P. v. Diosdado

Filed 3/25/08 P. v. Diosdado CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL SKATE DIOSDADO,
Defendant and Appellant.
B191934
(Los Angeles County
Super. Ct. No. BA266915)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Sam Ohta, Judge. Modified and, as modified, affirmed with directions.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta
L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Rafael Skate Diosdado appeals from the judgment entered following his plea of no
contest to count 1 – possession of a firearm by a felon, and following his convictions by jury
on count 4 – kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) with personal use
of a firearm (Pen. Code, § 12022.53, subd. (b)), count 5 – sexual penetration by a foreign
object (Pen. Code, § 289, subd. (a)(1)), count 6 – attempted forcible rape (Pen. Code, §§
664, 261, subd. (a)(2)), and count 7 – forcible rape (Pen. Code, § 261, subd. (a)(2)), with
findings as to each of counts 5, 6, and 7, that appellant personally used a firearm (Pen. Code,
§§ 12022.3, subd. (a), 12022.53, subd. (b)) and findings as to each of counts 5 and 7, that
appellant committed aggravated kidnapping (Pen. Code, § 667.61, subds. (a) & (d)(2)),
kidnapped (Pen. Code, § 667.61, subds. (a) & (e)(1)), and personally used a firearm (Pen.
Code, § 667.61, subds. (a) & (e)(4)); and count 8 – criminal threats (Pen. Code, § 422) with
an admission that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)). The
court sentenced appellant to prison for a total unstayed term of 48 years, plus 50 years to
life. Appellant and respondent claim the trial court committed sentencing errors. We
modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that
about midnight on May 29, 2004, Jessica E. was driving a person home. Appellant, who
was a felon, and Augustine Garcia1 were also in the car.
Sometime after Jessica E. dropped the person home, appellant, using a gun, and with
Garcia as his accomplice, kidnapped her to rape her by forcing her to drive down various
streets. Appellant later made Jessica E. stop the car and get in the backseat with Garcia.
Appellant gave the gun to Garcia and began driving. While appellant was driving, Garcia
committed sexual offenses against Jessica E.
1 Garcia was at one point a codefendant. He is not a party to this appeal.

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Appellant later stopped the car and got in the backseat with Jessica E. Garcia got in
the front seat. Appellant began taking off Jessica E.’s pants and digitally penetrated her
vagina.
Appellant pulled Jessica E.’s pants down further and made her turn around so she
was facing the back. Jessica E.’s knees were on the backseat and her hands were on top of
the backseat. Appellant tried to rape Jessica E. (count 6), and his penis touched her vagina a
few times. Jessica E. testified, “I guess there was a weird angle or something and he
couldn’t do it from that way.” She also testified, “I guess he was trying to get it in there. It
just wasn’t working.” Appellant turned Jessica E. around so she was facing him, then raped
her (count 7). Garcia later committed another sexual offense against her. During and after
the above sexual offenses, appellant made criminal threats to Jessica E.
CONTENTIONS
Appellant claims (1) Penal Code section 654 bars multiple punishment on counts 6
and 7, (2) the trial court abused its discretion by denying his motion to dismiss a strike,
(3) the trial court erred by staying instead of striking the Penal Code section 12022.3,
subdivision (a) enhancements, (4) appellant is entitled to additional precommitment credit,
and (5) the trial court committed Cunningham2 error by imposing consecutive sentences on
counts 5, 6, and 7. Respondent claims the abstract of judgment must be amended to reflect
that the trial court imposed a Penal Code section 12022.53, subdivision (b) enhancement as
to count 5 and that there was no such enhancement as to count 1.
DISCUSSION
1. Penal Code Section 654 Did Not Bar Multiple Punishment on Counts 6 and 7.
Penal Code section 654 provides, in relevant part, that “[a]n 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.”
2 Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856].

