P. v. Delgadillo

Filed 5/18/07 P. v. Delgadillo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE LUIS DELGADILLO,
Defendant and Appellant.
F049455 & F049682
(Super. Ct. No. SF012650A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Clarence
Westra, Jr., Judge.
Kat Kozik, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
STATEMENT OF THE CASE
On July 14, 2005, the Kern County District Attorney filed an information in
superior court charging appellant Jose Luis Delgadillo as follows:
Count I—attempted murder (Pen. Code,1 §§ 187, subd. (a), 664) with a prior
serious felony conviction (§ 667, subd. (a)) and prior strike conviction (§§ 667, subds.
(c)-(j), 1170.12, subds. (a)-(e));
Count II—corporal injury to a cohabitant (§ 273.5, subd. (a)) with a prior strike
conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Count III—kidnapping (§ 207, subd. (a)), a serious felony (§ 1192.7, subd.
(c)(20)) with a prior serious felony conviction (§ 667, subd. (a)) and prior strike
conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Count IV—misdemeanor false imprisonment (§ 236) with a prior strike conviction
(§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Count V—criminal threats (§ 422) with a prior serious felony conviction (§ 667,
subd. (a)) and prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e));
Count VI—felony obstruction or severance of a telephone line, appurtenance, or
apparatus (§ 591) with a prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds.
(a)-(e));
Count VII—rape (§ 261, subd. (a)(2)), a serious felony (§ 1192.7, subd. (c)(3))
with a prior felony sex offense (§ 667.61, subd. (d)(1)), commission of the present
offense during a kidnapping (§ 667.61, subds. (d)(2), (e)(1)) by a habitual sex offender
(§ 667.71) with a prior serious felony conviction (§ 667, subd. (a)) and prior strike
conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); and
1 All further statutory references are to the Penal Code unless otherwise indicated.

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3.
Count VIII—failure to register as a sexual offender (§ 290, subd. (g)(2)) with a
prior strike conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).2
On July 22, 2005, appellant was arraigned, pleaded not guilty to the substantive
counts, denied the truth of the special allegations, and requested a jury trial.
On September 2, 2005, appellant declined a plea bargain entailing a 21-year term
of imprisonment on counts II and III.
On September 8, 2005, counsel stipulated to the severance of count VIII for trial.
On September 12, 2005, the court ruled on numerous motions in limine and jury
trial commenced.
On September 15, 2005, appellant waived his right to a jury trial on the truth of
the prior convictions and agreed to a court trial of these allegations.
On September 16, 2005, the jury returned verdicts finding appellant guilty of
counts II (corporal injury upon cohabitant), IV (false imprisonment), VI (obstruction or
severance of telephone line), and VII (misdemeanor battery, § 243), a lesser included
offense of that charged in the information. The jury found appellant not guilty of counts
I (attempted murder) and V (criminal threats). The jury was unable to reach a verdict on
count III (kidnapping) and the court declared a mistrial as to that count.
On September 20, 2005, appellant waived a court trial on the bifurcated special
allegations, pleaded guilty to count VIII, and admitted the truth of the strike priors
alleged as to counts II, VI, and VIII (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
2 Appellant was convicted of a violation of section 262.1 on June 21, 1990, an
offense entailing a registration requirement. Appellant registered in 1991 but did not
subsequently register in the cities of Shafter or Bakersfield. Appellant lived in the City
of Shafter in June 2005. At trial in the instant case, the parties stipulated the factual basis
for the failure to register (count VIII) was set forth in the reports of the offense.
Appellant notes these offense reports are not part of the record on appeal.

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4.
On October 19, 2005, appellant filed a sentencing statement, a request to reduce
counts II and VI to misdemeanors, and a request to dismiss the strike prior (§ 1385). On
October 26, 2005, respondent filed written opposition to several of appellant’s sentencing
documents.
On October 28, 2005, the court denied appellant’s motions to strike the prior
conviction and to reduce count II to a misdemeanor but did grant appellant’s motion to
reduce count VI to a misdemeanor. The court then denied appellant probation and
sentenced him to a total term of nine years four months in state prison. The court
imposed the doubled upper term of eight years on count II, a consecutive term of 16
months (one-third of the doubled middle term) on count VIII, and concurrent terms of
one year, one year, and six months, respectively, on counts IV, VI, and VII. The court
ordered appellant to pay restitution to the victim (§ 1202.4, subd. (f)(2)), imposed a $200
restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending
successful completion of parole (§ 1202.45), and imposed a $20 court security fee
(§ 1465.8). The court awarded 194 days of custody credits.
On November 7, 2005, the court dismissed remaining count III on motion of the
district attorney in furtherance of justice (§ 1385).
On December 27, 2005, appellant filed a petition for writ of habeas corpus with
this court and raised a number of appellate issues (No. F049455).
On January 23, 2006, this court filed an order construing and treating the petition
as a timely-filed notice of appeal and directing the Clerk of the Kern County Superior
Court to file the petition as a notice of appeal.
On February 1, 2006, this court filed another copy of appellant’s petition for writ
and assigned to it case No. F049682.
On March 2, 2006, this court consolidated case Nos. F049455 and F049682 for
purposes of hearing and determination.

