “separate occasions” for purposes of section 667.6, subdivision (d).  (Cf. People v. Plaza, supra, 41 Cal.App.4th at pp. 382-385, 48 Cal.Rptr.2d 710;  see People v. Irvin, supra, 43 Cal.App.4th at pp. 1070-1071, 51 Cal.Rptr.2d 127;  section 667.6, subd. (d).)  Therefore, in light of our discussion in part 7.b., ante, we hold that the forcible oral copulation (count five), forcible rape (count one), and forcible sodomy (count two) of Carolyn F. were each committed on a different “single occasion” for purposes of section 667.61, subdivision (g), and the court properly sentenced Jones to prison for 25 years to life on counts five and two.  (Cf. People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  In re Jerry R., supra, 29 Cal.App.4th at p. 1437, 35 Cal.Rptr.2d 155;  People v. McGuire, supra, 14 Cal.App.4th at p. 694, 18 Cal.Rptr.2d 12.) ²³

(2) Jones's Arguments Do Not Compel A Contrary Conclusion.

Jones, relying on People v. Hammon (1987) 191 Cal.App.3d 1084, 236 Cal.Rptr. 822, People v. Corona, supra, and People v. Pena, supra, urges his sentence was erroneous.   Jones's reliance on those cases is misplaced.²⁴

(a) People v. Hammon.

In Hammon, in pertinent part, the defendant committed multiple identical sexual acts, i.e., he caused an infant to orally copulate him twice (counts five and four).   The acts were distinguishable only by a change in the defendant's position.   He later orally copulated the infant twice (counts nine and seven).  (People v. Hammon, supra, 191 Cal.App.3d at pp. 1091, 1100-1101, 236 Cal.Rptr. 822.)   As a result, the defendant was convicted and sentenced on four counts of violating section 288, subdivision (a).  (Id. at p. 1088, 236 Cal.Rptr. 822.)

The defendant in Hammon contended his sentence on those counts violated section 654's multiple punishment ban.  (Id. at p. 1090, 236 Cal.Rptr. 822.)   Nonetheless, the appellate court in Hammon used the “reasonable opportunity to reflect” language of section 667.6, subdivision (d), as one of four factors to decide that the defendant therein suffered impermissible multiple convictions.  (Id. at pp. 1096-1099, 236 Cal.Rptr. 822.)  Hammon reversed the convictions on counts four and seven, but affirmed the convictions on counts five and nine.  (Id. at pp. 1089, 1100-1101, 236 Cal.Rptr. 822.)   However, in People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078, the Supreme Court rejected a defendant's contention that he suffered impermissible multiple convictions for multiple identical sexual acts.²⁵  (People v. Harrison, supra, at pp. 327-334, 256 Cal.Rptr. 401, 768 P.2d 1078.)   In doing so, Harrison disapproved Hammon's four-fold test, and Hammon's use of the “reasonable opportunity to reflect” language as one of that test's four factors.  (Id. at pp. 332-334, 256 Cal.Rptr. 401, 768 P.2d 1078.)

There are several reasons why Hammon is of no help to Jones.   First, Hammon involved the issue of impermissible multiple convictions based on multiple identical sexual acts, and did not involve consecutive sentencing pursuant to section 667.6, subdivision (d).   Second, and more importantly, Harrison disapproved Hammon's analysis of Hammon's multiple conviction issue.  Harrison, therefore, eviscerates Jones's argument to the extent he relies on Hammon 's holding concerning its multiple conviction issue to support his argument that the crimes at issue in the present case were not committed on “separate occasions” for purposes of section 667.6, subdivision (d).   Finally, in Hammon, as to counts five and four, there was no intervening assault between the sexual crimes, and the only thing that occurred during the interval between the sexual crimes was a change in the position of all or part of only the defendant's body.   This change simply facilitated the commission of a sexual act identical to the previous one.   That was equally true as to counts nine and seven in Hammon.   It is not true as to counts one, two, and five in the present case.

(b) People v. Corona.

In People v. Corona, supra, in pertinent part, the defendant drove the victim in a car to a location, penetrated her vagina with his finger, “then” forcibly orally copulated her, and “then” raped her.  (People v. Corona, supra, 206 Cal.App.3d at p. 15, 253 Cal.Rptr. 327.)   The defendant left the victim in the car for about five minutes, returned, and raped her.   The trial court consecutively sentenced the defendant on each sexual offense pursuant to section 667.6, subdivision (d).   On appeal, the defendant contended the sentence was erroneous;  as to the sentences for the first two crimes, the Attorney General conceded the issue.  (Id. at pp. 16, 18, 253 Cal.Rptr. 327.)