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In People v. Perez (1979) 23 Cal.3d 545 (Perez), the defendant committed various
sexual offenses and the People urged on appeal that the trial court erred by concluding that
Penal Code section 654 banned multiple punishment as to some of the offenses. (Id. at
pp. 549-550.) The Supreme Court observed, “. . . it is well settled that section 654 applies
not only where there was but one act in the ordinary sense, but also where there was a
course of conduct which violated more than one statute but nevertheless constituted an
indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon
the intent and objective of the actor. [Citation.] If all the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not for more than
one.” (Id. at p. 551.)
Perez also observed, “[o]n the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not merely
incidental to each other, he may be punished for the independent violations committed in
pursuit of each objective even though the violations were parts of an otherwise indivisible
course of conduct. [Fn. omitted.]” (Perez, supra, 23 Cal.3d at p. 551.)
The Supreme Court noted that “[a] defendant who attempts to achieve sexual
gratification by committing a number of base criminal acts on his victim is substantially
more culpable than a defendant who commits only one such act.” (Perez, supra, 23 Cal.3d
at p. 553.) As to the offenses committed by the defendant in Perez, the Supreme Court
stated, “[n]one of the sex offenses was committed as a means of committing any other, none
facilitated commission of any other, and none was incidental to the commission of any
other. We therefore conclude that section 654 does not preclude punishment for each of the
sex offenses committed by defendant.” (Id. at pp. 553-554.)
Appellant’s completed rape of Jessica E. followed his attempt to rape her; therefore,
the rape was not a means of committing, did not facilitate the commission of, and was not
incidental to, the preceding attempted rape.
Moreover, appellant initially sought sexual gratification by attempting to rape Jessica
E. from behind. Once this proved unsuccessful, he finally stopped, having committed

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attempted rape. Once he finally stopped, he no longer sought sexual gratification that way.
Instead, he turned the unwilling Jessica E. around and placed her in a different physical
position to expose her to a factually different outrage for his sexual gratification, namely,
raping her while facing her. The attempted rape from behind was not the means by which
appellant committed the completed frontal rape, did not facilitate commission of the latter
offense, and was not incidental to it. Penal Code section 654 did not bar multiple
punishment on counts 6 and 7. (Cf. People v. Harrison (1989) 48 Cal.3d 321, 338; Perez,
supra, 23 Cal.3d at pp. 548-554; People v. Brown (1994) 28 Cal.App.4th 591, 601.)3
2. The Trial Court Did Not Err by Refusing to Strike Appellant’s Prior Felony Conviction.
a. Pertinent Facts.
The preconviction probation report prepared for a December 2004 hearing reflects as
follows. Appellant was born in 1976. In October 1994, he was convicted of unauthorized
taking of a vehicle and placed on probation for three years. In 1995, he was convicted of
grand theft from the person (case No. GA023272) and sentenced to prison for six years eight
months.
The report also indicates as follows. Appellant was a 28-year-old gang member.
Despite efforts of the criminal justice system to change his criminal behavior, he continued
violating the law. Appellant was placed on probation, reoffended, was placed on parole, and
reoffended. The report listed as an aggravating circumstance that appellant had served a
prior prison term, indicated there were no mitigating circumstances, and recommended
imprisonment for the “mid-base” term.
Prior to trial, on May 16, 2005, the court and parties discussed the status of plea
negotiations. The court indicated its understanding that the People had made offers to
appellant and Garcia, and both defendants had rejected the offers. The court observed that
sentences in sex cases were “astronomically high.” Appellant’s counsel indicated that if
3 To the extent appellant suggests multiple punishment on counts 6 and 7 violated his
right to due process, his suggestion is perfunctory and there is no need to address it. (People
v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Callegri (1984) 154 Cal.App.3d
856, 865.)