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5.
On February 15, 2007, this court denied appellant’s request to file supplemental
brief with respect to the ruling in Cunningham v. California (2007) 549 U.S. ____ [127
S.Ct. 856] (Cunningham). We noted: “In light of the briefing appellant has provided
challenging his upper and consecutive terms under Blakely, the court does not require
additional briefing on the issue at this time.”
STATEMENT OF FACTS
In June 2005, appellant and Mary S. were living together as boyfriend and
girlfriend in the City of Shafter. Mary S. was still married to one Alberto Reyes, but she
considered him her “ex-husband” because they were in the process of separating. At the
time of trial, Mary S. and Reyes had called off their divorce.
On Father’s Day, June 19, 2005, appellant returned home from work, checked the
caller identification feature on their telephones, and discovered that Reyes had called the
household. Appellant became upset and talked with Mary S. for an hour about Reyes’s
calling. Appellant tried to call Reyes that night and the next morning but could not reach
him.
On Monday, June 20, 2005, appellant and Mary S. went to Reyes’s residence.
Reyes came to the door and appellant and Mary S. told him not to call her. When
appellant and Mary S. returned home, appellant took the cordless handsets of their two
telephones and threw them against the wall, disabling the instruments. Appellant then
threatened to kill Mary S., Reyes, and himself. He threatened to kill Mary S. with some
pruning shears she had stored by their washing machine. Appellant swore, yelled, and
started a fire with some papers in the kitchen sink. Mary S. testified she took his
statements seriously, was scared, and did not feel free to leave.
The couple left the house about an hour later. Appellant drove to Reyes’s
residence and got into a face-to-face shouting match with Reyes. Appellant and Mary S.
next drove to the convenience store where appellant worked and appellant borrowed

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$100. Mary S. said she was not concerned at this point in their journey. Appellant told
her he wanted to take her somewhere, got on a freeway, and drove to Lake Ming.
At Lake Ming, Mary S. stepped out of the passenger door and smoked. Appellant
rummaged through the glove box and looked for Reyes’s telephone number. Appellant
said he had “better not find a phone number of Alberto’s or else.” Mary S. suggested
they sit at a nearby picnic table. Appellant was angry, grabbed her by the shirt and hair,
and pulled her back into the car. When she fell onto his lap, appellant punched her in the
eye and then smothered her with his hands. Appellant screamed, “Now you want to die,
bitch, you’re going to die now.” Mary S. was scared appellant would carry out his threat.
Photos of Mary S. taken after the incident showed a bruise on her right arm and bruising
and swelling on her right eye.
Appellant drove away from Lake Ming with Mary S. as his passenger and she was
concerned that he would harm her. Appellant angrily locked her door and window and
held her seatbelt when they came to stops. He sped and swerved the car and told Mary S.
he could drive off of a cliff or smash her head in and kill her. Mary S. tried to calm
appellant down by using her pet names for him and reassuring him that she did not love
Reyes.
Appellant drove the car to Mojave even though Mary S. did not want to go there.
He parked in front of the lobby of the Best Motel, told Mary S. he would watch her, and
then went inside to register for a room. The registration took about 10 minutes.
Appellant returned to the car, drove to a Taco Bell, and ordered food for both of them in
the drive-through lane. They returned to the Best Motel, entered room 111, and ate the
food.
Appellant lay on the bed and told Mary S. to lie next to him. She sat on the edge
of the bed but said she was not ready to lie down. Appellant suddenly grabbed her,
pulled her onto the bed, and straddled her body. She screamed loudly and tried to hit and
kick appellant off of her. He responded by stuffing a washcloth in her mouth and

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inflicting a “busted” lip. Appellant then placed a pillow over Mary S.’s face and applied
all of his weight on it until she started to pass out. Appellant then stopped, pushed her
into the bathroom of the motel room, and told her to wash up. Mary S. looked in the
mirror and saw blood and bruising.
Appellant next pushed Mary S. on the bed and asked whether she was thinking
about her ex-husband. Mary S. thought appellant wanted sex and told him several times
she did not want intercourse. Mary S. said she ultimately “play[ed] the part” and gave up
resisting because she did not want appellant to hit her. She reclined passively and told
appellant she loved him. Appellant penetrated her vagina and ejaculated. Mary S. said
the sensation was the same as when they engaged in consensual sex. At one point,
appellant expressed interest in anal sex but Mary S. declined and appellant did not pursue
the topic further.
After engaging in intercourse, appellant told Mary S. to wash up. He filled the
bathtub with water that was too hot for her but she still got in because she did not want to
get hit or killed. Appellant washed her and then took a shower himself. Appellant then
reclined on the bed and watched a pornographic movie. He tied his leg to Mary S.’s with
his belt. Mary S. lay on the bed while appellant watched the movie. Appellant made
additional threats to kill Mary S., who was frightened. At one point, he looked at the
ceiling and told Mary S. he was looking for a place to hang her.
The couple left the Best Motel between 6:30 a.m. and 7:00 a.m. the next day.
Mary S. told appellant she felt ill. She said she was having trouble with her heart and
with high blood pressure. She asked appellant to take her to Kern Medical Center
(KMC). Appellant agreed to drive her to KMC. Along the way, they stopped at a busy
gas station and appellant went inside the store to pay for fuel and beverages. Mary S. did
not attempt to flee during their journey between Mojave and KMC because she was
afraid appellant would catch her and beat her.