Corona, accepting the Attorney General's concession, concluded that the sentences pursuant to section 667.6, subdivision (d), for the first two crimes were improper.  (People v. Corona, supra, 206 Cal.App.3d at p. 18, 253 Cal.Rptr. 327.)  Corona upheld the sentences for the rapes.  Corona did not discuss the issue of any changes in the positions of the defendant and victim between the first, second, or third crimes, or the different nature of those sexual crimes.

We reject Jones's reliance on Corona 's conclusion that the sentence of the defendant in Corona was erroneous as to that defendant's first two crimes.   In Corona, unlike the present case, the Attorney General conceded the sentencing error.   Moreover, Corona did not expressly discuss factors which we have concluded control the present case, including changes in body positions;  such changes which facilitated a transition from one sexual crime to another;  and whether the sexual couplings of the crimes involved different part(s) of the bodies of the defendant and/or victim.

(c) People v. Pena.

In Pena, supra, in pertinent part, the defendant raped his victim on a bed, got off of her, twisted her by the legs violently, and orally copulated her.   (People v. Pena, supra, 7 Cal.App.4th at p. 1299, 9 Cal.Rptr.2d 550.)   The trial court found the defendant committed the sexual offenses on “ separate occasions” and sentenced him thereon pursuant to section 667.6, subdivision (d).   On appeal, the defendant contended the sentence was erroneous;  the People contended the defendant had a “reasonable opportunity to reflect” when he got off of the victim and twisted her body violently.  (Id. at p. 1314, 9 Cal.Rptr.2d 550.)  Pena concluded the sentences pursuant to section 667.6, subdivision (d), were erroneous.  (Id. at p. 1316, 9 Cal.Rptr.2d 550.)

With respect to whether section 667.6, subdivision (d), applied, Pena discussed only two cases dealing with that section in its present form, Corona, and then Hammon.  (People v. Pena, supra, 7 Cal.App.4th at pp. 1314-1316, 9 Cal.Rptr.2d 550.)  Pena stated, “[w]hile there is admittedly little authority upon which to decide this issue,” Corona and Hammon “strongly suggest” that, for purposes of section 667.6, subdivision (d), the defendant in Pena did not have a “reasonable opportunity to reflect” between the commission of his sexual offenses.  (Id. at p. 1316, 9 Cal.Rptr.2d 550.)

Pena first reasoned that its case was “strongly analogous” to Corona.  (People v. Pena, supra, 7 Cal.App.4th at p. 1316, 9 Cal.Rptr.2d 550.)   The Pena court stated, “[a]s was the case in [Corona ], nothing in the record before this court indicates any appreciable interval ‘between’ the rape and oral copulation.   After the rape, appellant simply flipped the victim over and orally copulated her.   The assault here was also continuous.   Appellant simply did not cease his sexually assaultive behavior, and, therefore, could not have ‘resumed’ sexually assaultive behavior.”  (Ibid.)

Pena later turned to Hammon and reasoned that it was irrelevant that the defendant in Pena had to change positions in order to orally copulate his victim.  Pena stated, “[t]he holding in Hammon strongly suggests a change in positions, alone, is insufficient to provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially where the change is accomplished within a matter of seconds.”  (People v. Pena, supra, 7 Cal.App.4th at p. 1316, 9 Cal.Rptr.2d 550.)   We believe Pena's reliance on Corona and Hammon is unjustified.   More importantly, its reasoning and holding concerning section 667.6, subdivision (d), are simply wrong.

As noted, in Corona, the Attorney General conceded sentencing error.   In Pena, the Attorney General did not, and instead urged that the defendant had a “reasonable opportunity to reflect.”  (People v. Pena, supra, 7 Cal.App.4th at p. 1314, 9 Cal.Rptr.2d 550.)   Moreover, Corona failed to expressly discuss factors concerning changes in body positions;  criminal intervening activity facilitating a defendant's transition from one sexual crime to another;  and whether the sexual couplings of the crimes involved different parts of the bodies of the assailant and/or victim.   We believe those factors should have caused the court in Pena to hold that the sexual crimes involved were committed on “separate occasions” within the meaning of section 667.6, subdivision (d).

Pena's reliance on Hammon was inapposite because that case did not involve the issue raised in Pena, that is, the propriety of the imposition of consecutive sentences pursuant to section 667.6, subdivision (d).   But more crucially, even though Pena relied on Hammon's analysis of Hammon's multiple conviction issue, Pena failed to cite People v. Harrison, supra, which expressly disapproved Hammon to the extent it was inconsistent with Harrison, and which rejected as erroneous the very analysis in Hammon upon which Pena relied.

