Filed 7/16/14 P. v. Galvan CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065488

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1101502)

JOSE ALBERTO GALVAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Charles J.

Koosed, Judge. Affirmed.

         Victoria H. Stafford, by appointment of 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, Peter Quon, Jr., and Raquel M.

Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Jose Alberto Galvan of committing three sex offenses against the

then-16-year-old female victim in February 2011: (1) forcible penetration with a foreign
object (count 1: Pen. Code,1 § 289, subd. (a)(1)), (2) forcible oral copulation (count 2:

§ 288a, subd. (c)(2)), and (3) forcible rape (count 3: § 261, subd. (a)(2)).

       As to each of these three counts, the jury found to be true allegations that in

committing each crime, Galvan (1) entered a residence with the intent to commit a

violent sex offense (§ 667.61, subds. (c), (d)(4)); (2) committed the crime during the

commission of a burglary (§ 667.61, subd. (e)(2)), and (3) kidnapped the victim (§

667.61, subd. (e)(l)).

       The jury also convicted Galvan of preventing or dissuading a witness from

testifying (count 4: § 136.1, subd. (c)(l).)

       The court sentenced Galvan to a state prison term of 75 years to life, consisting of

three consecutive terms of 25 years to life for his convictions of counts 1 through 3, plus

a concurrent determinate term of three years for his count 4 conviction.

       Galvan appeals, contending (1) his three sex-offense convictions (counts 1-3) and

the jury's true findings on the related enhancement allegations should be reversed because

(a) the prosecutor committed misconduct during her rebuttal argument to the jury by

"trivializing" the beyond-a-reasonable-doubt standard of proof, and (b) his trial counsel

rendered prejudicially ineffective assistance by failing to object to the prosecutor's

misconduct; (2) the consecutive sentences imposed for his convictions of counts 1

through 3 should be reversed and the matter should be remanded for resentencing

because the court applied section 654 instead of section 667.6, subdivision (d) (hereafter



1      All further statutory references will be to the Penal Code.
                                               2
section 667.6(d)) in deciding whether to impose concurrent or consecutive terms for

those three sex-offense convictions; and (3) if this court concludes the court applied the

correct standard in imposing consecutive sentences for his convictions of counts 1

through 3, the consecutive sentences imposed in counts 1 and count 2 under section

667.6(d) nevertheless should be reversed because there is insufficient evidence to support

a finding he had a "reasonable opportunity to reflect" between the forcible oral copulation

of the victim (count 2) and the forcible penetration of her vagina with a foreign object

(count 1) within the meaning of section 667.6(d). We affirm the judgment.

                              FACTUAL BACKGROUND

       A. The People's Case

       In February 2011 the victim lived in Riverside County with her sister and her

sister's two children. Galvan met the victim when she was about 14 years old, and he was

dating her cousin.

       On February 11, 2011, after school, the victim was alone at home babysitting her

sister's children while her sister, whose shift ended at 1:00 a.m., was at work. At around

8:00 p.m., the victim heard some knocking at the front door while she was watching TV

with the children. She opened the door and the exterior motion light went on, but no one

was there.

       About 10 to 15 minutes later, the victim again heard knocking at the front door,

but this time she did not open the door. Instead, she looked through the window and saw

the motion light was on, but again no one was outside.



                                             3
       About an hour later, at around 9:15 or 9:30 p.m., the victim again heard knocking

at the front door. She looked out through the window and saw that the motion light had

not turned on, and once again she did not see anyone outside. Shortly thereafter the

victim locked the doors, turned off all the lights, and then retired with the children to her

sister's bedroom, where they went to sleep.

       The victim testified that right after she and the children went to bed she heard

more knocking at the front door, but this time she ignored it. Shortly thereafter someone

approached her in the bedroom as she was lying on her side with her eyes closed. He

touched her shoulder and placed his hand over her mouth, pressing down to cover her

mouth. The victim yelled and could only see the man's eyes because most of his face was

covered with a drawstring-type hooded sweatshirt.

       The victim testified that the man whispered to her in Spanish that he wanted to

take her to her room. She started screaming when he picked her up and started to carry

her there. She tried to turn on the light by the door of her sister's room, but was unable to

do so. The man pulled her away, picked her up, and dragged her to her room. As he was

dragging her, the victim asked him who he was and told him to stop and leave.

       After the man took the victim into her bedroom, he closed and locked the door.

The victim testified he then began touching her as she stood in the room, and he told her

to let him touch her. Invoking God, the victim asked him to let her go and leave, but he

did not answer. The man told her that if she would let him touch her, he would not do

anything to her. He touched her breast over her clothes, and she tried to push him away.



                                              4
        The victim then tried to go to the door. The man threatened her by telling her he

had a knife and would kill her and the children if she screamed or did anything. The

victim testified she began to recognize Galvan's voice by his accent when he said her

name.

