P. v. Townsend

Filed 12/21/06 P. v. Townsend CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CECIL TOWNSEND, JR.,
Defendant and Appellant.
B186647
(Los Angeles County
Super. Ct. No. BA250166)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Larry P. Fidler, Judge. Affirmed as modified and remanded.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and
David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
_______________

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Cecil Townsend, Jr., appeals from the judgment entered upon his convictions
by jury of five counts of oral copulation (Pen.Code, § 288a, subd. (c)(2), counts 1, 4, 5,
9 & 13),1 four counts of forcible rape (§ 261, subd. (a)(2), counts 2, 6, 10 & 14), two
counts of robbery (§ 211, counts 11 & 15), two counts of false imprisonment (§ 236,
counts 8 & 16), as lesser included offenses of kidnapping (§ 209, subd. (b)(1)), and
one count each of attempted second degree robbery (§§ 664/211, count 7) and assault
with a deadly weapon (§ 245, subd. (a)(1), count 12).2 The jury also found to be true
in connection with each of the sex offenses, the allegation that appellant personally
used a dangerous or deadly weapon or firearm in the commission of the offense within
the meaning of section 667.61, subdivision (e)(4), in connection with counts 1, 2, 5, 6,
9, 10, 13, and 14, the allegation that the offense was committed against multiple
victims within the meaning of section 667.61, subdivision (e)(5), and, with regard to
counts 7, 11 and 15, the allegation that appellant personally used a deadly or
dangerous weapon within the meaning of section 12022, subdivision (b)(1). The trial
court sentenced appellant to an aggregate state prison term of 222 years four months to
life. Appellant contends that (1) there was insufficient evidence of force to support the
rape and oral copulation convictions, (2) the trial court erred in imposing 25-years-to-
life sentences with respect to counts 1, 2, 5, 6, 9, 10, 13, and 14 because the jury found
only one sentencing circumstance under section 667.61, subdivision (e), (3) the trial
court erred in imposing a 15-years-to-life sentence with respect to count 4 because the
jury found no sentencing circumstances under section 667.61, subdivision (e), (4) the
trial court erred in imposing multiple life terms on sex offenses involving the same
victims during the same occasion at a single location, and (5) imposition of
consecutive sentences violated appellant’s constitutional rights under the Sixth and
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2 Appellant was acquitted of burglary (§ 459, count 3).

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Fourteenth Amendments to the United States Constitution to a jury determination
beyond a reasonable doubt of facts necessary to increase his sentence beyond the
statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296
(Blakely).
We modify the judgment, remand for resentencing and affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
Latya C.
We review the evidence in accordance with the usual rules on appeal. (See
People v. Snow (2003) 30 Cal.4th 43, 66.) On December 1, 2002, prostitute Latya C.
lived at the Orchard Motel, on 108th Street and Figueroa in Los Angeles. She had a
party in her room from approximately 10:00 p.m. to midnight. After undressing and
putting on her robe, she heard a loud knock on the door. She opened the door,
assuming that it was one of her friends who had attended the party. Appellant forced
his way into the room, holding a black automatic handgun.
Once inside, appellant pulled out a long “cutting knife” and demanded Latya
open her robe, threatening to cut her if she did not.3 He “was very aggressive and he
basically told [Latya] that if [she] did exactly what he told [her] to do, that [she] would
live.” He forced her to orally copulate him and then raped her without using a
condom. Latya felt appellant ejaculate in her vagina, although he told her he had
withdrawn his penis before ejaculating so there would be no evidence linking him to
the rape. After the rape, Latya felt appellant poke the lower part of her vagina with the
knife, drawing blood.
3 Latya told a detective that appellant had the gun in one hand and a knife in the
other when she opened the door.