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8.
Mary S. said once she entered KMC and was alone with hospital personnel, she
told them that appellant had kidnapped, raped, and attempted to kill her. She also said he
kept her against her will. However, hospital personnel did not conduct a rape test on her.
Mary S. believed they declined to conduct a test because she bathed. A few days after
her visit to the hospital, she threw away the clothes she wore during her incident with
appellant.
Mary S. spoke to Deputy Sheriff John Abbott at KMC and said she gave him a
“full report.” Deputy Abbott told her she would have to make a report with the Shafter
Police Department. Shafter Police Officer Chris Jackson subsequently interviewed Mary
S. on two occasions and spoke with her on several additional occasions. Mary S. told
Officer Jackson that appellant forced her into the car, took her to Reyes’s home, and then
took her to Lake Ming, where he bruised her arm, shoulder, and eye. Mary S. also told
Officer Jackson about the pruning shears. She mentioned that appellant looked at the
motel room ceiling and said he was seeking to install a hook so he could hang her. Mary
S. told Officer Jackson that appellant grabbed her and pulled her back into the car, that he
attempted anal sex, and that he made her get into “extremely hot” bath water.
Officer Jackson also conducted a tape-recorded interview with appellant. The
prosecution played the taped interview for the jury. The prosecution also lodged a
transcript of the recording with the court. Appellant told Officer Jackson he became
jealous over Mary S.’s contact with Alberto Reyes. Appellant said he suspected that
Reyes had been calling Mary S. prior to Father’s Day. Appellant admitted destroying
one of their telephones out of jealousy over Reyes.
Appellant said he and Mary S. confronted Reyes twice at the latter’s home.
Appellant then drove Mary S. to Lake Ming so they could get some “air” and “calm
down.” He denied taking her to Lake Ming against her will. When they arrived at Lake
Ming, Mary S. said she was tired of appellant bringing up the topic of Reyes. Appellant
became concerned that she would start to scream, run away, and attract the attention of

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9.
law enforcement. Appellant grabbed and stretched Mary S.’s sweater and pulled Mary S.
into the car. Appellant said this caused bruises to her arm and eye.
Appellant and Mary S. spent the night in a Mojave motel because the car was
acting up. They ate, had sex, and watched television. Appellant said they were “okay” at
first. However, he brought up the topic of Reyes again and that caused them to argue.
Appellant said Mary S. started screaming. He assumed she was tired of him bringing up
the subject of Reyes. Appellant said he did not want Mary S. to attract attention so he put
his hand over her mouth. His fingernail nicked her lip and caused it to bleed. Mary S.
accused appellant of trying to kill her but he denied it.
The following day, Mary S. complained she was ill and claimed she was having a
heart attack. Appellant took her to KMC but suspected she said something about how he
had treated her. Appellant said the hospital staff would not tell him whether Mary S. was
okay and when she was coming out from treatment. Security people came up and sat in
front of him. A deputy sheriff eventually appeared and questioned appellant and then
Mary S. The deputy placed appellant under arrest. During their tape-recorded interview,
appellant told Officer Jackson, “... I’m really sorry for what happened, you know.”
Defense
Tom Lee, manager of the Best Motel in Mojave, testified he was on duty the
evening of June 20, 2005. He received no complaints about anything, including screams
or loud noises. Lee said appellant and Mary S. were assigned to room 111 during their
stay. The telephone in that room was functioning and the ice machine was located just
outside the motel office, about 150 to 200 feet from room 111.
Mercedes J. Bloomers, R.N., a supervising nurse at KMC, testified that a female
patient can wash away semen by taking a bath or shower. However, that does not
eliminate other information that can be gained from administration of a rape kit.
Bloomers said it is up to law enforcement to request the administration of a rape kit upon
a patient. She testified KMC personnel informed law enforcement about Mary S.’s

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allegations but law enforcement did not request a rape kit. Bloomers did not specifically
recall Mary S. making an accusation of rape.
Kern County Deputy Sheriff John Abbott said he went to KMC at 9:14 a.m. on
June 21, 2005. Mary S. told him there was a struggle in a vehicle and she received minor
injuries as a result. Deputy Abbott saw some light bruising on the corner of her right eye
and to the inside of her right bicep. Mary S. told him that appellant kidnapped her from
Shafter and then took her to Lake Ming and Mojave. She did not tell Abbott that
appellant raped her. Abbott could not recall whether Mary S. said that appellant
smothered her with a pillow, put a rag in her mouth, bound and gagged her, or threatened
to kill her.
Deputy Abbott said he did not ask for a rape examination because Mary S. did not
allege rape. He said his investigation was limited to what had occurred at Lake Ming.
Deputy Abbott notified the Shafter Police Department and advised them that a further
investigation might be needed.
DISCUSSION
On appeal, appellant raises multiple issues, three of which pertain to his count VII
conviction of misdemeanor cohabitant battery (§ 243) and the six-month concurrent
sentence imposed thereon. Those contentions are: (1) failure to instruct on jury
unanimity; (2) conviction of a lesser included offense of which appellant is convicted in
count II, and (3) the sentence imposed must be stayed pursuant to section 654. We will
find merit to appellant’s second contention, reverse the judgment of conviction on count
VII, and thus find it unnecessary to address appellant’s other contentions as to that count.
Finally, we will address and reject appellant’s contentions of sentencing errors
pertaining to counts II and VIII.