        Galvan stopped touching the victim's breast when he told her to lie down on her

bed and take off her clothes. When she failed to comply, he took her to her bed either by

carrying her or pulling her. The victim fought back and bit Galvan's hand when he tried

to take off her T-shirt. He told her to stop and threatened again that if she screamed or

did anything he would kill her and the children.

        Galvan pushed the victim down on her bed with his hands and told her he knew

her and liked her and wanted to have sex with her. He then touched her breasts and

licked her breast and neck while she tried to push him away. Galvan again threatened

her, but she kept trying to resist him.

        Galvan pulled down his shorts, put the victim's hand on his penis, and tried to have

her masturbate him. The victim testified she did not resist because he kept threatening

her, and he forced her to touch him this way more than once.

        The victim testified that Galvan took off her pants and underwear, started licking

her "private part" between her legs and then started touching her there with his fingers.

He penetrated her with his fingers, hurting her. The victim kept trying to push him away.

She continued to try to push his head away as he was licking her vagina and penetrating

her with his fingers. The victim told Galvan to leave and take her laptop, her camera, and

her money.

                                             5
       The victim testified that Galvan then told her, "Okay, then I'm just going to do it."

He then put his penis in her vagina, hurting her, as she was trying to push him off of her.

However, he was unable to fully penetrate her. In a laughing manner, he asked whether

she was a virgin, and she said, "Yes." Galvan got up off the bed, touched himself, and

ejaculated on the victim's leg.

       Galvan pulled up his shorts and told the victim that if she told anyone about what

had happened he would kill her family. He then left.

       The victim testified she stayed in her room, crying, for about 10 minutes. She then

turned on the lights in her room, noticed a mess in the area where she kept her jewelry,

and found her three gold bracelets were missing. About $50 in cash was also missing.

       The victim went to check on her sisters' children, who were still sleeping, and

when she found the front door was unlocked, she locked it. In the living room she found

the DVD's were in disarray and some movies were missing. The victim sat down in her

sister's room and waited for her sister to return.

       The victim testified she was still scared and crying when her sister returned home

from work. The victim reported to her sister that Galvan had raped her and had

threatened to kill her and the children with a knife if she said anything. Her sister called

the police.

       Bethany Thrasher, a forensic registered nurse at the Riverside County Regional

Medical Center, indicated that the victim arrived there at about 4:00 o'clock the next

morning. Thrasher testified that the victim seemed "a little anxious, tearful, but quiet."

Thrasher conducted a pelvic examination and saw that that the victim had abrasions,

                                               6
bruises, and lacerations. The victim also had abrasions on her upper lip and nose area

and an abrasion on her cheek.

       Thrasher collected a swab of a dried secretion on the victim's right inner thigh.

Forensic testing revealed sperm cells on the thigh swab. DNA testing established that the

sperm was an "identical match" to Galvan's reference sample.

       The victim's sister testified that she returned home at around 1:45 a.m. on the night

of the incident. The victim was crying and shaking when the victim told her Galvan had

raped her. The victim told her sister she was unable to defend herself because Galvan

threatened to kill the children.

       The victim's sister also testified the money she had left in her wallet on the dining

room table─about $80─was gone. She discovered the loss the next day, when she

needed to buy milk.

       The victim's sister also testified that Galvan's mother, his girlfriend (who is the

victim's cousin), and his girlfriend's mother and sister came to her house to try to pressure

the victim into changing her story about what had happened. At trial, the victim

confirmed that her cousin and Galvan's mother tried to pressure her to change her story.

       Galvan's girlfriend testified that Galvan arrived home around 11:30 p.m. on the

night of the crimes. He told her he had been in Los Angeles. The next day, as Galvan

and his girlfriend were dancing, he asked her to hug him and said he had made a mistake

and he never wanted to be in jail.

       During a search of Galvan's trailer, police recovered the victim's gold bracelets

and the missing DVD's.

                                              7
       B. Defense Case

       Galvan did not testify at his trial, and the defense rested without presenting

evidence.

                                       DISCUSSION

  I. PROSECUTORIAL MISCONDUCT/INEFFECTIVE ASSISTANCE OF COUNSEL

       Galvan first contends his three sex-offense convictions and the jury's true findings

on the related enhancement allegations should be reversed because (1) the prosecutor

committed misconduct during her rebuttal argument to the jury by "trivializing" the

beyond-a-reasonable-doubt standard of proof, and (2) his trial counsel rendered

prejudicially ineffective assistance by failing to object to the prosecutor's misconduct.

We conclude these contentions are unavailing because (1) Galvan forfeited his claim of

prosecutorial misconduct; (2) he has not substantiated his claim of misconduct because he

has not shown, and cannot demonstrate, the claimed misconduct rendered his trial unfair

or that the prosecutor used deceptive or reprehensible methods to persuade the jury; (3)

he was not prejudiced by the claimed misconduct; and (4) any ineffectiveness by his trial

counsel was similarly harmless.

