P. v. Garcia

Filed 3/22/07 P. v. Garcia CA2/6
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME JUAREZ GARCIA,
Defendant and Appellant.
2d Crim. No. B190881
(Super. Ct. No. 2005010499)
(Ventura County)
OPINION ON REHEARING
Jaime Juarez Garcia appeals a judgment after jury trial, following his
conviction of making criminal threats (Pen. Code, § 422),1 corporal injury to a child's
parent (§ 273.5, subd. (a)), forcible oral copulation (§ 288a, subd. (c)(2)), sexual battery
by restraint (§ 243.4, subd. (a)), and forcible rape (§ 261, subd. (a)(2)). The court
imposed an aggregate state prison term of 24 years and 8 months, which included an
upper term sentence of 8 years for the forcible oral copulation count, and the upper term
of 8 years for the forcible rape count. The court ruled that those sentences run
consecutively.
1 All statutory references are to Penal Code.

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We conclude the trial court did not err by imposing consecutive sentences
for Garcia's convictions of forcible oral copulation and forcible rape, but it exceeded its
jurisdiction by imposing the upper term for the rape conviction by relying on sentencing
factors which were not tried by a jury. We vacate the sentence and remand for
resentencing, but otherwise affirm.
FACTS
Garcia went to the home of his former wife, Maricela G. He hit her with a
stick and told her he was going to kill her because she "was a whore." He demanded to
go inside her home. He told her that if she did not let him in, he would take her children
away.
He grabbed her and they entered the house together. Garcia told Maricela
that "he wanted to sleep with [her] and that he owns [her]."
They walked into the bedroom and he told her to "get undressed." She
complied because Garcia yelled at her and threatened to take her child away. He put his
knees on her legs and "kissed" her vagina. After he finished that activity, he kissed her
breast, and then the other breast. He then kissed her mouth and neck. Maricela testified
that he also "was touching [her] all over [her] body . . . ." He ignored her requests that he
stop. While he was kissing her breasts, he moved his legs so they were in between hers.
He then "put his penis in [her] vagina."
DISCUSION
I. Consecutive Sentences
Garcia contends the court erred by imposing consecutive sentences for
forcible oral copulation and forcible rape because "the offenses did not occur on separate
occasions." We disagree.
Where a defendant is convicted of forcible oral copulation and forcible
rape, the court must impose consecutive sentences for those offenses if the crimes
"involve the same victim on separate occasions." (§ 667.6, subd. (d); People v. Garza

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(2003) 107 Cal.App.4th 1081, 1091.) "'In determining whether crimes against a single
victim were committed on separate occasions . . ., the court shall consider whether,
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. Neither the duration of time between crimes, nor whether or not the defendant
lost or abandoned his . . . opportunity to attack, shall be . . . determinative on the issue of
whether the crimes in question occurred on separate occasions.' [Citations.]" (Garza,
supra, at p. 1091.)
"[A] forcible violent sexual assault made up of varied types of sex acts
committed over time against a victim, is not necessarily one sexual encounter. . . . [A]
trial court could find a defendant had a 'reasonable opportunity to reflect upon his
. . . actions' even though the parties never changed physical locations and the parties
'merely' changed positions." (People v. Irvin (1996) 43 Cal.App.4th 1063, 1071.) It may
find multiple sex offenses committed on separate occasions even where there was no
"obvious break in the perpetrator's behavior . . . ." (People v. Jones (2001) 25 Cal.4th 98,
104.) Where the trial judge finds that the defendant committed the 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 after completing" the first sex
offense. (People v. Garza, supra, 107 Cal.App.4th at p. 1092.)
Here the trial court found Garcia committed these offenses "on separate
occasions which means [he] had the opportunity to reflect and, nevertheless, resumed his
sexually assaultive behavior." In so finding, the court did not abuse its discretion.
In Garza, the defendant inserted his finger in the victim's vagina, he then
played with her chest, placed his gun in the back seat, "pulled the victim's legs around his
shoulders and . . . forced his penis inside her vagina." (People v. Garza, supra, 107
Cal.App.4th at pp. 1092-1093.) The Court of Appeal held that he had an "adequate

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opportunity for reflection" between the time he committed the offenses of digital
penetration and forcible rape. (Id. at p. 1093.)
The present case is analogous to Garza. When Garcia committed forcible
oral copulation, his knees were on Maricela's legs. Before he forcibly raped her, he
committed other sexual acts, including kissing her breasts, mouth and neck, and touching
her all over her body. She repeatedly asked him to stop, but he continued. While Garcia
was kissing her breasts, he changed his body position so that his legs were in between her
legs. He then committed the forcible rape. From this evidence, the trial court could
reasonably infer that he had a reasonable opportunity to reflect after committing oral
copulation and before committing rape. (People v. Garza, supra, 107 Cal.App. 4th
1093.)
Garcia contends that this case is analogous to People v. Pena (1992)
7 Cal.App.4th 1294, 1316, where the Court of Appeal held that a defendant who
committed rape and oral copulation did not have a reasonable opportunity to reflect upon
his actions. But in that case, the defendant raped the victim and then "simply flipped
[her] over and orally copulated her." (Ibid.) The two offenses occurred in rapid
succession within "a matter of seconds" of each other. (Ibid.) Here, by contrast, there
was an interval between the two offenses when Garcia committed a calculated series of
other sexual offenses which gave him time to reflect before committing rape. The trial
court did not err by imposing consecutive sentences. (People v. Jones, supra, 25 Cal.4th
at p. 104; People v. Irvin, supra, 43 Cal.App.4th at p. 1071.)
II. Upper Term Sentences
Garcia contends the trial court erred by imposing upper term sentences by
making findings on aggravating sentencing factors which were not tried by a jury. We
agree. The United States Supreme Court has held that a judge may not impose an upper
term sentence because the aggravating sentencing factors to support such a sentence must
be tried by a jury. (Cunningham v. California (2007) 549 U. S. __ [127 S.Ct 856].)

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The Attorney General claims that the upper term sentences should be
sustained. He argues that Garcia is a recidivist and a trial court may find that to be a
factor in aggravation to support an upper term without submitting the matter to a jury.
That may be the case, but here the court found that there were multiple
factors in aggravation upon which it relied in imposing the upper terms aside from
Garcia's criminal record. It noted that there were seven factors listed in the probation
report, but it then said, "in my view there are many more which are not listed." It relied
heavily on factors such as Maricela's vulnerability, Garcia's use of fear "to obtain
compliance of the victim," the threat he poses to society, and his attitude that Maricela
"still belongs to him." It said, "I know there's no factor that says the defendant is a
nightmare, but there probably should be." Under these circumstances we must vacate the
upper term sentences and remand for resentencing.
The upper term sentences are vacated and we remand the matter for
resentencing. (Cunningham v. California, supra, 549 U. S. __ [127 S.Ct 856].) In all
other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.

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Allan L. Steele, Judge
Superior Court County of Ventura
______________________________
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown Jr., Bill Lockyer, Attorneys General, Dane R. Gillette,
Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior
Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General,
Kathy S. Pomerantz, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and
Respondent.

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