Finally, Pena, in concluding section 667.6, subdivision (d), did not apply, observed that “[t]he assault here was also continuous.   Appellant simply did not cease his sexually assaultive behavior, ․” In our view, Pena mischaracterized the sexually assaultive behavior involved in that case.

The phrase “nevertheless resumed sexually assaultive behavior” in section 667.6, subdivision (d) (italics added), implies a previous cessation of sexually assaultive behavior.   That is, the phrase anticipates multiple sexually assaultive behaviors;  in other words, it refers to sexually assaultive behavior that ceases, and sexually assaultive behavior that later resumes.   The quoted language is part of a statutory test for determining whether, “between the commission of one sex crime and another,” i.e., between multiple sexual crimes, the defendant had a reasonable opportunity to reflect.   Simply put, we view the phrase “sexually assaultive behavior” as referring to a sexual crime specified in section 667.6, subdivision (d), and the “reasonable opportunity to reflect” language as providing a test for determining whether multiple sexual crimes, that is, multiple sexually assaultive behaviors, were committed against a single victim on separate occasions.

Thus, when the crime of rape was completed in Pena, that sexually assaultive behavior ceased, and the sexually assaultive behavior of forcible oral copulation later began.  Pena's analysis rewards greater criminality.   If sexual crimes which otherwise qualified for consecutive sentencing pursuant to section 667.6, subdivision (d), had an interval of inactivity between them, Pena would compel the conclusion that they would not have qualified for consecutive sentencing if, instead, the defendant had filled the interval with the commission of one or more other criminal assaults or brutal sexual crimes.   We must construe our penal statutes to avoid such absurd results.  (People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

d. Imposition Of Consecutive Sentences On Counts One, Two, And Five Was Mandatory Under Section 667.6, Subdivision (d).

 In the present case, indeterminate life sentences were imposed pursuant to the One Strike Law as to counts one, two, and five.   We already have relied on section 667.6, subdivision (d), to conclude that counts one, two, and five were committed on “separate occasions” for purposes of that section and, therefore, that each count was committed on a different “single occasion” for purposes of section 667.61.   We thus must conclude that the mandatory consecutive sentencing provisions of section 667.6, subdivision (d), are properly applied to those counts.  (Cf. People v. Jackson, supra, 66 Cal.App.4th at pp. 190-194, 77 Cal.Rptr.2d 564 [mandatory consecutive sentencing scheme of section 667.6, subd. (d), applies to sentences imposed pursuant to the One Strikes Law where crimes involved multiple victims].)

8. Jones's Sentence Was Neither Cruel Nor Unusual Punishment.***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   In the unpublished portion of this opinion, we hold there was sufficient evidence that Jones used a deadly weapon “in the commission” of his offenses for purposes of the section 12022.3, subdivision (a), and section 667.61, subdivision (e)(4), allegations;  no prejudicial error occurred when the court, using what it referred to as a modified “CALJIC No. 17.19.1,” instructed on the meaning of the phrase “in the commission” for purposes of section 12022.3, subdivision (a);  and the court did not reversibly err by instructing the jury as to each count using special instruction “AA” pertaining to weapon use and kidnapping pursuant to section 667.61, subdivision (e).We also hold in the unpublished portion of this opinion that the court did not reversibly err by instructing, using CALJIC No. 2.28, on Jones's counsel's nondisclosure of her friendship with a defense expert witness;  the court did not err by instructing on reasonable doubt pursuant to CALJIC No. 2.90;  and Jones's sentence consisting of 30 years for three section 12022.3, subdivision (a), enhancements, plus a consecutive term of 25 years to life for each of counts one, two, and five, was not cruel or unusual punishment.

3.   Carolyn F. later ran screaming back to her friend's house.   Carolyn F. indicated to her friend that Carolyn F. had been beaten and raped.   She also indicated that she “had a knife on her throat.”   The next morning, Carolyn F. went to an outreach center.   She was crying and frightened.   She wrote a note to a volunteer worker, stating that she had been raped and asking that the police be summoned.   The police were summoned and a police officer interviewed Carolyn F. She was crying, scared, and distraught.   Based upon the note, she was taken to the hospital.At the hospital, Chris McClung, a sexual assault nurse examiner, examined Carolyn F. McClung observed she was very emotional and indicated that she had pain in her neck, throat, and rectal area.   Carolyn F. had abrasions on her lower left leg and discoloration around her neck.   An examination revealed vaginal tearing consistent with a “mounting injur[y],” and there was also “a lot of redness.”   Such tearing was unlikely, but not impossible, during consensual sex.   In Carolyn F.'s anal area, McClung observed abrasions, small tears, and white-yellowish secretions which were not normal for the rectal area.   Carolyn F.'s history and injuries corroborated her account of the attacks.   On about July 30, 1996, a detective took Carolyn F. to the crime scene.   She observed Jones walking down the street, identified him, and Jones was arrested.