       A. Background

       1. CALCRIM No. 220 (reasonable doubt)

       The court properly instructed the jury under CALCRIM No. 220, which defines

reasonable doubt, informs the jury it must consider all the evidence and instructs the jury

the defendant is entitled to an acquittal unless the evidence proves him guilty beyond a

reasonable doubt. As pertinent here, the court instructed the jury under CALCRIM No.

                                              8
220 that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding

conviction that the charge is true." (Italics added.)

       2. Closing arguments

       During her closing argument, as pertinent here, the prosecutor referred to the jury's

duty to apply the law, reminded the jury that the court had already instructed them on the

law, and stated that "if for some reason you remember hearing the law differently from

his Honor, always go back to the jury instructions that you will have in the back. Same

thing with defense counsel. If he says something that kind of misinterprets the law,

always go back to the packet." (Italics added.)

       In his closing argument, defense counsel spoke about the nature of an "abiding

conviction" as it relates to the beyond-a-reasonable-doubt standard of proof:

          "The instruction, the law is proof beyond a reasonable doubt is an
          abiding conviction to the charge as the truth. What is abiding
          conviction? It is a long-lasting long-held belief, one that is
          essentially not easily changed. It's steady. It's steadfast. So it is an
          opinion. It is a belief that is not going to waiver in a couple hours
          or possibly a day or week or two or possibly more. An example of
          what an abiding conviction might be. Each one of you has their [sic]
          own example. Perhaps it is your religious beliefs, that abiding
          conviction you have in those beliefs is not going to change
          tomorrow. It is not going to change next week. It is not going to
          change next month. It's an abiding conviction. Perhaps some of you
          it is your relationship you have with your significant other that in
          your mind in your dedication that abiding conviction will remain
          today, tomorrow, the next day. Perhaps if you have children your
          abiding conviction of the children is not going to change tomorrow
          or the next day. It's going to be steadfast, something you believe in,
          something you feel comfortable with." (Italics added.)




                                              9
       In rebuttal, the prosecutor addressed that argument:

          "[P]roof beyond a reasonable doubt is proof that leaves you with an
          abiding conviction the charge is true. That's your definition. There's
          nothing about you can't wake up in a week and change your mind or
          that it has to be concerned about how you view your relationships or
          your children. There's none of that. That's not in the definition.
          You get to decide what is beyond a reasonable doubt. That's your
          choice. That's what you decide based off the evidence that's been
          provided here. I just wanted to direct you back to the law and what
          the law actually says." (Italics added.)

       B. Analysis

       Galvan's claim of ineffective assistance of counsel is premised on his contention

that the prosecutor committed misconduct during her rebuttal argument to the jury.

Specifically, relying principally on this court's decision in People v. Nguyen (1995) 40

Cal.App.4th 28 (Nguyen), Galvan asserts the prosecutor incorrectly defined "abiding

conviction" as that term is used in CALCRIM No. 220 to define proof beyond a

reasonable doubt,2 and thereby "trivialized and diluted" the reasonable doubt standard, by

arguing that an "abiding conviction" is a short-term decision that need not last even a

week and is not comparable to the conviction with which one makes decisions about

family matters, and that the jury could choose what is beyond a reasonable doubt.

Galvan also asserts his trial counsel was ineffective in failing to object to the prosecutor's

misconduct because the jurors "would have assumed from defense counsel's

silence . . . that [an] abiding conviction as used in CALCRIM [No.] 220 [meant] that the

jurors' conviction need not last through the week and need not be particularly deeply felt,


2      As noted, CALCRIM No. 220 states in part: "Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge is true." (Italics added.)
                                              10
and that 'reasonable doubt' was a subjective standard of the jury's choosing." These

assertions are unavailing.

       As already noted, defense counsel stated during his closing argument that an

abiding conviction is a "long-lasting long-held belief" that is "not easily changed," it is

"steady" and "steadfast," and it "is not going to waiver in a couple hours or possibly a day

or week or two or possibly more." To illustrate what constitutes an abiding conviction,

counsel argued that "[p]erhaps it is your religious beliefs" or "your relationship . . . with

your significant other" or children.

       Galvan complains that, in responding to his counsel's foregoing statements to the

jury, the prosecutor trivialized and diluted the reasonable doubt standard, and thereby

engaged in misconduct by telling the jury that "[t]here's nothing" in the CALCRIM No.

220 instruction on reasonable doubt given by the court "about you can't wake up in a

week and change your mind or that it has to be concerned about how you view your

relationships or your children." Galvan also complains about the prosecutor's statements

to the jury that "[you] get to decide what is beyond a reasonable doubt" and "that it was

the jury's choice."