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11.
I.
THE BATTERY CONVICTION IN COUNT VII IS A LESSER INCLUDED
OFFENSE OF INFLICTION OF CORPORAL INJURY OF WHICH
APPELLANT WAS CONVICTED IN COUNT II
A. The Information, Prosecution Argument, Instructions, and Forms of Verdict
The district attorney alleged in count II of the information:
“ON OR ABOUT AND BETWEEN JUNE 19, 2005 TO JUNE 21, 2005,
JOSE LUIS DELGADILLO, DID WILLFULLY AND UNLAWFULLY
INFLICT A CORPORAL INJURY RESULTING IN A TRAUMATIC
CONDITION UPON MARY S., WHO WAS A PERSON
COHABITATING WITH DEFENDANT, IN VIOLATION OF PENAL
CODE SECTION 273.5(A), A FELONY.”
The district attorney alleged in count VII of the information:
“ON OR ABOUT JUNE 20, 2005, JOSE LUIS DELGADILLO, DID
WILLFULLY AND UNLAWFULLY HAVE OR ACCOMPLISH AN
ACT OF SEXUAL INTERCOURSE WITH A PERSON, TO WIT: MARY
S., NOT HIS/HER SPOUSE, AGAINST SAID PERSON’S WILL, BY
MEANS OF FORCE, VIOLENCE OR FEAR OF IMMEDIATE OR
UNLAWFUL BODILY INJURY ON SAID PERSON OR ANOTHER, IN
VIOLATION OF PENAL CODE SECTION 261(A) (2), A FELONY. [¶]
IT IS FURTHER ALLEGED THAT THE ABOVE OFFENSE IS A
SERIOUS FELONY WITHIN THE MEANING OF PENAL CODE
SECTION 1192.7(C) (3).”
At the reported conference on jury instructions, the court proposed to instruct the
jury on battery and assault as lesser offenses of that charged in count II. Defense counsel
specifically indicated he had no objection to the giving of instructions on those lesser
offenses. The court also proposed to instruct the jury in CALJIC No. 3.30 (concurrence
of act and general criminal intent) with respect to battery upon a cohabitant, battery, and
assault as lesser offenses of the crime of rape charged in count VII. The court invited
comments and defense counsel interposed no objection to the proposed instruction.
As to count II, the prosecutor argued to the jury:

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12.
“Now the second count is a violation of Penal Code Section 273.5
subdivision A. We commonly refer to this as domestic violence or spousal
abuse. It doesn’t have to be limited to a married relationship. The law is
that cohabitants, and you heard the testimony that these two lived together
out on Sycamore in Shafter, California. And in order to prove this, there’s
two elements that need to be shown. These elements are independent of the
two elements that I previously spoke of it the attempted murder.
“First Jose Delgadillo willfully inflicted bodily injury upon a cohabitant,
Mary [S.], and bodily injury resulted in traumatic condition. Ladies and
gentlemen, he struck her in the face, causing that black eye. And you have
photographs. The photographs are in evidence. And the photographs show
the injury. And you may look at the photographs and say, well, that’s not
real bad injuries. They’re not life threatening injuries. But under the law a
traumatic condition, which is what is required, is a condition of the body,
such as a wound or external or internal injury, whether of a minor or
serious nature, caused by physical force.
“[Mary S.] told you of injuries she sustained to her shoulder as a result of
his attack, she told you of injuries sustained to her eye as a result of his
attack. Those occurred at Lake Ming. She also talked about injuries that
she sustained on her arm, also occurring at Lake Ming. And then we have
additional injuries. The injury that occurred while she was in the motel
room when he shoved the rag in her mouth, when he split her lip open and
she bled and she had to, she had to go to the bathroom and clean herself up.
Those are all injuries that are traumatic conditions. Like I said, the law
says, not me, the law says the injuries can be minor or serious. That’s the
second count. Did this person, Jose Delgadillo, who was living with Mary
[S.] as a cohabitant in a romantic, intimate relationship, did he inflict bodily
injury resulting in traumatic condition? There’s no doubt about it, he
certainly did.”
As to count VII, the prosecutor argued to the jury:
“… Count seven is the rape. Oftentimes when we see rape in a movie or on
television it is a stranger and it’s violent and clothes are torn and knives are
at throats, and it is very dramatic. [¶] Ladies and gentlemen, this isn’t
television. This isn’t scripted. It is not designed to wind up in a nice, tidy
package at the end of an hour or two hours. This is real life. And
sometimes in real life people that know each other, people that have an
intimate relationship with each other can be involved in a rape, and that’s
what we have here, ladies and gentlemen. And it is not my opinion that this