FOOTNOTE.   See footnote *, ante.

15.   As to aggravating factors, the court stated that Carolyn F. was a small, deaf mute, while Jones was a substantially sized person;  accordingly, she was vulnerable.   The court also observed the crimes involved planning, and a threat of great bodily harm beyond the fact that the offenses were sexual crimes.

16.   The trial court observed, “I am sentencing under 1170.1 as to those two counts.  [¶] But since the court is-this is simply an exercise of sentencing discretion because of the total length of the sentence.   This court believes it could have found reasons, if it chose, to sentence full consecutive on 3 and 4, but I chose not to.”

17.   See People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369;  section 667.61, added by Stats.1993-1994, 1st Ex.Sess., ch.   14 (SB 26), § 1;  Gov't.Code, § 9600, subd. (a).  In 1994, section 667.61 provided, in relevant part, “(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years ․ [¶] ․ [¶] (c) This section shall apply to any of the following offenses:  (1) A violation of paragraph (2) of subdivision (a) of Section 261.[¶]  ․ [¶] (6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] ․ [¶] (d) The following circumstances shall apply to the offenses specified in subdivision (c):  [¶] ․ [¶] (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c). [¶] ․ [¶] (e) The following circumstances shall apply to the offenses specified in subdivision (c):  [¶] (1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 208, 209, or 209.5.[¶]  ․ [¶] (4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, or 12022.5.[¶] ․ [¶] (g) The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.   If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim.   Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.”

18.   As added, section 667.6, subdivision (d), read, in relevant part, “(d) [a] full, separate, and consecutive term shall be served for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm if such crimes involve separate victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d), added by Stats.1979, ch. 944, p. 3258, § 10.)

19.   The second paragraph read:  “[i]n 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 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.” (§ 667.6, subd. (d), amended by Stats.1986, ch. 1431, § 1.)

20.   When section 667.61 was enacted, both that section and section 667.6, subdivision (d), applied to violations of six offenses, i.e., (1) sections 261, subdivision (a)(2);  (2) 264.1;  (3) 288, subdivision (b);  (4) 289, subdivision (a);  and specified acts of (5) forcible sodomy or (6) forcible oral copulation in violation of 286 or 288a, respectively.   Section 667.61, but not section 667.6, subdivision (d), also applied to violations of section 262, subdivision (a)(1), and 288, subdivision (a).   Section 667.6, subdivision (d), was later amended to apply to violations of section 262, subdivision (a)(1).

21.   At this point, we rely on section 667.6, subdivision (d), solely to decide whether, under section 667.61, sentences must be imposed;  we will later address the issue of whether they must be served consecutively.

22.   The three cases were People v. Corona, supra;  People v. Pena, supra;  and People v. Plaza, supra.   We discuss Corona and Pena below.

23.   Whether sexual crimes specified in section 667.6, subdivision (d), are committed during an “indivisible” or “divisible” transaction for purposes of section 654 (see People v. Perez (1979) 23 Cal.3d 545, 549-554, 153 Cal.Rptr. 40, 591 P.2d 63) is not controlling, and may even be irrelevant, to the issue of whether they were committed on “separate occasions” for purposes of section 667.6, subdivision (d).

24.   On the other hand, the People's reliance on People v. Brown (1994) 28 Cal.App.4th 591, 33 Cal.Rptr.2d 678, is misplaced since the sentencing in that case was pursuant to section 667.6, subdivision (c), (id. at pp. 600-601, fn. 4, 33 Cal.Rptr.2d 678), which does not contain the “separate occasions” or “single occasion” language at issue in this case.

25.   In Harrison, in pertinent part, the defendant committed three acts of vaginal penetration with a foreign object, i.e., his fingers (§ 289), briefly interrupted by the victim's struggles and the defendant's use of force on other parts of the victim's body.  (People v. Harrison, supra, 48 Cal.3d at pp. 325-326, 256 Cal.Rptr. 401, 768 P.2d 1078.)   The defendant was convicted and sentenced on each count.  (Id. at p. 326, 256 Cal.Rptr. 401, 768 P.2d 1078.)

FOOTNOTE.   See footnote *, ante.

CROSKEY, Acting P.J.

KITCHING, J., and ALDRICH, J., concur.