       To preserve a claim of prosecutorial misconduct for appeal, a defendant must

object in a timely fashion on that ground and request a curative jury admonition unless an

admonition would not have cured the harm caused by the misconduct. (People v. Hinton

(2006) 37 Cal.4th 839, 863; Nguyen, supra, 40 Cal.App.4th at p. 36 ["If the defendant

fails to object to the asserted misconduct and does not request an instruction or

admonition to lessen any possible prejudice, then the asserted objection is thereby

                                              11
waived."].) Here, by not objecting to the prosecutor's allegedly improper rebuttal

arguments and not requesting a curative jury admonition, Galvan forfeited his claim of

prosecutorial misconduct. (Hinton, at p. 863; Nguyen, at p. 36.)

       Even if Galvan's claim of prosecutorial misconduct had been preserved, it would

fail. "[I]t is misconduct [for a prosecutor] to misstate the law during argument." (People

v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) "A prosecutor's conduct violates the

Fourteenth Amendment to the federal Constitution when it infects the trial with such

unfairness as to make the conviction a denial of due process." (People v. Morales (2001)

25 Cal.4th 34, 44 (Morales).) Furthermore, when a claim of prosecutorial misconduct

focuses on the prosecutor's questions or comments before the jury, "'the question is

whether there is a reasonable likelihood that the jury construed or applied any of the

complained-of remarks in an objectionable fashion.'" (People v. Cole (2004) 33 Cal.4th

1158, 1202-1203, italics added, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072,

overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823.)

       Here, even if we were to assume the prosecutor misstated in some manner the law

regarding the definition of proof beyond a reasonable doubt during her rebuttal argument,

Galvan has not shown, and cannot demonstrate, that any assumed misstatement of the

law by the prosecutor "infect[ed] the trial with such unfairness as to make [his]

conviction[s] a denial of due process." (Morales, supra, 25 Cal.4th at p. 44.) As noted,

the court properly instructed the jury under CALCRIM No. 220 on the beyond-a-

reasonable-doubt standard of proof. During her closing argument, the prosecutor

reminded the jury of their duty to "apply the law" set forth in the court's instructions and

                                             12
specifically told them to "always go back to the jury instructions." During his closing

argument, defense counsel also reminded the jury of their duty to follow the law,

including the court's instruction on reasonable doubt. During her rebuttal argument, the

prosecutor again directed the attention of the jury back to the court's instruction on the

meaning of reasonable doubt. Displaying the instructional language from CALCRIM

No. 220 during her Power Point presentation and reading from CALCRIM No. 220, she

told the jury, "This is the definition you're going to get. And what I highlighted—it's the

entire thing, but ['p]roof beyond a reasonable doubt is proof that leaves you with an

abiding conviction the charge is true.['] That's your definition."

       We presume the jury in this case understood and followed the instruction on

reasonable doubt that the court gave to the jury under CALCRIM No. 220. (People v.

Brady (2010) 50 Cal.4th 547, 566, fn. 9; People v. Hinton, supra, 37 Cal.4th at p. 871;

Nguyen, supra, 40 Cal.App.4th at p. 37.) Accordingly, because we presume the jury

followed the court's instructions and nothing in the record shows otherwise, we conclude

that the jurors ignored any misstatements the prosecutor made during her rebuttal

argument, followed the court's instructions, and applied the proper standard set forth in

CALCRIM No. 220 in deciding whether the People had met their burden of proof.

Galvan has not shown it is reasonably likely the jury construed or applied the prosecutor's

complained-of remarks in an objectionable fashion. (People v. Cole, supra, 33 Cal.4th at

pp. 1202-1203.)

       Had Galvan's claim of prosecutorial misconduct been preserved, it would also fail

under state law because, as the Attorney General correctly argues, "there was nothing

                                             13
objectionable or deceitful or reprehensible about the prosecutor's argument." (Morales,

supra, 25 Cal.4th at p. 44 ["Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury."].)

       Galvan's reliance on this court's decision in Nguyen, supra, 40 Cal.App.4th 28, is

misplaced. Galvan asserts that, in Nguyen, this court "reversed where the prosecutor had

argued that the reasonable doubt standard was 'a very reachable standard that you use

every day in your lives when you make important decisions, decisions about whether you

want to get married, decisions that take your life at stake when you change lanes as you're

driving.'" (Italics added.)

       Galvan misrepresents this court's decision in Nguyen. In that case, the prosecutor

did tell the jury during closing argument that the reasonable doubt standard is "'a very

reachable standard that you use every day in your lives when you make important

decisions, decisions about whether you want to get married, decisions that take your life

at stake when you change lanes as you're driving.'" (Nguyen, supra, 40 Cal.App.4th at p.

35.) The defendant claimed on appeal that his burglary conviction should be reversed

because the prosecutor committed misconduct by misstating the reasonable doubt

standard. (Ibid.) Concluding that the defendant "ha[d] a valid point," this court stated

that "[w]e strongly disapprove of arguments suggesting the reasonable doubt standard is

used in daily life to decide such questions as whether to change lanes or marry." (Id. at p.