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can happen. The law says that this can happen. And that’s what’s
important here. The law says that this can happen.
“What are the elements to the charge of rape as alleged in count seven of
the Information? Well, the first element is that a male and female engaged
in an act of sexual intercourse. There’s no dispute that sex was had.
There’s no dispute that the participants in the sexual intercourse at the Best
Motel in Mojave, California, were Jose Delgadillo and Mary [S.]. And it’s
not disputed that before that they had had a sexual relationship. None of
that is in dispute.
“Second element, the two persons were not married to each other at the
time of the act of sexual intercourse. They lived together. They were
boyfriend and girlfriend. But they were not married to each other.
“Three, the act of the intercourse was against the will of the alleged victim.
Well, the alleged victim, that’s Mary [S.], and she told you that she said,
no, I don’t want to have sex with you at least three times, but he ignored
her.
“Why should we believe Mary [S.] told him I don’t want to have sex with
you? Well, let’s think about the events that led up to this. Okay. They get
in the fight in the morning because of his jealousy. He forces her to go
over to her ex-husband’s house. They leave the ex-husband’s house, they
drive to AM/PM. Then he drives her to Lake Ming. At that point she
wants to get away and tries to walk away from the car, and he won’t let her.
He grabs her and yanks her back in, punches her in the face, and locks her
in the car and drives all the while threatening her, threatening to kill her.
“When they get to Mojave, he checks into a room, but before he leaves the
car he tells her, I can see you—parks right in front of the windows—I can
see you, I’ll be watching you, and she testified, Mary [S.] testified, in fact,
he did watch her through the window. Then he makes her go into this hotel
room out in Mojave and while in there he suddenly says, after doing all of
these violent acts towards her, it’s time to have sex. Not exactly foreplay,
ladies and gentlemen, not exactly romantic.
“The only reason she was even in that motel room is because he had forced
her to go there. He had kidnapped her, pulled her back into that car, driven
there, threatening her, threatening her with death, threatening that he would
kill her and leave her body and no one would ever find it.

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14.
“At some point she couldn’t fight anymore, and that’s when he decided to
do what he wanted to do. Not what she wanted to do, what he wanted to
do.
“Final ingredient, the final element, the act was accomplished by means of
force, violence, duress, menace, or fear of immediate and unlawfully bodily
injury to Mary [S.]. I just covered that, ladies and gentlemen. The only
reason she’s even in that motel room is because of his violence. The only
reason she’s in that hotel room is because of his menace, his threats. He’s
already tried to kill her. He already shoved a rag in her mouth, put a pillow
over her heard. He’s already done all of those things by the time he decides
he now wants to have sex.
“Ladies and gentlemen, that is violence, that is force, that is duress, that is
menace, that is fear of immediate and unlawfully bodily injury.”
Among many other instructions, the court gave the jury CALJIC No. 3.30, which
stated:
“And in the crimes charged in counts two, three, and seven, namely,
spousal abuse, kidnapping, and rape, and the crimes of battery upon a co-
inhabitant, battery, and assault, which are lesser crimes, there must exist a
union or joint operation of act, conduct, and general criminal intent.
“General criminal intent does not require an intent to violate the law for
when a person intentionally does that which the law declares to be a crime,
he is acting with general criminal intent even though he may not know that
his act or conduct is unlawful.”
The court also gave CALJIC No. 17.12 (jury may return partial verdict—non-
homicide—express acquittal—first), which stated:
“Now if you are not satisfied beyond a reasonable doubt that the defendant
is guilty of a crime of which he is accused and you unanimously so find,
you may convict him of any lesser crime provided you are satisfied beyond
a reasonable doubt that he is guilty of the lesser crime.
“You will be provided with guilty and not guilty verdict forms for the
crimes charged and lesser crimes thereto.
“Thus you are to determine whether the defendant is guilty or not guilty of
the crimes charged or of any lesser crimes. And in doing so you have

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discretion to choose the order in which you evaluate each crime and
consider the evidence pertaining to it.
“You may find it to be productive to consider and reach tentative
conclusions on all charges and lesser crimes before reaching a final verdict.
“Before you return any final or formal verdict, you must be guided by the
following: If you unanimously find the defendant guilty of the crime for
which he is accused, your foreperson should sign and date the
corresponding verdict form. All other verdict forms must be left unsigned.
“If you are unable to reach a unanimous verdict as to the crime of which the
defendant is accused, do not sign any verdict forms and report your
disagreement to the Court. The Court cannot accept a guilty verdict on a
lesser crime unless the jury also unanimously finds and returns a signed
verdict form of not guilty as to the charged or greater crime.
“If you . . . unanimously agree and find defendant not guilty of the crime
for which he is charged and cannot reach a unanimous agreement as to the
lesser crime, your foreperson should sign and date the not guilty verdict
form as to the charged or greater crime and report your disagreement as to
the lesser crime to the Court.”
As to count II, the court subsequently provided the jury with forms of verdict for
the substantive crime charged as well as the lesser included offenses of misdemeanor
battery upon a cohabitant (§ 243, subd. (e)(1)), misdemeanor battery (§ 243), and
misdemeanor assault (§ 240). As to count VII, the court subsequently provided the jury
with forms of verdict for the substantive crime charged (rape by force) as well as the
“lesser but necessarily included offense[s]” of misdemeanor battery (§ 243) and
misdemeanor assault (§ 240).
B. Verdicts and Argument on Appeal
As to count II, the jury rendered a guilty verdict of felony infliction of corporal
injury upon a cohabitant. As to count VII, the jury rendered a not guilty verdict on the
charged offense of rape by force and instead rendered a guilty verdict on the lesser
included offense of misdemeanor battery (§ 243).
Appellant now argues:

