Filed 1/27/15 P. v. Arrendondo CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059610

v.                                                                       (Super.Ct.No. FCH07575)

JOHN EDWARD ARREDONDO, JR.,                                              OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Affirmed and remanded with directions.

         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

A. Natasha Cortina, Kristen Chenelia, and Minh U. Le, Deputy Attorneys General, for

Plaintiff and Respondent.




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       Defendant and appellant John Edward Arredondo appeals after a resentencing

hearing, in which the trial court imposed full, separate, consecutive sentences for two of

the charged sex offenses, finding that they had taken place on “separate occasions” within

the meaning of Penal Code former section 667.6, subdivision (d). Defendant argues that

he had no reasonable opportunity to reflect on his actions between the commission of one

offense and the other, and that the trial court erred in imposing consecutive sentences.

We affirm the sentence, but remand with directions to correct clerical errors in the minute

order of the resentencing hearing and in the abstract of judgment.

                        FACTS AND PROCEDURAL HISTORY

       We have taken judicial notice of the record and decision in the prior appeal in this

case, People v. Arredondo (Aug. 17, 2012, E053020 [nonpub. opn.]). The underlying

offenses were described in our opinion in People v. Arredondo, supra, E053020:

       In 2005, the victim, Theresa Z., was asleep in her bedroom at 3:00 a.m. when she

awoke to find a man standing over her. He had his head wrapped, and he wore heavy

work gloves. The victim started to scream, and the man put his hand over her mouth.

Fearing for her children, and also thinking that the man might kill her, the victim flailed,

kicked and screamed again. Suddenly, the man ran away. The victim called police.

       The officers who responded found a beer can outside the back door of the victim’s

bedroom. The can had defendant’s fingerprints on it.

       Defendant was charged with one count of first degree residential burglary

(count 1) and assault with intent to commit rape, sodomy or oral copulation (count 2).



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       After defendant’s arrest for the 2005 crimes, he was also charged with an earlier

incident that had happened in 2002. Iris S. was at home in her bedroom, while her

husband was still awake in the living room. The victim had her infant child in bed with

her, when she was awakened by someone sucking on her breast. At first she thought it

was her husband, but then realized that it was a stranger, later identified as defendant.

Defendant told the victim that she was beautiful and that he had been watching her. She

asked him why he was there. Defendant started to remove the victim’s clothes and

rubbed her body. She resisted when he started to pull off her underwear, but he pulled

harder and removed them. Defendant used his hand to masturbate the victim, which was

physically painful for her. Defendant then made the victim sit up on the edge of the bed

and, pulling her head, forced her to orally copulate him. The victim did not cry out

because she was afraid defendant would hurt the baby or her husband. Defendant then

moved the victim’s hand onto his penis, and made her masturbate him until he ejaculated

on her chest. Defendant hugged the victim and said the situation was “weird,” because

he had a wife and children.

       After defendant left, the victim went to the hospital. The forensic examination

showed the victim had sustained genital abrasions and a tear consistent with a penetration

injury. Samples of the ejaculate were used to obtain a DNA profile for the perpetrator.

That profile was later matched to defendant.

       The 2002 events resulted in charges of forcible oral copulation (count 3), sexual

penetration by a foreign object (count 4) and first degree residential burglary (count 5).



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       Defendant testified in his own behalf at trial. Defendant admitted he had several

prior arrests for peeping. He blamed this activity on his abuse of drugs; he would feel

agitated and would walk around an apartment complex. Curiosity led him to look into

the windows of people’s apartments. Defendant also had prior convictions for residential

burglary with intent to commit theft, commercial burglary, receiving stolen property, and

possession of a fraudulent check.

       As to the charges for the 2002 incident, defendant claimed he could not have had

sex because he had suffered a work injury to his testicles. He lost one testicle and the

other was quite painful. He filed a workers’ compensation claim and underwent

treatments between March 2002 and July 2002. Although he was physiologically able to

achieve erection by December 2002 (the charged offenses in counts 3, 4 and 5 took place

in December 2002), he was still undergoing therapy to overcome his fear of sexual

relations with his wife.

