Filed 2/27/15 P. v. Green CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B254805

         Plaintiff and Respondent,
                                                                           (Los Angeles County
         v.                                                                Super. Ct. No. MA057061)

COREY D. GREEN,                                                            ORDER MODIFYING OPINION

         Defendant and Appellant.                                          [CHANGE IN JUDGMENT]




         THE COURT:
         It is ordered that the opinion filed herein on February 19, 2015, be modified as
follows:
         1.        On page 1, first paragraph, second sentence, insert after “Affirmed,” the
words “with directions.”
         2.        On page 2, second paragraph, second sentence, insert after “judgment,”
the words “with directions to amend the abstract judgment to accurately reflect the
sentencing.”
         3.        On page 9, insert the following new paragraph after line 2:
         “The Attorney General correctly notes that the abstract of judgment does not
accurately reflect the sentence imposed by the trial court in that it fails to show that:
(1) the court imposed consecutive terms on counts 2 and 3; (2) the terms of 25 years to
life imposed on counts 1, 2, and 3 were imposed pursuant to section 667.61; (3) the
terms of 25 years to life imposed on counts 1, 2, and 3 were doubled to 50 years to life
pursuant to section 1170.12; and (4) the court imposed a consecutive 5-year
enhancement on count 3 pursuant to section 667, subdivision (a)(1). This court has the
authority to correct clerical errors in an abstract of judgment. (People v. Mitchell (2001)
26 Cal.4th 181, 186-187.) We therefore will direct the trial court to amend the abstract
of judgment to reflect the sentence in these regards.”
       4.     On page 9, insert after the first sentence in the Disposition: “The trial
court is directed to prepare an amended abstract of judgment as stated in this opinion
and forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.”


       [This modification changes the judgment.]




                                             2
Filed 2/19/15 P. v. Green CA2/3 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B254805

         Plaintiff and Respondent,
                                                                           (Los Angeles County
         v.                                                                Super. Ct. No. MA057061)

COREY D. GREEN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eric P. Harmon, Judge. Affirmed.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney
General, for Plaintiff and Respondent.


                            _______________________________________
       A jury convicted defendant Corey D. Green of one count of forcible oral
copulation (Pen. Code, § 288a, subd. (c)(2)(A))1 and two counts of forcible sexual
penetration by a foreign object (§ 289, subd. (a)(1)(A)). It also found pursuant to
section 667.61, subdivisions (a) and (d) and section 667.71 that defendant had suffered
a prior conviction of rape (§ 261, subd. (a)(2)). The trial court found true allegations
that defendant had suffered a prior conviction for failure to register as a sex offender
(§ 290) and had served a prior prison term (§ 667.5, subd. (b)). The court determined
that each of the three present crimes of which defendant was convicted occurred on
a separate occasion and sentenced him to three consecutive terms of 50 years to life,
plus additional time on the enhancements, for an aggregate term of 166 years to life.
       Defendant contends the evidence does not support the trial court’s finding that
each act against the same victim occurred on a separate occasion. We disagree and
affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1.     Factual Background
       After her car broke down, M. had it towed to the back corner of a parking lot
behind an AutoZone store in Palmdale in the early afternoon of July 11, 2012. She
determined that it needed a new alternator. M. was experienced in car repair, had her
own tools and a jack, and decided to replace the alternator herself. She entered the
store, found the price of a new alternator, and returned to the car to jack it up. M. then
laid out her tools beside the car and began working on her car.
       M. suffered from fibromyalgia and experienced pain in her spine and intestines.
She had taken hydrocodone and other medications shortly before the incident and felt
drowsy as a result. M. was 5 feet, 2 inches tall and weighed 105 to 110 pounds. She
had been living in her car for a week, and many of her possessions were in her car. Her
children were staying with her parents.



1
       All statutory references are to the Penal Code unless stated otherwise.

                                             2
       Defendant approached M. as she was standing over the engine compartment
unscrewing a bolt. He asked her what she was doing. M. did not know defendant and
had never seen him before. She told him that she was replacing the alternator so she
could return to her children. Defendant asked if she needed help. M. stated that she did
not. Defendant grabbed the tool from her hand and said that he used to work as an auto
mechanic and could help. He appeared to be working on the car for a couple of minutes
as M. sat down by her tools. Defendant then approached her by the tools and began
talking to her. He pulled out a wad of money and offered to pay her for sex.
M. declined and returned to the front of her car with a tool in her hand. Defendant
followed her, grabbed the tool from her hand, and resumed working on the alternator.
       M. returned to the side of the car to get another tool. Defendant approached her
from behind. He placed one arm across her chest and the other on her lower abdomen,
reached inside the front of her pants, and forcefully inserted a finger inside her vagina.
M. pushed defendant away and told him to stop. She was frightened and believed that
there was nowhere to run. Defendant grabbed her arm and held it tight. He appeared
angry and agitated. A store employee then walked out of the store. Defendant released
M.’s arm, walked to the front of the car, and pretended to work on the car. The
employee got into a car and drove away. M. walked to the front passenger side of the
car.
       Defendant then approached M. again, grabbed her and forced her down to her
knees near the driver’s side front fender. She protested as defendant pulled out his
penis, held her head, and shoved his penis into her mouth. M. soon managed to pull her
head away. She was distraught, confused, frightened, and crying. She walked to the
front of the car.
       Defendant approached her again and stood with her by the front of the car as
another store employee walked out of the store to make a delivery. M. told defendant
that she just wanted to repair her car so she could get out of there and go home to her
children. She walked to the driver’s side of the car. Defendant opened the driver’s side
rear passenger door, removed some items from the back seat, and threw M. onto her