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16.
“A defendant cannot be convicted of both a greater including and a lesser
included offense if both are based on the same conduct. (People v. Ortega
[(1998)] 19 Cal.4[th] 686, 699 [where defendant is convicted of both
robbery and the lesser included crime of theft based on the same conduct,
theft conviction cannot stand.]) Here, the State relied on virtually the same
acts to prove both count two and seven. The prosecutor contended that
appellant committed count two by inflicting the bruises and eye injury on
[Mary S.] at Lake Ming and giving her a split lip due to gagging her at the
motel. As noted, in regards to count seven, the jury was given the option
of convicting appellant of battery as a lesser offense to the charge of rape.
The prosecutor’s argument did not address battery per se but instead
focused on the greater crime of rape. It asserted that appellant committed
the non-consensual sexual intercourse as a result of his use of force and
violence against [Mary S.], i.e., inflicting the bruises and eye injury at Lake
Ming, kidnapping her, giving her a split lip due to gagging her at the motel,
and putting the pillow over her head until she nearly blacked out at the
motel.
“Thus, the prosecutor relied on the same acts to prove both counts two and
seven, except (1) he argued that count seven was also committed via use of
the pillow and (2) by virtue [of] the kidnapping reference, possibly
suggested it was committed by appellant’s holding on to [Mary S.]’s seat
belt. Notably, the prosecutor did not present either additional act as a
distinct basis for the battery conviction, and it is evident from the verdicts
that the count seven conviction was not based on them. The prosecutor
heavily relied on the pillow use to prove count one, attempted murder, but
the jury acquitted appellant of this offense and of the lesser crime of
attempted manslaughter. Further, the jury hung on the charge of
kidnapping in count three, to which the seatbelt holding related.
“Because counts two and seven constitute greater including and lesser
included offenses based on the same facts, count seven must be reversed.”
C. Governing Law
A defendant may be charged in a single pleading with two or more different
offenses connected together in their commission. The prosecution need not elect between
those offenses. The defendant may be convicted of any number of the offenses charged.
(§ 954.) This permits the charging of the same offense on alternative legal theories so
that a prosecutor in doubt need not decide at the outset what particular offense can be
proved by evidence not yet presented. (People v. Ryan (2006) 138 Cal.App.4th 360,

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368.) As a result, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. In California, a single act or
course of conduct by a defendant can lead to convictions of any number of the offenses
charged. Section 954 generally permits multiple convictions. Section 654 is its statutory
counterpart and prohibits multiple punishment for the same act or omission. When
section 954 permits multiple conviction but section 654 prohibits multiple punishment,
the trial court must stay execution of sentence on the convictions for which multiple
punishment is prohibited. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
A judicially created exception to the general rule permitting multiple convictions
prohibits multiple convictions based on necessarily included offenses. If a crime cannot
be committed without also necessarily committing a lesser offense, the latter is a lesser
included offense within the former. A defendant may be convicted of an uncharged
crime if, but only if, the uncharged crime is necessarily included in the charged crime.
The reason for this rule rests on constitutional grounds. Due process of law requires that
an accused be advised of the charges so that he or she may have a reasonable opportunity
to prepare and present a defense. The required notice is provided as to any charged
offense and any lesser offense necessarily committed when the charged offense is
committed. (People v. Reed, supra, 38 Cal.4th at p. 1227.)
California courts have applied two tests in determining whether an uncharged
offense is necessarily included within a charged offense: the elements test and the
accusatory pleading test. Under the elements test, if the statutory elements of the greater
offense include all of the statutory elements of the lesser offense, the latter is necessarily
included in the former. Under the accusatory pleading test, if the facts alleged in the
accusatory pleading include all of the elements of the lesser offense, the latter is
necessarily included in the former. Only a statutorily lesser included offense is subject to
the bar against multiple convictions in the same proceeding. An offense that may be a