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After the sex acts, appellant rummaged through Latya’s room. He took her
wallet containing $28 and $300 from a shoebox and left. Latya followed him and saw
that he drove away in a green Saturn. She telephoned the police.4
A rape examination of Latya revealed two tears on her vagina, consistent with
blunt force trauma, but no evidence of a sharp force injury. DNA analysis of evidence
taken from Latya’s body and appellant’s blood sample matched.
Davera W.
On January 25, 2003, at approximately noon, prostitute Davera W. was walking
on Figueroa near 89th Street, in Los Angeles. Appellant pulled up beside her in a
beige Saturn and offered her a ride. She accepted and appellant took her to a liquor
store so she could buy cigarettes. After doing so, she returned to the car and asked for
a ride to her mother-in-law’s house. On the way, appellant offered $20 for sex.
Davera refused because the offer was too low, and appellant looked dirty.
Appellant drove to an isolated area, got a big “kitchen knife” from the left side
of the passenger’s seat and made Davera remove her clothes, or he would “shank [her]
ass.” Davera begged appellant not to kill her. Appellant took $60 from inside her bra.
He forced her to orally copulate him and then raped her, without using a condom. He
then made her dress and get out of the car, then drove off.
Davera telephoned the police and reported that she had been kidnapped and
raped. She denied being a prostitute, fearing the police would not take her seriously if
they knew she was a prostitute who had voluntarily entered a car. A rape examination
of Davera revealed abrasions and bruising of the lips of her vagina probably caused by
blunt force trauma consistent with the claim of rape. It also revealed broken blood
4 Latya told police that appellant ejaculated into his hand and not in her vagina.
She failed to mention that appellant poked her in her vagina with the knife and that
money was stolen from a shoebox. At the preliminary hearing, she testified she did
not keep money in a shoebox.

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vessels along Davera’s soft pallet, consistent with forced oral copulation. Sperm
found in Davera’s vagina matched appellant’s DNA.
Ebony B.
On April 5, 2003, at approximately 9:00 p.m., prostitute Ebony B. was walking
near 96th and Figueroa. Appellant approached her in a green Saturn and offered
money for sex. She agreed to orally copulate him for $30.
Ebony entered appellant’s car, and he drove to a dark, secluded area near the
110 Freeway. He parked the car, pulled a large butcher knife with a thick blade from
his side door pocket and demanded Ebony’s money. When she said she had none, he
told her to get undressed so he could search her, and that she would live if she did
everything he said. He threatened to stab her if she did not. Finding no money, he
forced Ebony to orally copulate him at knife point. He then raped her, without using a
condom, despite her request that he do so, ejaculating inside of her. He told her the car
was stolen so it could not be traced to him. He made her get dressed, and get out of
the car as it moved.
Ebony did not report the incident to police until several months later because
she regarded rape and robbery as professional risks of prostitution and did not think
the police would believe her. When later reporting an unrelated crime to police, she
mentioned this incident and identified appellant as her attacker in a photographic
lineup.
Sharon T.
On May 8, 2003, Sharon T. had known appellant three or four years because
she was an old friend of his wife. He owned a green Saturn. That afternoon, she was
feeling ill, so she dressed casually in old jeans, a baseball cap, flip flops and no
makeup. Sharon got off of a bus in an area known for prostitution, but denied being a
prostitute. Appellant pulled alongside her in his car and asked if she wanted a ride,
which she accepted because she knew him and recognized his car.

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Appellant told Sharon he had to run a few errands before taking her home. He
parked his car along Gage Street, pulled out a large butcher knife from the left side of
the car, told her to be quiet and do what he said. He threatened to hurt her if she did
not remove her clothing and perform oral sex. She complied and then realized that
appellant did not recognize her. Sharon was crying and told appellant that it was too
hot in the car. Trying to open the window, appellant accidentally unlocked the
passenger door, and Sharon fell from the car naked. Appellant drove away with her
shoes, bra and purse. Sharon dressed in the alley and walked out of the alley barefoot
over broken glass.
A taxicab stopped and asked if Sharon was okay, offering her a ride. The taxi
took her directly to appellant’s house where she told his wife what happened. About
20 to 30 minutes later, appellant arrived in a green Saturn wearing a different outfit.
When Sharon described what appellant did to her, he acted like he did not know what
she was talking about. Appellant accused her of being crazy and on drugs. After 10
minutes, Sharon left and telephoned police who arrived shortly.
Sharon underwent a sexual assault examination at which the nurse found that
her feet were “extremely dirty.” No physical evidence proving or disproving a sexual
assault was found. Physical evidence obtained from Sharon matched appellant’s
DNA.
Veronica A.
Veronica A. was staying with her husband in a motel in Los Angeles. She
denied being a prostitute, although the motel was in an area frequented by prostitutes.
On June 28, 2003, after midnight, she was walking to the motel when appellant called
to her, “Hey, pretty girl,” from a dark-colored car. She ignored him. Appellant exited
the car, came up behind Veronica and held a “bone-cutting knife” to her throat. He
threatened to kill her, forced her into the car and drove to an isolated area.
Appellant held the knife to the back of Veronica’s head and searched her
clothes for money, finding more than $100. He also took her purse with a cell phone