                                             3
stomach on the back seat of the car. He pulled off her pants and panties and told her to
spread her vagina for his penis. She heard sounds that suggested to her that he was
photographing her and told him not to take pictures. He denied doing so. Defendant
then forcefully inserted his fingers into her vagina. He suddenly stopped, jumped up,
slammed the car door against her legs, and told her to hurry up and get dressed. He
walked over to the tools.
       M. slowly put her panties and pants back on and got out of the car. Seeing
a female store employee walking out of the store, M. walked to the front of the car on
the passenger side and mouthed “help me” to the employee. M. was crying. The
employee nodded at M. and then got into the car and drove away. The employee
returned to the store five to eight minutes later after making a delivery and told her
coworkers what she had seen. Two of her coworkers then left the store, approached
defendant and M., and asked what was happening. M. appeared uncomfortable, and
defendant grabbed her wrist. One of the employees told defendant that they were
calling the police. Defendant walked away and was arrested nearby.2
       Defendant was 6 feet, 1 or 2 inches tall at the time of his arrest and weighed
200 to 210 pounds. He was carrying a large amount of cash and a cellular phone with
video recordings of part of the incident.
       2.     Trial Court Proceedings
       A jury convicted defendant of one count of forcible oral copulation (§ 288a,
subd. (c)(2)(A)) (count 1) and two counts of forcible sexual penetration by a foreign
object (§ 289, subd.(a)(1)(A)) (counts 2 & 3). It also found pursuant to section 667.61,
subdivisions (a) and (d) and section 667.71 that defendant had suffered a prior rape
conviction (§ 261, subd. (a)(2).) The trial court found true allegations that defendant



2
      Sometime after defendant first approached M. and before he departed, a man
who had borrowed jumper cables from M. returned them to her. Defendant spoke with
the man and prevented M. from doing so by forcefully placing his hand on her shoulder
and squeezing her shoulder.


                                             4
had suffered a prior conviction for failure to register as a sex offender (§ 290) and had
served a prior prison term (§ 667.5, subd. (b)).
       The trial court requested briefing on whether the three present crimes were
committed on the same or separate occasions under section 667.6, subdivision (d) and
whether consecutive terms should be imposed. After considering the briefs, the court
found that the three crimes “involve the same victim on separate occasions” within the
meaning of section 667.6, subdivision (d) and that consecutive terms were appropriate.
The court explained:
       “The prolonged time period, separate types of crimes, the fact that he stopped
perpetrating the crimes when an employee or customer walked out, that he interacted
with people and created subterfuge and resumed perpetration of the crimes, they took
place at different locations, both inside and outside of a car and that he took enough
reflection and enough time to make a video recording [of] one of the sex acts.”
       The trial court sentenced defendant on count 1 to 25 years to life, doubled to
50 years to life pursuant to the Three Strikes law (§ 1170.12, subds. (a)–(d)), plus
a consecutive 5-year enhancement under section 667, subdivision (a)(1) and
a consecutive 1-year enhancement under section 667.5, subdivision (b). The court
sentenced him on count 2 to a consecutive term of 25 years to life, doubled to 50 years
to life pursuant to the Three Strikes law, plus a consecutive 5-year enhancement under
section 667, subdivision(a)(1). The court sentenced him on count 3 to a consecutive
term of 25 years to life, doubled to 50 years to life pursuant to the Three Strikes law,
plus a consecutive 5-year enhancement pursuant to section 667, subdivision(a)(1).
Thus, defendant was sentenced to an aggregate term of 166 years to life.
                                     CONTENTION
       Defendant contends the evidence does not support the finding that each act
against the same victim occurred on a separate occasion and therefore does not support
the imposition of consecutive terms.