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appellant were convicted he would die in prison. Garcia’s counsel indicated that if Garcia
were convicted he would serve 43 years 8 months in prison. The court indicated the People
were offering appellant 38 years 8 months in prison and offering Garcia 20 years in prison.
The court gave appellant and Garcia an opportunity to talk with their respective counsel.
Later, counsel for each defendant spoke with the assistant head deputy district
attorney for the sex crimes unit. The assistant offered 20 years in prison to appellant and 15
years in prison to Garcia. Counsel for appellant and Garcia advised the two that this was the
best offer they would receive. Appellant and Garcia rejected the offers on the grounds that
appellant and Garcia were innocent. Appellant’s counsel indicated that appellant had not
rejected the People’s offer because of the proposed prison time appellant would have been
required to serve pursuant to the People’s offer.
Prior to trial, on May 19, 2005, appellant admitted that he had suffered a strike,
namely, a 1995 robbery (case No. GA023272). During trial, the court declared a mistrial as
to Garcia. Following appellant’s conviction in the present case, the People, in October
2005, filed a sentencing memorandum asking the court to sentence appellant to prison for
116 years to life.
On April 13, 2006, appellant filed a request that the court dismiss the strike. The
written motion urged as follows. The strike was over 10 years old. During that 10-year
period, appellant was free from criminal contacts. He had suffered no new arrests or
convictions after he was placed on parole. His maximum sentence was 116 years to life in
prison if the strike were not stricken, but the court should strike it and sentence him to
prison for 35 years to life. In May 2006, the People filed another sentencing memorandum
urging the court to sentence appellant to prison for 116 years to life.
At the June 9, 2006 sentencing hearing, the court indicated it had reviewed the court
file, read the parties’ sentencing memoranda, and read appellant’s request to strike the
strike. Appellant argued his maximum sentence was 106 (not 116) years to life in prison,
but the trial court should strike the strike and sentence him to prison for 35 years to life.
Appellant’s counsel claimed that, at least in appellant’s counsel’s presence, appellant had

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accepted the People’s offer. Appellant’s counsel also claimed that appellant ultimately was
unable to accept the offer because it was part of a package plea bargain with Garcia, and
Garcia had refused the offer. According to appellant’s counsel, the People later offered
Garcia 15 years in prison and he accepted the offer.
After extensive discussions concerning appellant’s possible prison sentences and
their component parts, the court turned to the issue of appellant’s request to strike the strike.
The court acknowledged it had discretion to strike the strike, then stated, “In doing so,
People v. Williams cites guidance on how the court ought to apply this discretion.” The
court indicated it had to consider the circumstances of the current offense, the circumstances
of the past conviction, and the background, character, and prospects of appellant as they
related to recidivism and legislative intent.
The court indicated as follows. Appellant suffered current convictions for two
violent sex offenses, kidnapping to commit a violent sexual offense, possession of a firearm
by a felon, attempted rape, and the serious felony of criminal threats. All of the current
offenses, except possession of a firearm by a felon, were related to violence. The court
stated the current offenses were “clearly within the bull’s-eye of the legislative intent.”
As to appellant’s past convictions, the court noted that even if appellant’s robbery
conviction was a strong-arm robbery, it was a serious and violent felony, and did not present
a circumstance outside the legislative intent of the Three Strikes law.
As to appellant’s background, character, and prospects, the court indicated as
follows. Appellant did not have excessively numerous contacts with law enforcement, but
did have significant contacts, including the present case. Appellant was initially on
probation, was later imprisoned for the robbery conviction, was released on parole, and the
present offenses occurred. Appellant had a previous significant contact with law
enforcement, his imprisonment should have taught him something, but he committed the
current offenses which showed a great deal about appellant and what he was capable of
doing. These facts were related to recidivism and the legislative intent of the Three Strikes
law.