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and other items. With the knife still at the back of her neck, he demanded that she
orally copulate him, which she did. He told her that if she did what he said, she would
live. He then raped her without a condom, ejaculating after withdrawing his penis. He
had told her he would not ejaculate inside of her because that would leave evidence.
He told her he had a gun and threatened to shoot her, although she never saw a gun.
Appellant then forced Veronica out of the car, told her not to look at the car, and drove
away. Veronica went home and telephoned the police and paramedics.
A nurse practitioner performed a sexual assault examination of Veronica. The
nurse observed linear abrasions and tenderness in Veronica’s vaginal area, consistent
with forced sexual assault. Physical evidence taken from Veronica’s body matched
appellant’s DNA.
The defense’s evidence
Appellant testified in his own defense. He was on felony probation at the time
of the charged offenses. In each case, he testified that the victim was a prostitute
whom he hired to perform consensual sex acts. Once the sex acts were finished, he
robbed his victims at knife point. He denied raping them at knifepoint or having a
gun.
DISCUSSION
I. Sufficiency of evidence
Appellant was convicted of four counts of forcible rape and five counts of
forcible oral copulation. Each of his five victims testified that he used a knife in the
attack. Only Latya testified that he also used a gun, and Veronica testified that he
claimed to have a gun, but she never saw it.
The jury’s completed verdict forms for the nine sex offenses each contained the
following: “We further find the allegation that defendant personally used a dangerous
or deadly weapon or firearm in the commission of the present offense, pursuant to

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Penal Code Section 667.61(a), (b) and (e) to be true,”5 and “We further find that in the
commission of the above offense, the defendant CECIL TOWNSEND, JR. used a
firearm and deadly weapon, to wit: a knife, within the meaning of Penal Code
Section 12022.3(a) to be not true.”6
The trial court found the weapons findings to be in conflict and reconciled them
by ruling that the not true finding with regard to section 12022.3 invalidated the true
finding with regard to section 667.61, subdivision (e)(4).
Appellant contends that there is insufficient evidence to support the jury’s
verdicts on the sex offenses. This contention is premised upon his theory that the
jury’s finding under section 12022.3, that he did not use a weapon in committing the
sex crimes, invalidated the true finding of weapon use as a circumstance under
section 667.61, subdivision (e)(4). Because the use of a weapon was the only evidence
of force, he argues that the prosecution failed to prove beyond a reasonable doubt the
force element of the rape and oral copulation charges.
Before reaching the sufficiency of the evidence claim, we must first consider
whether there was inconsistency in the jury’s weapons findings, and, if so, its legal
impact on his conviction. The firearm enhancement in section 12022.3,
subdivision (a) applies if the defendant uses “a firearm or a deadly weapon” (italics
added) in committing specified sex offenses. The verdict form submitted to the jury
5 The section 667.61 allegation in count 4, used slightly different wording, stating
that it was “pursuant to Penal Code section 667.61 (b).”
Section 667.61, subdivision (e)(4) provides: “The defendant personally used a
dangerous or deadly weapon or firearm in the commission of the present offense in
violation of Section 12022, 12022.3, 12022.5, or 12022.53.”
6 Section 12022.3 states in part: “For each violation or attempted violation of
Section 261, 262, 264.1, 286, 288, 288a, or 289, and in addition to the sentence
provided, any person shall receive the following: [¶] (a) A 3-, 4-, or 10-year
enhancement if the person uses a firearm or a deadly weapon in the commission of the
violation.”