36.)

                                            14
       However, this court did not reverse the defendant's conviction, as Galvan asserts.

We affirmed the judgment, notwithstanding the prosecutor's misstatement of the law

regarding reasonable doubt, because (1) the defendant had forfeited his claim of

prosecutorial misconduct by failing to object in the trial court to the prosecutor's

misstatement of the law; and (2) even if the claim had been preserved, the defendant "was

not prejudiced since the prosecutor did direct the jury to read the reasonable doubt

instruction," the jury was correctly instructed on the reasonable doubt standard, and we

presumed the jury followed that instruction. (Nguyen, supra, 40 Cal.App.4th at pp. 36-

37.)

       Thus, Galvan's reliance on Nguyen is unavailing because he, like the defendant in

that case, forfeited his claim of prosecutorial misconduct, and, like the Nguyen defendant,

he suffered no prejudice because the jury was correctly instructed on the reasonable

doubt standard, both the prosecutor and Galvan's counsel directed the jury to follow the

reasonable doubt instruction, and there is nothing in the record to rebut the presumption

that the jury followed that instruction.

       Galvan's related claim of ineffective assistance of counsel also fails. In Nguyen,

the defendant similarly claimed his conviction should be reversed because his trial

counsel rendered ineffective assistance by failing to object to the prosecutor's misconduct

in misstating during closing argument the law regarding the beyond-a-reasonable-doubt

standard of proof. (Nguyen, supra, 40 Cal.App.4th at p. 37, fn. 2.) In rejecting that

claim, we stated: "Having concluded the prosecutor's misconduct constituted harmless



                                             15
error, we need not address Nguyen's argument his counsel's failure to object constituted

ineffective assistance of counsel; any failure by counsel was likewise harmless." (Ibid.)

       Here, we have concluded that, even if Galvan's claim of prosecutorial misconduct

had been preserved, the claimed misconduct committed by the prosecutor during her

rebuttal argument constituted harmless error.

       Accordingly, Galvan's claim of ineffective assistance of counsel fails because "any

failure by counsel was likewise harmless." (Nguyen, supra, 40 Cal.App.4th at p. 37, fn.

2.) In this regard, we note that the evidence of Galvan's guilt was overwhelming. The

victim's testimony at trial was detailed and compelling. The victim's sister testified to the

victim's distraught demeanor when the sister returned home after Galvan raped the victim

and left. Forensic evidence and expert testimony established that Galvan's DNA was

found in the dried secretion swabbed from the victim's thigh. In addition, the evidence

showed the police recovered the victim's stolen gold bracelets and the missing DVD's

during a search of Galvan's trailer.

       For all of the foregoing reasons, we conclude Galvan's claim that his counsel

rendered prejudicial ineffective assistance of counsel is meritless.

                    II. CONSECUTIVE SENTENCES (COUNTS 1-3)

       Galvan next contends the consecutive sentences imposed for his convictions of

count 1 (forcible penetration with a foreign object), count 2 (forcible oral copulation),

and count 3 (forcible rape) should be reversed, and the matter remanded for resentencing

because the court applied section 654 instead of section 667.6(d) in deciding whether to



                                             16
impose concurrent or consecutive terms for those sex-offense convictions. This

contention is unavailing.

       A. Background

       At the sentencing hearing, defense counsel argued that even though the sex

offenses "were charged separately and are separate convictions," for purposes of section

654 they were "very intertwined with one another and constitute[d] a singular course of

conduct." He indicated the court should apply section 654 to two of the three sexual

assault counts.

       The prosecutor responded that section 654 did not apply because the charges were

"separate and distinct" in that the penetration, the oral copulation, and the rape "were

each happening at different time periods when this entire heinous event was occurring."

She argued that it would be "completely unjustified" to "just allow the defendant to get

some kind of an easier sentence because he decided to commit all of these acts in the

same horrendous night."

       The court then stated that it had reviewed section 667.6(d) and found that it "shed

some light" on this issue:

          "In researching that issue, which I think is the crux of the whole
          sentencing, not only did I review the Rules of Court on this issue,
          but [section] 667.6, [subdivisions] (c) and (d) also seem to shed
          some light on this." (Italics added.)

       Immediately thereafter, the court read into the record the first two paragraphs of

section 667.6(d):

          "A full, separate, and consecutive term shall be imposed for each
          violation of an offense specified in subdivision (e) if the crimes

                                             17
          involve separate victims or involve the same victim on separate
          occasions.

          "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."
          (Italics added.)

       The court and the attorneys discussed the sequence of the commission of the sex

offenses. Defense counsel argued that "the digital penetration occurred [at]

approximately the time of the oral copulation." The prosecutor asserted that Galvan

"orally [copulated the victim] first. And then he digitally penetrated her, and she said that

hurt, so he stopped doing that, and then he tried to insert his penis in her vagina."