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The court stated, “So from that perspective I can’t say that [appellant’s] background,
character and prospect . . . goes well for him. And because of this analysis, the only one that
I could say possibly favors him is the 1995 robbery conviction. That’s the only one where I
could say it might slide to the outer periphery of the legislative intent. That being so, I do
not believe I have discretion here that could rationally be utilized to strike the strike. And
so, respectfully, I deny the defendant’s motion to strike the strike in this case.” The court
sentenced appellant to prison for 48 years, plus 50 years to life.
b. Analysis.
Appellant claims the trial court erroneously refused to strike, pursuant to Penal Code
section 1385, appellant’s strike. We disagree. The court reviewed the court file, the parties’
sentencing memoranda, and appellant’s request to strike the strike, and the court heard
argument from counsel. In light of the nature and circumstances of appellant’s current
offenses and the strike, and the particulars of his background, character, and prospects,
appellant cannot be deemed outside the spirit of the Three Strikes law as to the strike, and
may not be treated as though he previously had not suffered it. (Cf. People v. Williams
(1998) 17 Cal.4th 148, 161-164.)
Appellant argues the trial court erred because the trial court did not consider the
length of appellant’s potential sentence absent the striking of the strike. However, the
record, including appellant’s references to his potentially lengthy sentence in his written
request to strike the strike, his references thereto during argument at the June 9, 2006
sentencing hearing, and the comments of the court and parties at that hearing, reflect
otherwise. Appellant also claims the length of his sentence was particularly unfair because
he tried to accept the People’s plea offer but was forced to go to trial because the offer was
part of a package offer which Garcia refused. The record belies the claim. We hold that the
trial court’s order refusing to strike the strike was sound, and not an abuse of discretion.

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(Cf. People v. Williams, supra, 17 Cal.4th at pp. 158-164; People v. DeGuzman (1996)
49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.)4
3. The Trial Court Erroneously Failed to Strike the Penal Code Section 12022.3,
Subdivision (a) Enhancements.
As to each of counts 5, 6, and 7, the jury found true a Penal Code section 12022.53,
subdivision (b) firearm use allegation, and a Penal Code section 12022.3, subdivision (a)
firearm use allegation. At sentencing on June 9, 2006, the court, as to each of counts 5, 6,
and 7, (1) imposed a 10-year Penal Code section 12022.53, subdivision (b) enhancement,
(2) imposed a four-year Penal Code section 12022.3, subdivision (a) enhancement, but
(3) stayed execution of sentence on the Penal Code section 12022.3, subdivision (a)
enhancement pending completion of appellant’s sentence on the Penal Code section
12022.53, subdivision (b) enhancement.
Appellant claims the trial court erred by failing to strike the Penal Code section
12022.3, subdivision (a) enhancement pertaining to each of counts 5, 6, and 7. We agree.
Penal Code section 12022.53, subdivision (f), provides, in relevant part: “An enhancement
involving a firearm specified in Section . . . 12022.3, . . . shall not be imposed on a person in
addition to an enhancement imposed pursuant to this section.” (Italics added.) As to each
of counts 5, 6, and 7, the trial court imposed a Penal Code section 12022.53, subdivision (b)
enhancement with the result that an “enhancement [was] imposed pursuant to this section”
within the meaning of Penal Code section 12022.53, subdivision (f). Therefore, the trial
court was required to comply with the mandate of Penal Code section 12022.53, subdivision
(f), that a Penal Code section 12022.3 enhancement “shall not be imposed.” Accordingly,
the court was required to strike each such Penal Code section 12022.3, subdivision (a)
enhancement. (Cf. People v. Sun (2007) 157 Cal.App.4th 277, 283-285 (Sun); People v.
4 To the extent appellant claims his sentence violated due process and constituted cruel
and unusual punishment, he waived the issues by failing to raise them below (cf. People v.
Benson (1990) 52 Cal.3d 754, 786, fn. 7), we reject the claims because he has raised them
perfunctorily, and, in any event, there is no merit to them. (Cf. People v. Kinsey (1995)
40 Cal.App.4th 1621, 1631.)