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with regard to that enhancement was unwittingly worded to require that the jury find
that appellant used a “firearm and deadly weapon.” (Italics added.) With that
wording, the allegation was true only if appellant used both a knife and a firearm. The
jury’s untrue finding does not, therefore, necessarily reflect that appellant did not use a
weapon. It could reflect that he failed to use a firearm or, alternatively, failed to use a
knife. It would appear from the evidence that the jury rendered the untrue finding
because of the weak and equivocal evidence as to the use of a gun.
Each victim testified to appellant’s use of a “butcher’s knife” or “kitchen
knife,” to force them to engage in sex acts. Only Latya claimed that he also used a
gun. But she did not consistently describe the gun, and no gun was ever found. Latya
also testified that appellant held a gun when she answered the door to her room, and
only took out a knife after he was inside. But she had previously told a detective that
appellant held a gun in one hand and a knife in the other when she opened the door.
Given that only Latya claimed that a gun was used, and the ambiguities in that
testimony, it is likely the jury found that appellant did not use a gun in any of the
attacks but used only a knife, which explains their finding that the section 12022.3
allegation as set forth in the verdict forms was untrue.
This analysis reconciles the untrue section 12022.3 finding with the true
section 667.61, subdivision (e)(4) finding. As set forth on the verdict forms, the latter
allegation required only that appellant used a knife or a gun in forcing his victims to
engage in sex acts. If the jury found that appellant used only a knife, it would have
had to have found the section 667.61, subdivision (e)(4) circumstance true.
While the trial court erroneously considered the weapons findings to be in
conflict, it nonetheless correctly concluded that the jury’s section 12022.3 untrue
finding invalidated the section 667.61, subdivision (e)(4) true finding. Section 667.61,
subdivision (e)(4) requires a finding of firearm use under one of the specified firearm
statutes, including section 12022.3. Such a finding was not made and with the true

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finding on the section 667.61, subdivision (e)(4) invalidated, there was no jury finding
that appellant used any weapon.
While there is no conflict between the jury’s two weapons findings, as
corrected by the trial court, they are inconsistent with appellant’s conviction of the sex
offenses, which require the use of “force, violence, duress, menace, or fear.” (§§ 288a,
subd. (c)(2); 261, subd. (a)(2).) The evidence established that the use of a weapon was
the mechanism by which the force, fear, duress or menace was instilled. We must
therefore determine the impact, if any, of this conflict on the sex convictions.
Section 954 provides in part that “[a]n acquittal of one or more counts shall not
be deemed an acquittal of any other count.” These principles are applicable in
resolving an inconsistency between a not true finding on an armed allegation and a
guilty verdict. (See People v. Federico (1981) 127 Cal.App.3d 20, 32 (Federico).)
In People v. Lewis (2001) 25 Cal.4th 610, 655-656, our Supreme Court
concluded that even if it viewed the sentencing allegations in several of the counts as
inconsistent, “defendant is not entitled to reversal on this basis. It is well settled that,
as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.]
The United States Supreme Court has explained: ‘[A] criminal defendant . . . is
afforded protection against jury irrationality or error by the independent review of the
sufficiency of the evidence undertaken by the trial and appellate courts. This review
should not be confused with the problems caused by inconsistent verdicts.
Sufficiency-of-the-evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilty beyond a
reasonable doubt. [Citations.] This review should be independent of the jury’s
determination that evidence on another count was insufficient.’ [Citation.]”
In Federico, the defendant was found guilty of murder and robbery. The jury
found the special allegations under sections 12022, subdivision (a) and 12022.5 that he
was armed with and used a firearm during the commission of the offenses and under
section 12022, subdivision (b) that he used a dangerous and deadly weapon, a baseball