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lesser included offense because of the specific nature of the accusatory pleading is not
subject to the same bar. (People v. Reed, supra, 38 Cal.4th at pp. 1227-1231.)
Section 273.5, subdivision (a), as charged in count II, is a battery offense. The
offense is a general intent crime that entails a use of force resulting in an injury. (People
v. Thurston (1999) 71 Cal.App.4th 1050, 1053-1055.) Section 261, subdivision (a)(2), as
charged in count VII, is an act of sexual intercourse accomplished with a person not the
spouse of the perpetrator against the person’s will by means of force or violence and is
also a general intent crime. (People v. Guerra (2006) 37 Cal.4th 1067, 1130; People v.
Griffin (2004) 33 Cal.4th 1015, 1022.) In the instant appeal, respondent does not (a)
draw a distinction between the elements test and the accusatory pleading test; (b)
expressly apply either test to the facts of the instant case; or (c) dispute the notion that
misdemeanor battery (§ 243, subd. (e)(1)) is a lesser included offense of the offenses
charged in counts II and VII.
Rather, respondent initially contends the reasonable inference is that “in finding
appellant guilty of section 243, subdivision (e)(1), the jury necessarily believed that
appellant committed a battery when he either shoved a rag in Mary S.’s mouth, or when
he put the pillow over her face.” In other words, respondent first maintains that the jury
looked only to acts of battery at the Best Motel when rendering their verdict on count
VII. Respondent then goes on to offer an alternative argument. In that latter argument,
respondent acknowledges that battery (§ 243, subd. (e)(1))3 is a lesser included offense of
3 Section 243 focuses on the actual injury inflicted and not on the force used.
(People v. Mansfield (1988) 200 Cal.App.3d 82, 88.) Moreover, section 243 addresses
the result of conduct rather than proscribing specific conduct. (People v. Bertoldo (1978)
77 Cal.App.3d 627, 633.) Section 243 does not include a definition of the term “battery.”
As defined in section 242, battery is “any willful and unlawful use of force or violence
upon the person of another.” Force against the person is enough. Such force need not be
violent or severe, need not cause bodily harm or even pain, and need not leave any mark.
(People v. Longoria (1995) 34 Cal.App.4th 12, 16.) The least unprivileged touching

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section 273.5 and further acknowledges that the prosecutor cited the same acts to
establish battery of a cohabitant with respect to both count II and count VII. Respondent
then concludes that “assuming the jury found appellant guilty of violating section 273.5
in count II based on the same acts constituting battery of a cohabitant in count VII, then
the conviction in count VII can not stand.”
Respondent’s alternate conclusion is well-taken. From the instant record we
cannot determine the precise factual basis for the verdict in count VII. The jury may very
well have used appellant’s conduct at Lake Ming to render a verdict of guilt on count II
and appellant’s conduct at the Best Motel to render a verdict of guilt of misdemeanor
battery, a lesser offense of that charged in count VII. However, there is no way of
knowing this and it is equally likely the jury used appellant’s conduct at Lake Ming (or
all or any other part of appellant’s conduct) to render the verdicts on both counts II and
VII. Under these circumstances, reversal of the judgment of conviction and sentence on
count VII is required. (People v. Castaneda (1997) 55 Cal.App.4th 1067, 1071.)
II.
IMPOSITION OF AN UPPER TERM ON COUNT II AND A
CONSECUTIVE TERM ON COUNT VIII
Appellant contends that imposition of the upper term on count II and a consecutive
term on count VIII violated his rights to due process and trial by jury because such terms
were not based on facts found by a jury beyond a reasonable doubt.
A. The Sentencing Hearing
On October 28, 2005, the court conducted a sentencing hearing and considered
various motions and pleadings filed by respective counsel. These included a defense
may constitute a criminal battery. (County of Santa Clara v. Willis (1986) 179
Cal.App.3d 1240, 1251, fn. 6.)

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request to strike appellant’s prior strike conviction for purposes of sentencing (§ 1385)
and a request to reduce counts II and VI to misdemeanors.
After hearing the arguments of counsel, the court ultimately ruled:
“… First of all, in terms of the motions that have been filed, the request of
the Court to consider Romero principles as it might relate to the strike prior,
which is found to be true, the Court has reviewed the record of Mr.
Delgadillo. The strike prior is a conviction of Penal Code Section 261.2,
which occurred in 1990. Apparently he was discharged from parole in
1994.
“The Court considers the nature of that offense, crime of which 261.2 is, in
the Court’s estimation, a very serious crime, one which, of course, is one
that carries with it the concern of the criminal justice system and the law,
the laws of the State of California, that person who commits such a crime is
a person who’s considered to be extremely -- well, considered to be one
given the Evidence Code Sections that allow that evidence to be used in
subsequent prosecutions on the theory that prior conduct of that nature is
highly probative of proving substantive conduct. The Court’s of the
considered opinion that legislative recognition of that principle specifically
related to sexual crimes does reflect the ... legislature’s concern that there is
propensity aspects to previous conduct that relate to future conduct.
“And therefore, the Court does consider that as ... a basis for considering a
prior conviction of such offense as being one that makes that prior
conviction a very serious conviction and one which is not one which is
lightly considered for sentencing purposes in the future.
“His record other than that conviction between that time and the present
time is de minimis, and that’s recognized by the Court, basically a driving
under the influence offense in 2003 and driving without a license in 1994.
“The present events as reflected in the evidence, and certainly as reflected
in the conviction of the Penal Code Section 273.5 offense does again reflect
conduct by the defendant that reflects violence toward person of the
opposite sex. And the Court is of the concern that Mr. Delgadillo’s
previous conviction and the conviction for the current offense is of a nature
that reflects a continuing perspective about his relationships with persons of
the opposite sex that make the Court extremely reticent to strike the
previous conviction on the basis of Romero principles in that it is
determined by the Court that he continues to be a person who’s willing to