       Referring to the "Penal Code that the Court just cited" (§ 667.6(d)), Galvan's

attorney stated: "My interpretation of that would be, again, giving the defendant an

opportunity to form the ability to reflect upon his actions and then change his course of

conduct." (Italics added.)

       Applying section 667.6(d), defense counsel then argued that Galvan committed all

three sex offenses with "no opportunity to reflect." Specifically, defense counsel stated:

          "I would argue here that we have a stream of conduct beginning with
          the act of oral copulation and/or digital penetration, and then going
          to the rape and then the ejaculation.

          "That, again, went from one thing to another. The location did not
          change and only minutely . . . within the actual room did any of this
          location change. [¶] . . .

                                             18
          "I think the acts themselves went from one thing to another without
          any opportunity for any sort of pause or reflection. It was from the
          time of the starting of any of the acts until the ejaculation, from that
          time period there was no pause, there was no opportunity to reflect,
          and so it should be a singular course of conduct." (Italics added.)

       The court again referred to section 667.6(d) by indicating "the code" does not

require a break between crimes, and it states that time is not a determinative factor:

          "I don't think the code requires a break, like a long break in the
          action, in fact, it says the time is not really a determinative factor."

       The prosecutor agreed with the court's comments and also referred indirectly to

section 667.6(d) by referring to "time to reflect":

          "[T]hat would be my argument. . . . [T]hey need to have some time
          to reflect. [T]here is no set limit. It could be a second, it could be
          30 seconds, it could be a minute, it could be an hour, that is not
          something that is laid out for by the law. It is just some period of
          time, whatever that looks like to be able to reflect." (Italics added.)

       Immediately thereafter, the prosecutor argued that the facts in this case shows that

Galvan had time to reflect on whether he should continue sexually assaulting the victim:

          "[G]iven the fact how long this situation was going on and the fact
          that our victim the entire time is telling him, no, don't do this, and he
          is covering her mouth and he is moving from one thing to another.
          He had an ample amount of time in between pulling his pants down
          or pulling her shirt off or moving his face from her vagina to stick
          his fingers in her vagina to reflect on whether or not this is a good
          idea to continue." (Italics added.)

       The prosecutor then referred to section 654, rather than section 667.6(d), and

argued the events she had just mentioned were "separate and distinct":

          "Those are each separate and distinct events, [section] 654 should
          not apply."


                                              19
       The court then asked defense counsel, "[W]ould you agree at least factually

speaking that all three of these events were separate from one another? In other words,

the oral copulation and the digital penetration did not occur at exactly the same time?"

Counsel stated he believed they "flowed from one to the other."

       After further discussion, the court stated: "My recollection is that they were

separate, that he just went from one distinct act to another."

       The court noted that although the victim "continually plead[ed]" with Galvan to

stop, he continued to sexually assault her:

          "And I guess the biggest problem for Mr. Galvan is that while this is
          all occurring, you have the victim continually pleading for him to
          stop, and when something doesn't work, he is just moving on to
          something else." (Italics added.)

       The court brought the discussion back to the question of whether Galvan had "time

to reasonably assess his behavior," noting again that the victim was continually pleading

with him to stop and pulling away from him and also noting that Galvan repeatedly

threatened the victim and her sister's children during the span of about half an hour:

          "[I]t seems to me that given his statements, given the things he said
          to the victim and the way he went about terrorizing her that there
          was time to reasonably assess his behavior. [¶] It takes time, [he
          has] to stop what he was doing and start doing something else. The
          whole time she is telling him, pleading to the defendant not to hurt
          her, pulling away from him, struggling, so that too requires some
          thought to maintain the person where you want them so you could
          do these things to them. Continually to threaten her, threaten to
          hurt the kids if she doesn't cooperate, I mean this all, I agree with
          you is happening within the span of I think a half an hour." (Italics
          added.)




                                              20
       After finding that Galvan had time to reasonably assess his behavior, however, the

court mentioned section 654:

          "I don't know how I find that it is [section] 654. To me it all sounds
          like separate and distinct acts all close in time."

       Finally, the court found that the prosecutor's argument was "accurate" and legally

correct and then ruled it would impose consecutive sentences for Galvan's sex-offense

convictions.

       B. Pertinent Statutes

       1. Section 654

       Section 6543 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) If a

defendant suffers two convictions and punishment for one is barred by section 654, "that

section requires the sentence for one conviction to be imposed, and the other imposed and

then stayed." (Deloza, at pp. 591-592.)

