Filed 12/4/19 P. v. Smith CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN TODD SMITH,

Defendant and Appellant.

C087068

(Super. Ct. No. 17FE016300)

A jury convicted defendant Dustin Todd Smith of rape by means of force or fear, oral copulation by means of force or fear, and assault with the intent to commit rape in the commission of a burglary. The trial court sentenced him to 52 years to life in prison, including 25 years to life for the forcible rape, and a consecutive 25 years to life for the forcible oral copulation.

Defendant now contends there is insufficient evidence to support the trial court’s finding that the oral copulation and rape were committed on separate occasions, and therefore the matter should be remanded for resentencing because the imposition of consecutive sentences was discretionary rather than mandatory. Disagreeing with defendant’s claim of insufficient evidence, we will affirm the judgment.

BACKGROUND

On the morning of her 79th birthday, the victim woke up and saw a stranger — defendant — standing next to her bed. She was terrified but defendant prevented her from escaping and lay down in the bed next to her. Defendant licked the victim’s breasts and orally copulated her while holding on to her. According to the victim, defendant then got up and, before engaging in intercourse with her, said “my dick is made for your vagina.” The victim believed defendant entered the room without pants on, saying “he never got off of me or left me to put — to take his pants off,” and she never saw him take any clothes off.

Defendant also testified, and his testimony asserted some different details. He said he just wanted to talk to somebody, so he removed the screen on the victim’s bathroom window and climbed into the victim’s home. When he lay down with the victim in her bed, he was wearing a tank top and swim trunks; he believes he had removed his sandals and cap before getting on the bed. Defendant explained that he orally copulated the victim to lubricate her for sexual intercourse. To do so, he knelt on the carpet at the edge of the bed. According to defendant, he orally copulated the victim for about five to 10 minutes. After performing oral sex, defendant took his swim trunks all the way off while he was on the floor at the side of the bed. Then he got on the bed and licked the victim’s breast for a few minutes. Defendant then changed to a missionary position and had intercourse with the victim. He said he believed the acts were consensual.

The jury convicted defendant of rape by means of force or fear (Pen. Code, §§ 261, subd. (a)(2)), oral copulation by means of force or fear (former § 288a, subd. (c)(2)), and assault with the intent to commit rape in the commission of a burglary (§ 220, subd. (b)).

At sentencing, the trial court found that defendant committed the oral copulation and rape on separate occasions within the meaning of section 667.6, subdivision (d), making the imposition of consecutive sentences mandatory. The trial court concluded defendant had a reasonable opportunity to reflect between the commission of the oral copulation and rape, explaining: “I have carefully considered the evidence that was presented, primarily the defendant’s own words. And the record indicates the defendant stated that he orally copulated [the victim] for five to 10 minutes, after which he did make a comment about her body part. He testified he then rose up from the floor. Then he leaned over her and licked her right breast for a few minutes. He also after orally copulating her lowered his swim trunks all the way off when he was on the side of the bed. It was after all those actions, standing up, lowering his swim trunks, licking her breast for a few minutes, making the comment, did he then, he testified, started to rape her, engage in sexual intercourse. Based on that, those facts the court finds [defendant] did have a reasonable opportunity to reflect. After he orally copulated her, he could have stopped. He did not have to lower his swim trunks. He did not have to lick her breasts.”

The court imposed a total term of 52 years to life, including 25 years to life for the rape, and a consecutive sentence of 25 years to life for the oral copulation.

DISCUSSION

Defendant contends there is insufficient evidence to support the trial court’s finding that the oral copulation and rape were committed on separate occasions, and therefore the matter should be remanded for resentencing because the imposition of consecutive sentences was discretionary rather than mandatory.

The trial court sentenced defendant to consecutive sentences for the forcible oral copulation and forcible rape pursuant to section 667.6, subdivision (d), which provides in pertinent part that a consecutive term shall be imposed for each offense if the crimes 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.” (§ 667.6, subd. (d).) Although defendant relies on older cases to support his arguments on appeal, in People v. Solis (2012) 206 Cal.App.4th 1210 this court rejected a vagueness challenge to the statutory “separate occasions” language after reviewing more recent caselaw, explaining that a defendant has a “reasonable opportunity to reflect” when the offenses are separated by an activity that interrupts the assault and affords the perpetrator an opportunity to reflect on what he or she is doing. (Id. at p. 1220.) The interrupting activity need not be of any particular duration and need not involve movement. (Ibid.)

Once a trial judge finds that a defendant committed offenses on separate occasions, we may reverse only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection before resuming his criminal activity. (People v. Garza (2003) 107 Cal.App.4th 1081, 1092.)

In this case it was reasonable for the trial court to find that after defendant orally copulated the victim, he had an opportunity to reflect before raping her. Although the victim made some contradictory statements, the trial court could have reasonably credited her testimony that after the oral copulation, defendant “got up” and, before engaging in intercourse with her, paused to say “my dick is made for your vagina.” Defendant’s testimony also identified an opportunity for reflection between crimes. After kneeling on the floor to forcibly perform oral sex, he stopped and changed position to take his swim trunks all the way off. Then he got on the bed and licked the victim’s breast for a few minutes, engaging in a separate assault for which he was convicted. Then, he changed position again, moving to a missionary position to rape the victim. Although defendant claims it was unreasonable for the trial court to use defendant’s testimony at sentencing when the jury clearly credited the victim’s testimony and rejected defendant’s version of events, “California law affords the trial court broad discretion to consider relevant evidence at sentencing. . . . Nothing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted . . . . [¶] . . . Unless specific findings are made, ‘the jury cannot be said to have “necessarily rejected” any facts when it returns a general verdict . . . .’ ” (People v. Towne (2008) 44 Cal.4th 63, 86, quoting United States v. Watts (1997) 519 U.S. 148, 155 [136 L.Ed.2d 554].) On this record it was reasonable for the trial court to find that defendant had an opportunity to reflect between the oral copulation and rape, and there is sufficient evidence that the oral copulation and rape occurred on separate occasions.

In his reply brief, defendant claims the prosecutor’s closing argument was consistent with the notion of a continuous sexual assault. But we do not address the argument because defendant failed to assert it in his opening brief. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 679.)

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

BUTZ, Acting P. J.

/S/

HOCH, J.