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Bracamonte (2003) 106 Cal.App.4th 704, 712, fn. 5.) None of the cases cited by respondent
compels a contrary conclusion. Respondent’s argument based on California Rules of Court,
rule 4.447,5 was rejected in Sun.6
4. Appellant Is Entitled to Additional Precommitment Credit.
Appellant was arrested on June 17, 2004, and remained in custody until he was
sentenced on June 9, 2006, a total of 723 days, inclusive. At sentencing, the court awarded
appellant 807 days of precommitment credit, consisting of 702 days of custody credit and,
pursuant to Penal Code section 2933.1, subdivision (a), 105 days of conduct credit.
However, appellant was entitled to a total of 831 days of precommitment credit,
consisting of 723 days of custody credit and 108 days of conduct credit. (Cf. People v.
Bravo (1990) 219 Cal.App.3d 729, 731; People v. Smith (1989) 211 Cal.App.3d 523, 527.)
We reject any claim by respondent, based on Penal Code section 1237.1, contrary to our
above conclusion, since appellant’s contention concerning precommitment credit is not his
sole contention on appeal. (People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3;
People v. Acosta (1996) 48 Cal.App.4th 411, 420-428.)
5. No Cunningham Error Occurred.
5 The rule stated, “No finding of an enhancement shall be stricken or dismissed
because imposition of the term is either prohibited by law or exceeds limitations on the
imposition of multiple enhancements. The sentencing judge shall impose sentence for the
aggregate term of imprisonment computed without reference to those prohibitions and
limitations, and shall thereupon stay execution of so much of the term as is prohibited or
exceeds the applicable limit. The stay shall become permanent upon the defendant’s service
of the portion of the sentence not stayed.” (Italics added.)
6 In the face of the conflict between the “shall not be imposed” language of Penal Code
section 12022.53, subdivision (f) and the “shall impose” language of the rule, the statutory
language prevails. “Rules promulgated by the Judicial Council may not conflict with
governing statutes. [Citation.] If a rule is inconsistent with a statute, the statute controls.
[Citation.]” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532.) The related issue of the
appropriate disposition of concurrent findings under Penal Code section 12022.53,
subdivision (b), and Penal Code section 12022.5, is pending before our Supreme Court in
People v. Gonzalez, review granted March 14, 2007, S149898.

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Appellant’s prison sentence included a term of 50 years to life on count 5, a
consecutive term of 6 years on count 6, and a consecutive term of 12 years on count 7, plus,
as to each such count, 10 years for a Penal Code section 12022.53, subdivision (b)
enhancement. The court imposed the consecutive sentence on count 6 pursuant to Penal
Code section 1170.1, and the consecutive sentence on count 7 pursuant to Penal Code
section 667.6, subdivision (c).
Appellant claims imposition of consecutive sentences as to counts 5, 6, and 7
constituted error under Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856,
166 L.Ed.2d 856]. We disagree. In People v. Black (2007) 41 Cal.4th 799 (Black), our
Supreme Court noted that “[t]he high court’s decision in Cunningham does not call into
question the conclusion we previously reached regarding consecutive sentences. The
determination whether two or more sentences should be served in this manner is a
‘sentencing decision[] made by the judge after the jury has made the factual findings
necessary to subject the defendant to the statutory maximum sentence on each offense’
and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional
equivalent of elements of an offense.’ [Citation.] Accordingly, we . . . conclude that [a]
defendant’s constitutional right to jury trial [is] not violated by the trial court’s imposition of
consecutive sentences . . . .” (Black, supra, 41 Cal.4th at p. 823.) Appellant concedes this
Court is bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
6. The Abstract of Judgment Must Be Corrected.
As mentioned, the trial court imposed a 10-year Penal Code section 12022.53,
subdivision (b) enhancement as to count 5. However, the abstract of judgment erroneously
fails to reflect this. Moreover, there was no such enhancement alleged, admitted, or found
true as to count 1, but the abstract of judgment erroneously reflects the trial court stayed
such an enhancement as to that count. We will direct the trial court to correct the abstract of
judgment accordingly. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466.)
DISPOSITION

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The judgment is modified by striking the three Penal Code section 12022.3,
subdivision (a) enhancements pertaining to each of counts 5, 6, and 7, and by awarding
appellant an additional 21 days of custody credit pursuant to Penal Code section 2900.5,
subdivision (a), plus 3 days of conduct credit pursuant to Penal Code section 2933.1,
subdivision (a), for a total precommitment credit award of 831 days, and, as modified, the
judgment is affirmed. The trial court is directed to forward to the Department of
Corrections an amended abstract of judgment reflecting the above modifications, that a
Penal Code section 12022.53, subdivision (b) enhancement was imposed as to count 5, and
that there was no Penal Code section 12022.53, subdivision (b) enhancement, imposed,
stayed, or otherwise, as to count 1.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
ALDRICH, J.

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