       2. Section 667.6(d)

       Section 667.6(d) provides that a "full, separate, and consecutive term shall be

imposed" (italics added) for each conviction of an enumerated sex offense "if the crimes

involve separate victims or involve the same victim on separate occasions." (Ibid., italics

added.) Section 667.6(d) "constitutes a mandatory consecutive sentencing scheme



3       Section 654, subdivision (a) provides in part: "An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision."
                                            21
applicable only when a defendant has been convicted of two or more [enumerated sex

offenses]." (People v. Jones (1988) 46 Cal.3d 585, 595 (Jones).)

         In determining whether the crimes against a single victim were committed on

separate occasions, the court must decide whether the defendant had "a reasonable

opportunity to reflect upon his or her actions" (§ 667.6(d), italics added) between the

commission of one sex crime and another, but "nevertheless resumed [his] sexually

assaultive behavior." (Ibid.) "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." (Ibid.)

         C. Analysis

         Acknowledging that his trial counsel may have "misled" the court by making a

"section 654 argument," Galvan claims the court committed sentencing error in imposing

consecutive sentences for his convictions of counts 1 through 3 because the court

"applied a section 654 standard instead of the correct standard contained in [section

667.6(d)] in deciding whether to impose concurrent or consecutive life sentences." In

support of this claim, Galvan asserts that "[t]he court ruled that section 654 did not apply

to the oral copulation, penetration, and rape counts because the crimes were 'separate and

distinct.'" He argues that "the decision to apply concurrent or consecutive sentences"

under section 667.6(d) "does not entail an analysis whether the acts were 'separate and

distinct,' but whether the defendant had a 'reasonable opportunity to reflect' between the

acts."

                                             22
       We conclude Galvan's claim that the court committed sentencing error by applying

section 654 instead of section 667.6(d) in deciding whether to impose concurrent or

consecutive terms for his three sex-offense convictions is unavailing because his claim is

not supported by the record of the sentencing hearing. We agree that Galvan's defense

counsel misled the court by claiming at the commencement of the hearing that section

654 was "applicable" because, although the three sex offenses "were charged separately

and are separate convictions," they were "very intertwined with one another and

constitute[d] a singular course of conduct." Instead of objecting, the prosecutor

compounded the problem by later arguing that "[section] 654 should not apply" because

the offenses were "each separate and distinct events."

       However, as the Attorney General correctly argues on appeal, a fair reading of the

reporter's transcript of the sentencing hearing shows the court properly considered and

applied the mandate in section 667.6(d) requiring consecutive sentencing for forcible sex

crimes where the evidence shows that, "between the commission of one sex crime and

another, the defendant had a reasonable opportunity to reflect upon his . . . actions and

nevertheless resumed sexually assaultive behavior" (§ 667.6(d), italics added).

Specifically, as discussed more fully, ante, the court told the attorneys that it had

reviewed section 667.6(d) and found that it "shed some light" on this issue. The court

then read into the record the first two paragraphs of section 667.6(d). Soon thereafter,

during a discussion of the sequence of Galvan's sex offenses, defense counsel referred to

the "Penal Code that the Court just cited"─a clear reference to section 667.6(d))─and



                                              23
argued that Galvan committed the acts "without any opportunity for any sort of pause or

reflection." (Italics added.)

       The court then again referred, indirectly, to section 667.6(d) by stating that "the

code" does not require a break between crimes, and "it says the time is not really a

determinative factor." (§ 667.6(d) ["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."].)

       Continuing the discussion about whether Galvan should receive consecutive

sentences for his sex crimes under section 667.6(d), the prosecutor stated she agreed with

the court's comments, and she referred indirectly to section 667.6(d) by referring to "time

to reflect." Almost immediately thereafter, she argued the facts in this case showed

Galvan "had an ample amount of time in between pulling his pants down or pulling her

shirt off or moving his face from her vagina to stick his fingers in her vagina to reflect on

whether or not this is a good idea to continue." (Italics added.)

       After further discussion, the court found that Galvan had "time to reasonably

assess his behavior" and ruled it would impose consecutive sentences for Galvan sex

offense convictions.

       We conclude that, although defense counsel and the prosecutor took turns

engaging in a distracting discussion about whether section 654 applied, the record

establishes the court did consider and apply section 667.6(d). Galvan's claim that the

court failed to do so is without merit.

                                             24
               III. SUFFICIENCY OF THE EVIDENCE (COUNTS 1 & 2)

       Last, Galvan contends that, if this court concludes the trial court applied the

correct standard in imposing the consecutive sentences for his sex-offense convictions

(counts 1-3), the consecutive sentences imposed in counts 1 and count 2 under section

667.6(d) should be reversed─and the matter should be remanded for a determination of

whether concurrent sentences should be imposed as to those counts under section 667.6,

subdivision (c)─because there is insufficient evidence to support a finding that Galvan

had a "reasonable opportunity to reflect" between the forcible oral copulation of the

victim (count 2) and the forcible penetration of her vagina with a foreign object (count 1)

within the meaning of section 667.6(d). We reject this contention.

