THE PEOPLE v. CURTIS CLIFFORD INGRAM (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Curtis Clifford Ingram appeals from his judgment of conviction of three sex crimes.   His only argument on appeal is that Penal Code section 667.6 requires that the sentence on count 2 run concurrently to another sex crime sentence.¹  We find appellant forfeited the argument because he did not raise it at trial.   In any event, the consecutive sentence on count 2 was imposed under the mandatory provision of section 667.6, subdivision (d).  We find no error and affirm.

FACTUAL AND PROCEDURAL SUMMARY

In light of the limited issue raised on appeal we provide a brief factual summary, reserving the details of the attack on the victim for our discussion of the sentencing issue.

Monique B., who was 19 years old, was working alone early in the morning at a coffee house in Long Beach.   While setting up tables and chairs outside the shop, she was approached by appellant who asked if they were hiring.   She told him they were not but would accept resumes.   Monique told appellant he could stand inside the shop.   He came inside and stood by some couches, staring at her.   This made her uncomfortable as she continued to set up.   Appellant shut the front door and asked for a free drink.   Monique refused.   Because she was nervous and felt the need to have something with which to defend herself, Monique got a kitchen knife and began cutting peppers.   Appellant came to a doorway and continued to stare at her.   He asked if he could ask her a question.   When Monique looked up, he punched her in the left side of her face.   A fight ensued and appellant cut Monique.   She told him he could do what he wanted but begged him not to kill her.   Appellant raped her twice and orally copulated her.

Monique called 911.   She suffered a broken nose and a cut to her hand requiring five stitches.   After police arrived, appellant returned and was identified by Monique as her assailant.   When interviewed by police, appellant admitted hitting Monique, orally copulating her and raping her.   Appellant was charged with two counts of forcible rape (§ 261, subd. (a)(2), counts 1 and 3) one count of forcible oral copulation (§ 288a, subd. (c)(2), count 2), and one count of assault by means likely to cause great bodily injury (§ 245, subd. (a)(1), count 4).   The information alleged that appellant had suffered a prior serious or violent strike conviction under the Three Strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction under section 667, subdivision (a)(1), and that he had served four prior prison terms (§ 667.5, subd. (b)).  Appellant was convicted as charged and the prior conviction allegations were found true in a court trial.

Appellant was sentenced to an aggregate term of 39 years in state prison.   He was sentenced to the upper term of eight years on one rape count, doubled pursuant to the Three Strikes law;  the mid-term of six years on the second rape charge, concurrent to the first rape sentence;  the mid-term of six years on the oral copulation count, doubled pursuant to the Three Strikes law and consecutive to the first rape count;  and the mid-term of three years, doubled pursuant to the Three Strikes law on the assault charge, consecutive to the sentence on the first rape count.   An additional five-year term was added under section 667, subdivision (a)(1).   The sentence on the four prior conviction allegations under section 667.5, subdivision (b) was stayed.

DISCUSSION

Appellant argues the sentence on the oral copulation charged in count 2 must run concurrently to the base term sentence on the rape charged in count 3 because the trial court did not state its reasons for making the sentence consecutive.

Section 667.6, subdivision (c) provides that a consecutive term may be imposed for each violent sexual offense as defined in subdivision (e) of the statute if the crimes involve the same victim on the same occasion.  Section 667.6, subdivision (d) provides a full, separate and consecutive term “shall” be imposed for each violation of an offense specified in subdivision (e) if the crimes involve “separate victims or involve the same victim on separate occasions.”   The rapes and oral copulation committed by appellant are offenses enumerated in subdivision (e) of section 667.6.

The trial court must state a reason for imposing a consecutive sentence under section 667.6, subdivision (c).  (People v. Quintanilla (2009) 170 Cal.App.4th 406, 411, (Quintanilla ).)  “ ‘What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c).  The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).’  (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. omitted.)”  (Ibid.) “In making this determination, ‘[t]he sentencing judge is to be guided by the criteria listed in rule 4.425 which incorporates rules 4.421 [ (aggravating circumstances) ] and 4.423 [ (mitigating circumstances) ], as well as any other reasonably related criteria as provided in rule 4.408 [ (enumerated criteria not exclusive) ].’  (Cal. Rules of Court, rule 4.426(b).)”  (Ibid.)

In contrast, consecutive sentencing is mandatory under section 667.6, subdivision (d) if “the crimes involve separate victims or involve the same victim on separate occasions.”  (Italics added.)  “In determining whether crimes against a single victim were committed on separate occasions under [section 667.6, subdivision (d) ], 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.”  (Italics added.)   If the trial court finds under section 667.6, subdivision (d) that the sex crimes were committed on separate occasions, “we will reverse ‘only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.’  (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)”   (People v. King (2010) 183 Cal.App.4th 1281, 1325.)

Appellant argues the trial court did not state its reasons for ordering that the sentence for oral copulation in count 2 run consecutive to the sentence for rape in count 3. The issue is forfeited because appellant failed to object on this ground at sentencing.  (Quintanilla, supra, 170 Cal.App.4th at pp. 412–413 [waiver doctrine applies to claims involving trial court's failure to articulate discretionary sentencing choices].)

In any event, the record establishes that the trial court relied on the mandatory consecutive sentencing provision of subdivision (d) of section 667.6 rather than the discretionary provision of section 667.6, subdivision (c) and therefore no statement of reasons was required.

The prosecutor argued that count 2 (forcible oral copulation) should be a full term consecutive sentence to count 1, and that count 3, the second rape, should also run consecutively.   He argued that when appellant was unable to fully penetrate the victim in the first rape (count 1) because his penis was not erect, appellant changed positions and decided to orally copulate the victim, which demonstrated that appellant had an opportunity to reflect between committing these offenses.   The trial court used the count 3 rape as the base term because the evidence established it was the completed act of intercourse.   At the end of the sentencing hearing, the prosecutor asked the trial court “And you're incorporating the People's positions on the separate conduct to determine the consecutive sentencing, is that true?”   The trial court answered “Yes.”

The record reflects that the trial court imposed the consecutive sentence on count 2 based on the prosecutor's argument that appellant had an opportunity to reflect before orally copulating the victim.   This is a determination made under section 667.6, subdivision (d), the mandatory consecutive sentencing provision rather than the discretionary provision of section 667.6, subdivision (c).  We conclude that no statement of reasons was required.   On this record, a reasonable trier of fact could conclude that appellant had an opportunity to reflect between the first rape and the oral copulation, justifying the consecutive sentence on count 2.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

MANELLA, J. SUZUKAWA, J.