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bat, in the commission of the robbery, to be untrue. (Federico, supra, 127 Cal.App.3d
at p. 24.) The evidence had established that the cause of death was one or more bullets
to the victim’s head. The Court of Appeal concluded that the jury’s finding that the
defendant was not armed in the commission of the murder was “logically inconsistent
with its verdict that he was guilty of the murder.” (Id. at p. 31.) It nonetheless found
that the inconsistency was not a basis for reversal of the murder conviction (ibid.)
because the evidence was “plainly sufficient to support defendant’s conviction of
murder.” (Id. at p. 33.) The above quoted language of section 954 “‘was written into
the section for the purpose of declaring the law that a verdict apparently inconsistent
shall afford no basis for a reversal where the evidence is sufficient to support the
conclusion that the defendant is guilty of the offense of which he stand convicted.’”
(Federico, supra, at p. 32, quoting In re Johnston (1935) 3 Cal.2d 32, 36; see also
People v. Lopez (1982) 131 Cal.App.3d 565, 571 [defendant convicted of six counts of
assault with deadly weapon but jury found that he did not personally use a firearm in
committing the offenses not invalidated because of their rational incompatibility].)
While Federico acknowledged a limited exception to the rule where, “all of the
essential elements of the crime of which the defendant was acquitted are identical to
some or all of the essential elements of the crime of which he was convicted, and
proof of the crime of which the defendant was acquitted is necessary to sustain a
conviction of the crime of which the defendant was found guilty” (Federico, supra,
127 Cal.App.3d at p. 32), that exception is inapplicable here. The use of a knife is not
an essential element in proving forcible oral copulation or rape.
Consequently, if there is sufficient evidence that appellant used a weapon, his
convictions must be sustained in spite of the inconsistency with the weapons
allegations. “In assessing the sufficiency of the evidence, we review the entire record
in the light most favorable to the judgment to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin

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(1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of
credibility in favor of the verdict, and indulge every reasonable inference the jury
could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra,
18 Cal.4th at p. 331.)
The evidence here was plainly sufficient to support a finding of the use of force,
violence, duress, menace or fear. The negative finding on the weapons allegations was
a determination more favorable to appellant than the evidence warranted based on a
technical error in the wording on the verdict form. Each of his five victims, who did
not know each other, testified to a similar modus operandi by appellant in perpetrating
his sex crimes, including use of a butcher knife obtained from a location near the seat
of his car. Some of the victims indicated that he threatened to stab or “shank” them if
they did not orally copulate him and have intercourse with him. He never used a
condom and told some of his victims that he stole the vehicle he was driving so it
could not be traced to him or did not ejaculate inside of them so as not to leave
evidence. Moreover, while the jury’s true finding on the section 667.61, subdivision
(e)(4) circumstance was overturned on the technicality that it required a true finding on
the section 12022.3 deadly weapon allegation, it nonetheless reflects that the jury
believed that appellant used a deadly weapon.
II. Sentencing errors
A. The verdicts
The jury convicted appellant of forcible oral copulation and forcible rape
related to Latya (counts 1 & 2), Ebony (counts 5 & 6), Veronica (counts 9 & 10) and
Davera (counts 13 & 14). It also found to be true two section 667.61, subdivision (e)
circumstances with respect to each of those convictions; that appellant had personally
used a deadly or dangerous weapon (subd. (e)(4)) and had committed a specified
offense against multiple victims (subd. (e)(5)). The jury also convicted appellant of