                                             5
                                      DISCUSSION
       Section 667.6, subdivision (d) states that a court must impose a consecutive term
for certain sex crimes if the crimes involve separate victims or the same victim on
separate occasions. Section 667.6, subdivision (d) states further:
       “In 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.”
       The determination whether crimes against the same victim occurred on separate
occasions under this provision ordinarily depends on whether the defendant had
a reasonable opportunity to reflect on his or her actions after one crime and before
another. (People v. Solis (2012) 206 Cal.App.4th 1210, 1220; People v. Garza (2003)
107 Cal.App.4th 1081, 1092-1093.) A finding that the crimes occurred on separate
occasions does not require a break of any specific duration, a change in physical
location, or an obvious break in the defendant’s behavior. (People v. Jones (2001)
25 Cal.4th 98, 104; People v. King (2010) 183 Cal.App.4th 1281, 1325.)
       A reviewing court will defer to the trial court’s determination that crimes against
the same victim occurred on separate occasions unless no reasonable trier of fact could
have concluded that the defendant had a reasonable opportunity for reflection after one
crime and before another. (People v. King, supra, 183 Cal.App.4th at p. 1325; People v.
Garza, supra, 107 Cal.App.4th at p. 1092.)
       Here, defendant’s first act of forcible digital penetration occurred when M. was
standing to the side of the car by the tools. Defendant stood behind M., put his arms
around her, reached inside the front of her pants, and forcefully inserted his finger into
her vagina. She pushed him away and protested. The forcible digital penetration ended
at that time. Defendant was angry and agitated. He held her by the arm and released

                                             6
her arm when a store employee walked out of the store. Defendant then stepped away
from M., walked to the front of the car, and pretended to work on the car.
       Defendant’s act of forcible oral copulation occurred by the driver’s side front
fender after the store employee had driven away. Defendant forced M. down to her
knees and put his penis into her mouth. The forcible oral copulation ended when
M. pulled away from defendant. M. then walked to the front of the car. Defendant
approached her again and stood with her while another store employee walked out of
the store on a delivery run. M. told defendant that she just wanted to repair her car so
she could go home to her children, and she walked to the driver’s side of the car.
Defendant then opened the rear passenger door on the driver’s side, removed items from
the back seat, and threw M. onto her stomach on the back seat. He pulled off her pants
and panties and began making a video recording of her using his cell phone before
forcefully inserting his fingers into her vagina.
       Defendant’s conduct after the first act of forcible digital penetration had ended
and before the forcible oral copulation began suggests that he was aware of the
wrongful nature of his conduct and the danger of being discovered and, therefore, had
an opportunity to reflect on his actions. (See People v. King, supra, 183 Cal.App.4th at
pp. 1325-1326.) He released M.’s arm, walked away from her, and pretended to work
on the car when a store employee appeared. The change in location, the subterfuge of
pretending to work on the car while the employee came and went, and the time elapsed
between the two sex crimes all support the trial court’s finding that defendant had
a reasonable opportunity to reflect on his actions before resuming his attack.
       Defendant’s conduct after the forcible oral copulation had ended and before the
second act of forcible digital penetration began also suggests that he was aware of the
wrongful nature of his conduct and the danger of being discovered and had an
opportunity to reflect on his actions. He followed M. to the front of the car and stood by
her, refraining from sexually assaultive behavior while the store employee was present.
M. told defendant that she just wanted to repair her car so she could go home to her
children. During the lull in activity, defendant was able to prepare for his next sex

                                             7
crime by removing items from the back seat of the car before throwing M. onto the back
seat. (See People v. Garza, supra, 107 Cal.App.4th at pp. 1092-1093.) The change in
location, the brief conversation, the pause while the employee came and went, the time
elapsed between the two sex crimes, defendant’s preparation for his next sex crime, and
the fact that he had the presence of mind to record the second act of forcible digital
penetration all support the trial court’s finding that he had a reasonable opportunity to
reflect on his actions before resuming his attack.
       Contrary to defendant’s argument, the evidence supports the trial court’s finding
that defendant stopped perpetrating the crimes when a store employee was present. The
evidence shows that during the interim between the first act of forcible digital
penetration and the forcible oral copulation, defendant refrained from his sexually
assaultive behavior while a store employee came and went, as we have discussed. The
evidence also shows that during the interim between the forcible oral copulation and the
second act of forcible digital penetration, defendant again refrained from sexually
assaultive behavior while another store employee came and went.
       Defendant’s challenge to the trial court’s finding that defendant “interacted with
people and created a subterfuge and resumed perpetration of the crimes” is not
persuasive. M. testified at trial that defendant spoke with a man who was returning her
jumper cables and prevented her from interacting with the man by forcefully squeezing
her shoulder. This testimony suggests an effort to create a false appearance of normalcy
so as to avoid detection. To the extent the evidence does not support the court’s finding
that defendant interacted with more than one person in this manner before resuming his
perpetration of crimes, any misstatement in this regard does not show that the court
applied an improper legal standard or misapplied the law, and does not otherwise
undermine the court’s finding that the crimes occurred on separate occasions.
       We conclude that the trial court correctly found as to each successive act that
defendant had a reasonable opportunity to reflect on his actions and nevertheless
resumed his sexually assaultive behavior. The evidence therefore supports its



                                             8
determination that the acts occurred on separate occasions within the meaning of
section 667.6, subdivision (d) and the imposition of consecutive sentences was proper.3
                                       DISPOSITION
       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                          LAVIN, J.*

WE CONCUR:




       EDMON, P. J.




       ALDRICH, J.




3
       In light of our conclusion, we need not decide whether defendant forfeited his
challenge to the trial court’s sentencing decision by failing to assert in the trial court.
*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                              9