       Defendant did admit, however, going to the victim’s apartment complex at

6:00 a.m. in December 2002. He was drawn to the victim’s apartment because it had a

nice view of the sunrise. Defendant claimed that, at one point, he turned and looked into

the window and saw the victim make eye contact with him as she was touching herself.

Defendant said that he started to leave, but the victim opened the sliding glass door and

invited him inside. Defendant indicated that all the sexual contacts with the victim were

consensual.




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       Defendant denied any connection to the 2005 offenses, and said that he never

broke into the victim’s home. He explained his fingerprint on the beer can outside her

home by saying that he had gone to see a house that was for rent in the neighborhood.

       The jury did not believe defendant, and found him guilty as charged on all five

counts. The jury also found true allegations as to counts 3 and 4 that each was committed

during the course of a first degree residential burglary, and that another person other than

an accomplice was present (one strike allegations). The court, in a bifurcated hearing,

found true that defendant had previously been convicted of a serious or violent strike

felony offense.

       The court sentenced defendant to a determinate term of 12 years (six years

doubled) on count 1. The sentences on counts 2 and 5 (the burglary counts) were stayed

pursuant to Penal Code section 654. Defendant also received a consecutive indeterminate

term of 100 years to life; the court imposed terms of 25 years to life on each of counts 3

and 4, under the one strike law for sex offenses, doubled to 50 years to life under the

“Three Strikes” law.

       Defendant appealed, contending that the trial court erred in imposing two separate

sentences under the one strike law. The People conceded the error, under the version of

Penal Code section 667.61, subdivision (g), that was in effect at the time of defendant’s

offenses. At the time of the offenses in 2002, Penal Code former section 667.61,

subdivision (g), provided: “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



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during a single occasion. . . . Terms for other offenses committed during a single

occasion shall be imposed as authorized under any other law, including Section 667.6, if

applicable.” In People v. Jones (2001) 25 Cal.4th 98, the California Supreme Court

construed a “single occasion” to mean “committed in close temporal and spatial

proximity.” (Id. at p. 107.) Counts 3 and 4 took place in one location, the victim’s

bedroom, within a very short time frame. Defendant manually penetrated the victim’s

vagina as she was lying on the bed. Then he made her sit up on the edge of the bed and

orally copulate him. There is no evidence as to any lapse of time between the two events

constituting counts 3 and 4. Both offenses took place in close temporal and spatial

proximity. The People agreed that defendant could be sentenced to only one one strike

sentence.

       However, the People also argued that the finding of a “single occasion” for

purposes of the one strike law did not preclude consecutive sentences on counts 3 and 4,

if they could be found to have taken place on “separate occasions” within the meaning of

Penal Code former section 667.6, subdivision (d). The California Supreme Court in

People v. Jones, supra, 25 Cal.4th 98 had left open the possibility of consecutive

sentencing under Penal Code former section 667.6, subdivision (d), explaining that the

meaning of a “single occasion” in Penal Code former section 667.61, subdivision (g), had

a different import from the term “separate occasions,” as used in Penal Code former

section 667.6, subdivision (d). As used in Penal Code former section 667.6,

subdivision (d), the term “separate occasions” denoted the concept “whether the



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defendant had a reasonable opportunity for reflection.” (People v. Jones, supra,

25 Cal.4th 98, 105.) A finding that a defendant commits sex crimes on separate

occasions “does not require a change in location or an obvious break in the perpetrator’s

behavior . . . .” (Id. at p. 104.)

       We remanded for the trial court to select which of the two offenses, count 3 or

count 4, would be subject to a one strike sentence, and to impose a determinate sentence

as to the other count. We said, “The court will then have the opportunity to decide

whether the determinate offense occurred on a ‘separate occasion’ (i.e., whether

defendant had a reasonable opportunity to reflect before continuing the sexual assault)

from the one-strike offense, and thus whether it should be sentenced consecutively to the

one-strike offense, under Penal Code section 667.6, subdivision (d).” (People v.