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forcible oral copulation of Sharon (count 4) and found only one of the section 667.61,
subdivision (e) circumstances to be true; that appellant had personally used a deadly or
dangerous weapon.
In addition, appellant was convicted of assault with a deadly weapon related to
Latya (count 12), attempted second degree robbery related to Ebony (count 7), second
degree robbery relating to Davera (count 15), and second degree robbery (count 11)
and two counts of false imprisonment (counts 8 & 16) relating to Veronica. As to the
robbery and attempted robbery counts, the jury found to be true the personal use of a
deadly or dangerous weapon enhancement within the meaning of section 12022,
subdivision (b)(1).
B. Appellant’s sentence
The trial court imposed full, consecutive indeterminate sentences of 25 years to
life on all but one of the sex offenses, counts 1, 2, 5, 6, 9, 10, 13 and 14. On the final
sex offense, count 4, it imposed a full, consecutive term of 15 years to life. On count 7
for attempted second degree robbery, the trial court sentenced appellant to a
consecutive one year eight months, calculated as one-third the midterm of two years
plus one year for the personal use of a deadly weapon enhancement. On count 8 for
false imprisonment, the trial court sentenced appellant to a consecutive eight months,
calculated as one-third the middle term of two years. On counts 11 and 15 for second
degree robbery, it imposed consecutive sentences of two years, calculated as one-third
the middle term of three years enhanced by one year for the firearm enhancement
under section 12022, subdivision (b)(1). On count 12 for assault with a deadly
weapon, appellant was sentenced to a consecutive term of one year, calculated as one-
third the middle term of three years. The trial court stayed sentence under section 654
on count 16 for false imprisonment.
C. One-strike sentencing scheme
Section 667.61 provides a “one-strike” sentencing scheme. Subdivision (a)
provides that any person convicted of a sex offense specified in subdivision (c), which

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includes forcible rape and forcible oral copulation, under two or more of the
circumstances specified in subdivision (e), or one or more circumstances specified in
subdivision (d), “shall be punished by imprisonment in the state prison for life and
shall not be eligible for release on parole for 25 years. . . .” Subdivision (b) of
section 667.61 provides that a person having one of the circumstances in subdivision
(e) “shall be punished by imprisonment in the state prison for life and shall not be
eligible for . . . parole for 15 years. . . .”
Among the qualifying circumstances provided in subdivision (e) of
section 667.61 are defendant’s commission of the sex offense during commission of a
burglary (subd. (e)(2)), defendant’s kidnapping the victim (subd. (e)(1)), defendant’s
personal use of a dangerous or deadly weapon or firearm (§ 667.61, subd. (e)(4)) and
defendant’s conviction in the present case or cases of committing the specified
offenses against more than one victim. (§ 667.61, subd. (e)(5).)
Subdivision (g) of section 667.61 provides that 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 during a single occasion. If there are
multiple victims during a single occasion, the term specified . . . shall be imposed on
the defendant once for each separate victim.”
D. Unauthorized sentences on counts 1, 2, 5, 6, 9, 10, 13, and 14
In connection with counts 1, 2, 5, 6, 9, 10, 13 and 14 the information alleges the
multiple victims circumstance under subdivision (e)(5) of section 667.61 and use of a
deadly or dangerous weapon under subdivision (e)(4). In addition, in connection with
counts 1 and 2, it alleges the circumstance that the sex acts were committed during the
commission of a burglary under subdivision (e)(2), and, in connection with counts 9
and 10, the circumstances that the defendant kidnapped the victim to commit the sex
offenses under subdivision (e)(1). The jury found the multiple victim and deadly
weapon circumstances to be true as to each of the counts and the commission of a
burglary and kidnapping of the victim circumstances to be not true. The trial court

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correctly concluded that the not true finding of the gun use allegation under
section 12022.3 invalidated the subdivision (e)(4) true finding, leaving only one
circumstance applicable to each of these counts. The trial court nonetheless imposed
sentences of 25 years to life pursuant to section 667.61, subdivision (a).
Appellant contends that the trial court erred in sentencing him to 25 years to life
on counts 1, 2, 5, 6, 9, 10, 13 and 14 pursuant to section 667.61, subdivision (a)
because there was only one circumstance in subdivision (e) found by the jury to be
true. Respondent agrees with this contention, as do we.
After the trial court struck the subdivision (e)(4) findings of use of a deadly or
dangerous weapon, because of the untrue jury finding with respect to section 12022.3,
there remained only one circumstance under subdivision (e) which mandated that
appellant receive only consecutive, 15-years-to-life sentences under subdivision (b) of
section 667.61.
E. Unauthorized sentence on count 4
In connection with count 4, the information alleges against appellant only the
deadly or dangerous weapon circumstance in subdivision (e)(4) of section 667.61
related to the forcible oral copulation of Sharon. As previously discussed, the jury
found the section 12022.3 firearm use allegation to be untrue, and, as a result, the trial
court found the deadly weapon circumstance under section 667.61, subdivision (e)(4)
to be invalid. It sentenced appellant to an indeterminate term of 15 years to life under
section 667.61, subdivision (b).
Appellant contends that the trial court’s sentence on count 4 was unauthorized.
He argues that because the only subdivision (e) circumstance alleged in connection
with that count, the deadly or dangerous weapon circumstance, was stricken by the
trial court, count 4 did not qualify for one-strike sentencing. Respondent agrees, as do
we.
As discussed in part IIC, ante, the jury’s not true finding of the allegation of
weapon use under section 12022.3, invalidated its true finding of weapon use under