       A. Applicable Legal Principles

       As discussed, ante, section 667.6(d) "mandates full, separate, and consecutive

sentences for certain sex offenses 'if the crimes . . . involve the same victim on separate

occasions.'" (People v. Jones (2001) 25 Cal.4th 98, 104, quoting § 667.6(d), italics

added.) In determining whether enumerated crimes against a single victim were

committed on "separate occasions" within the meaning of section 667.6(d), a trial court

must decide whether the defendant had "a reasonable opportunity to reflect upon his or

her actions" (§ 667.6(d), italics added) between the commission of one sex crime and

another, but "nevertheless resumed [his] sexually assaultive behavior." (Ibid.)

       The courts in California have clarified that a trial court properly may find a

defendant committed enumerated sex offenses against a single victim on "separate

occasions"─during the same assaultive encounter─within the meaning of section

                                             25
667.6(d) if the evidence supports a finding that the defendant had a reasonable

opportunity to reflect upon his actions and nevertheless resumed his sexually assaultive

behavior. The California Supreme Court has explained that, "[u]nder the broad standard

established by [section 667.6(d)], the Courts of Appeal have not required a break of any

specific duration or any change in physical location" for a finding that sexual assaults

occurring during a continuous encounter with a victim constituted separate occasions.

(People v. Jones, supra, 25 Cal.4th at p. 104.)

       Thus, for example, as our Supreme Court has recognized, People v. Irvin (1995)

43 Cal.App.4th 1063, 1070 stands for the principle that a finding of "separate

occasions . . . does not require a change in location or an obvious break in the

perpetrator's behavior." (People v. Jones, supra, 25 Cal.4th at p. 104.) Similarly, People

v. Plaza (1995) 41 Cal.App.4th 377 concluded that five sex offenses─three counts of

forcible oral copulation, one count of rape, and one count of forcible vaginal penetration

with a foreign object─that all occurred during the same assaultive encounter in the

victim's apartment, with no break in the defendant's control over the victim, were all

"separate occasions" for the purposes of section 667.6(d). (Plaza, at pp. 381, 385.)

       Each case depends on unique facts, and in some cases courts have concluded the

evidence did not support a finding that the defendant had a reasonable opportunity to

reflect between sex acts committed in quick succession. (People v. Pena (1992) 7

Cal.App.4th 1294, 1316; People v. Corona (1988) 206 Cal.App.3d 13, 18.)




                                             26
       B. Analysis

       As pertinent here, the record shows that in sentencing Galvan to consecutive

prison terms for his convictions of counts 1 and 2, the court found under section 667.6(d)

that Galvan had a reasonable opportunity to reflect upon his actions between his

commission of the forcible oral copulation (count 2) and his commission of the forcible

penetration of the victim's vagina with a foreign object (count 1). We conclude the

evidence is sufficient to support the court's finding.

       As the Attorney General correctly points out, the record shows that before Galvan

committed these two forcible sex crimes, he told the victim he had a knife and repeatedly

threatened to kill her and her sister's two children if the victim screamed or did anything.

The victim testified that she continued to resist and fight him despite his threats.

       The victim also testified that when Galvan took off her pants and underwear, he

started licking her private part between her legs. She stated that while he was licking her,

she "just kept trying to push him away with [her] hands." When the prosecutor asked her

how many times she tried to push his head away, the victim replied, "It was all the time."

(Italics added.)

       The victim testified that Galvan then put his finger in her private part as she

continued to resist by trying to push him away.

       The foregoing evidence shows the victim did not passively submit to Galvan's

sexually assaultive acts after he repeatedly threatened her; rather, she actively resisted

those acts by continuously trying to push him away. We are persuaded that the victim's

active, continuous, physical resistance provided Galvan a reasonable opportunity to

                                              27
reflect upon his actions and stop his sexually assaultive behavior after he completed his

forcible act of oral copulation. The evidence establishes that despite this opportunity,

Galvan chose to resume his sexually assaultive behavior by physically overcoming the

victim's continuing resistance, repositioning his body, and committing the second offense

of forcibly penetrating the victim's vagina with his finger. As already discussed, a

finding of "separate occasions" within the meaning of section 667.6(d) does not require

proof of a change of location or an obvious break in a perpetrator's behavior. (People v.

Jones, supra, 25 Cal.4th at p. 104.) Thus, the fact that Galvan committed the two forcible

sex offenses during the same assaultive encounter, at the same location, and without an

obvious or protracted temporal break in his behavior is of no moment. The evidence

supports the court's finding that the two sex offenses were committed on separate

occasions for the purposes of section 667.6(d). For the foregoing reasons, we reject

Galvan's claim that "there was insufficient evidence of an opportunity to reflect between

the oral copulation and the penetration to support a consecutive terms [sic] under section

667.6[(d).]"

                                      DISPOSITION

       The judgment is affirmed.

                                                                                 NARES, J.
WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.




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