Arredondo, supra, E053020 at p. 15.)

       On remand, the trial court found that the offenses in counts 3 and 4 occurred on

separate occasions for purposes of Penal Code former section 667.6, and resentenced

defendant as follows: a determinate term of 12 years on count 1; a consecutive term of

25 years to life on count 3 (one strike sentence), which was doubled to 50 years to life

under the Three Strikes law; and a consecutive sentence on count 4, consisting of the

aggravated term of eight years, doubled to 16 years under the Three Strikes law.

Sentences for the remaining counts were imposed and stayed.

       Defendant has again appealed. This time, he contends the evidence was

insufficient to support the trial court’s finding that he had a reasonable opportunity to



                                              7
reflect on his conduct between penetrating the victim with his hand (count 4) and forcing

her to orally copulate him (count 3).

                                        ANALYSIS

                                   I. Standard of Review

       When a trial court makes findings that charged crimes occurred on “separate

occasions,” we review those findings under the substantial evidence standard. (See

People v. Chan (2005) 128 Cal.App.4th 408, 424.) Substantial evidence is evidence that

is reasonable in nature, credible, and of solid value. (Hill v. National Collegiate Athletic

Assn. (1994) 7 Cal.4th 1, 51.)

 II. Substantial Evidence Supported the Trial Court’s Findings that Count 3 and Count 4

                           Took Place on “Separate Occasions”

       Penal Code former section 667.6, subdivision (d), provided in part: “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.” (Accord,

People v. Jones, supra, 25 Cal.4th 98, 105; People v. Garza (2003) 107 Cal.App.4th

1081, 1092.)



                                              8
       Defendant urges that the offenses in counts 3 and 4 took place as part of one

continuous course of sexual conduct, and therefore were not “separate occasions.” He

also points to People v. Corona (1988) 206 Cal.App.3d 13, and People v. Pena (1992)

7 Cal.App.4th 1294, as support for the notion that a lack of cessation between sexually

assaultive acts, or a mere change of position between different sexual acts, is insufficient,

of itself, to provide a reasonable opportunity for reflection.

       However, a finding of separate occasions does not require a break of any specific

duration or a change in physical location. (People v. Jones, supra, 25 Cal.4th 98, 104-

105, citing People v. Irvin (1996) 43 Cal.App.4th 1063, 1071, and People v. Plaza (1995)

41 Cal.App.4th 377, 385.)

       Here, the victim testified that she first awoke to someone sucking on her nipple.

At first, she thought it was her husband, and said his name. Defendant answered,

pretending he was the victim’s husband, but the victim knew immediately it was not her

husband’s voice. Defendant then removed the victim’s clothes. The victim resisted

when defendant began to pull off her underwear, but he pulled more forcefully and

removed them. Defendant then rubbed the victim in the vaginal area, and penetrated her

with his finger or a foreign object. The penetration was very painful for the victim.

       The victim was then asked the following question:

       “Q: Now, at some point in time, did you—actually, as he was doing this, [i.e.,

penetrating the victim] did you actually inform the intruder about something in regards to




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your period?” The victim related that she told defendant that she was menstruating at the

time. Defendant said, “ ‘I don’t care.’ ”

       After defendant had penetrated the victim, he pulled her up to a sitting position.

Pressing on her head and shoulders, he guided her head toward his penis, and forced the

victim to orally copulate him. Defendant was wearing black sweatpants1 and had a t-shirt

pulled up to cover his face. The victim recalled that defendant had his pants pulled down

just enough to expose his penis. The victim resisted by opening her mouth, letting

defendant’s penis fall out of her mouth. At some point, defendant put the victim’s hand

onto his penis and made her masturbate him until he ejaculated onto her chest.