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section 667.61, subdivision (e)(4). As that circumstance was the only one alleged in
connection with count 4, there were no circumstances under subdivision (e) found in
connection with this count, and sentencing appellant to 15 years to life under the one-
strike law was improper.
F. Unauthorized multiple life terms
The trial court imposed two life terms for appellant’s conviction of rape and
oral copulation of each of the four victims for which he was convicted of both
offenses, apparently relying upon the language in section 667.6, subdivision (d) which
permits “full, separate, and consecutive term[s]” “if the crimes involve separate
victims or involve the same victim on separate occasions.”
Appellant contends that the trial court erred in doing so. He argues that
subdivision (g) of section 667.61 provides that the life sentences authorized by that
section be imposed only once for any offenses committed against a single victim
“during a single occasion.” (§ 667.61, subd. (g).) Respondent agrees with appellant.
We also agree.
The California Supreme Court in People v. Jones (2001) 25 Cal.4th 98, 105
made clear that the standard of “separate occasion” set forth in section 667.6,
subdivision (d) was not the same as the standard of “single occasion” set forth in
section 667.61, subdivision (g). The former term has been interpreted to mean
“reasonable opportunity for reflection” (People v. Jones, supra, at p. 105) whereas the
latter term simply means in “close temporal and spatial proximity” (id. at pp. 106-
107). With respect to each of appellant’s victims, the forcible rape occurred
immediately after the forced oral copulation. This constituted a “single occasion”
within the meaning of section 667.61, subdivision (g). Therefore, appellant could only
be given a life sentence for one of the two sex offenses committed against each of the
victims of both.

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G. Blakely error
The trial court sentenced appellant on the sex offenses to full, separate and
consecutive terms pursuant to section 667.6, subdivision (d), based on its finding that
the offenses occurred against the same victim on separate occasions. It also sentenced
him to consecutive terms on the nonsex offenses, calculated at one-third of the
midterm, based on its findings that the crimes involved separate acts of violence, and
were committed at different times at different places, and were not a single period of
aberrant behavior. It found no factors in mitigation. The trial court imposed the “full
term consecutive” on the sex offenses pursuant to section 667.6, subdivision (d).
Appellant contends that the trial court’s imposition of “full, separate and
consecutive sentences” for the sex offenses, and consecutive sentences for the nonsex
offenses, deprived him of his right to a jury determination beyond a reasonable doubt
of all facts necessary to increase his sentence beyond the statutory maximum and to
due process, as set forth in Blakely.
Appellant’s contention that Blakely, supra, 542 U.S. 296 renders the imposition
of consecutive sentences in this case unconstitutional is without merit. This contention
was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th
1238, which concluded that “the judicial factfinding that occurs when a judge
exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
(Id. at p. 1244.) We are, of course, bound by this decision. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)7
7 The United States Supreme Court has granted certiorari in People v.
Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom.
Cunningham v. California (Feb. 21, 2006, No. 05- 6551) ___ U.S. ___, on the issue of
whether Blakely applies to California’s determinate sentencing law.

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DISPOSITION
Appellant’s sentence is modified to provide a term of 15 years to life on
counts 1, 5, 9 and 13. The matter is remanded for resentencing under any other
applicable law, other than the one strike law, on counts 2, 4, 6, 10 and 14. The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
DOI TODD
We concur:
____________________, P. J.
BOREN
____________________, J.
CHAVEZ

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