       After defendant ejaculated onto the victim, he wiped both the victim and himself

with his t-shirt, or with a towel taken from the victim’s bathroom; the victim also used a

shirt to wipe the ejaculate from her body. Defendant then made the victim stand and give

him a hug; he remarked, “ ‘This is weird, huh? I have a wife and child.’ ” Defendant left

by the front door of the apartment.

       The People point out that the exchange between the victim and defendant, when

she told him she was menstruating and he said that he did not care, shows that defendant

had an opportunity to reflect on his conduct. Defendant necessarily reflected on his

answer to the victim’s remark; in the same way, defendant shifted his conduct, most

likely in response to the information that the victim was bleeding menstrually, from

       1  Other evidence indicated that, when defendant had left, the victim might have
told her husband that the perpetrator wore white pants or beige pants. At another point,
the victim testified that she did not remember the color of defendant’s sweatpants.


                                            10
digital penetration to pulling the victim to a sitting position and forcing her to orally

copulate him. Defendant responds that the record does not disclose when the

conversation took place, but only that it took place at some time during a continuous

sexual assault.

       Defendant is mistaken. The context of the initial question to the victim about

telling defendant that she was on her period makes clear that the victim told defendant

she was menstruating “as he was doing this,” i.e., as he was inserting a finger in the

victim’s vaginal area, and causing her pain. Defendant then responded that he did not

care. Defendant also then altered the nature of his sexual conduct, pulling the victim up

and forcing her to orally copulate him. In addition, defendant necessarily would have had

to adjust his own clothing, pulling his pants down far enough to expose his penis, to

achieve the objective of having the victim orally copulate him.

       The evidence is sufficient to support a finding that defendant had a reasonable

opportunity to reflect between the act of digital penetration (count 4) and the oral

copulation (count 3), and indeed that reflection on the victim’s menstruation caused

defendant to alter his behavior, changing one kind of assault, in which defendant was

touching the victim’s menstrual fluid, for a different one, in which there was no such

contact.

       The trial court’s determination that the two offenses took place on separate

occasions was supported by substantial evidence. The court properly imposed a full

consecutive sentence on count 4.



                                              11
    III. Additional Issues: Correction of the Minute Order and Abstract of Judgment

       At resentencing, the trial court orally imposed sentence, as indicated above,

consisting of a determinate term of 28 years (12 years on count 1, plus an upper term of

eight years, doubled to 16 years, on count 4, consecutive to count 1), plus an

indeterminate term of 50 years to life (25 years to life, doubled to 50 years to life, on

count 3). As noted, the court also imposed and stayed sentences on the remaining counts.

       However, the minute order erroneously indicates that the trial court imposed an

additional term of 25 years to life on count 4, when no such additional sentence was

imposed. In addition, the minute order incorrectly states that the court imposed an

indeterminate term of 16 years to life on count 4, consecutive to count 3, when in fact the

court imposed a determinate term on count 4, consecutive to count 1. The minutes also

recite that defendant was sentenced to an aggregate term of 91 years to life; defendant

was actually sentenced to an aggregate indeterminate term of 78 years to life. The

abstract of judgment reflects the same errors, as well as an incorrect indication that the

sentence was imposed at an initial sentencing hearing, rather than upon resentencing after

a decision on appeal.

       This court has inherent power to correct clerical errors and to order the abstract of

judgment amended. (People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1; People v.

Hong (1998) 64 Cal.App.4th 1071, 1075-1076.) We shall direct the trial court to prepare

a corrected minute order and an amended abstract of judgment to properly indicate

defendant’s actual sentence as pronounced by the court on the record.



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                                     DISPOSITION

       The judgment is affirmed. The matter is remanded with directions, however, to

correct errors in the minute order of the resentencing hearing, and to amend the abstract

of judgment to correctly reflect defendant’s actual sentence as pronounced by the court.

A copy of the amended abstract of judgment shall be forwarded to the Department of

Corrections and Rehabilitation.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               McKINSTER
                                                                                            J.
We concur:



RAMIREZ
                       P. J.



RICHLI
                          J.




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