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engage in inappropriate conduct directed toward the person of the opposite
sex, which is conduct that is violent or potentially violent, and therefore,
that is heavily weighted factor in determining whether to strike that
previous conviction.
“The Court’s of the considered opinion that his failure to register under
Penal Code Section 290 again reflects on his, in effect, lack of willingness
to comport his conduct and his life-style to the requirements of the law, that
is to continue to register because of the requirements of Penal Code Section
290, and so the Court does consider that, as well as conviction in this case
of a serious disregard for his responsibilities arising out of the first
conviction that ... causes the Court again to think that he is a person who is
not willing to comport his requirements under the law with those
requirements as the law abiding citizen to keep in contact with law
enforcement given that mandate under the law.
“So under the circumstances, the Court cannot conclude that he is a person
who has at this point in his life become a person whose life and events and
his interaction with other people is such that it is outside the purposes of the
intents of the Romero case and line of cases, and therefore, the Court does
not intend to strike the 667 E prior allegation, which is one that’s been
proved in the course of this litigation.
“As to the motion to reduce count two to a misdemeanor, I incorporate the
comments I have heretofore made, and given his history of violent conduct
toward person of the opposite sex on previous occasion and conviction for
that offense, the events and circumstances surrounding his conviction on
this charge are doubly meaningful and again reflects continuing outlook by
him upon persons of the opposite sex which is of the serious concern to the
Court, and therefore, I do deny the motion to denominate count two as a
misdemeanor.
“As to count six, the Court’s of the considered opinion that the offense as
alleged, if I understand and recall correctly ... the throwing of a ... [¶]…[¶]
[c]ordless phone ... and disabling of that phone. The Court’s of the
considered opinion that the changing technology of our society which
reflects communication through cordless and/or ... cell phones, that the
statute which was passed some period ago had to do with phone lines, land
lines which reflected different technology underlying the passage of that
crime, that whereas case law has said that this particular charge would fall
within that statute, nevertheless, the Court’s of the considered opinion this
offense is one that’s a relatively minor nature, and therefore, the Court will
grant the motion as to count six and denominate count six as a

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misdemeanor and will so order punishment within the parameters of the
misdemeanor conviction as to count six.”
The court went on to impose sentence:
“The Court having considered those requests of counsel does make the
following orders: Probation is denied for the reason the offense herein
reflected is offense of such serious nature that the conviction for the offense
in count two is to the degree and extent seriousness that grant of probation
would be the inappropriate response, and therefore, probation is denied.
“He is sentenced to the Department of Corrections as to count two for the
upper term, which is doubled, pursuant to Section 667 E for the upper term
of eight years.
“It is further ordered that he provide and comply with Section 296 of the
Penal Code and provide blood and saliva samples for DNA testing,
thumbprint and palmprint impressions of each hand pursuant to that
section.
“It is further ordered as to count eight, the Court likewise denying the
application of Section 17 principles of count eight, probation is denied, he
is sentenced to the Department of Corrections for the mid-term, which is
doubled pursuant to Section 667 E and orders that all but one third of that
be served consecutive to the term imposed in count two, for a period of 16
months.
“And the Court does order that that, as indicated, be served consecutive, for
a total fixed term of nine years eight months. The Court does order that
restitution in the amount of $94.92 be paid pursuant to Penal Code Section
1202.4 F in an amount to be determined and an additional amount to be
determined by the Probation Department at the direction of the Court to
[Mary S.] for medical expenses and related losses.
“Also ordered the defendant pay restitution in an amount to be determined
by the Probation Department at the direction of the Court and payable to
restitution fund pursuant to Penal Code Section 1202.4 F 2, for victim
compensation and government claims boards reimbursement to the victim.
“Further ordered that Mr. Delgadillo pay the sums of 20, 200, and $200
respectively under Penal Code Sections 1465.8, 1202.4 B, and 1202.45, the
Court entering an order suspending that last amount subject to any parole
revocation proceedings that might be initiated by the Department of
Corrections.

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“It is also ordered that as to count four, probation be denied. The defendant
is sentenced to the Kern County jail for a period of one year. That sentence
is ordered to be served concurrent with those sentences imposed as to count
two.
“And as to count six, the defendant is sentenced to the term of one year.
And that term is to be served concurrent with the sentences previously
imposed as to count two.
“And as to count seven, probation is denied, he is sentenced to the Kern
County jail for a period of six months. That sentence is ordered to be
served concurrent with the sentence imposed in count two.”
B. Appellant’s Contention
Appellant contends:
“The trial court imposed the upper term for count two, infliction of corporal
injury, and decided to run the terms for count eight, failure to register as a
sex offender, consecutively to it. The trial court did not explicitly articulate
reasons for these two sentencing choices. To the extent that it gave
reasons, it did so in connection with ruling on appellant’s motions to strike
his prior strike conviction and to reduce certain counts to misdemeanors.
The trial court stated that (1) appellant had a prior conviction for the ‘very
serious’ crime of rape; (2) the nature of appellant’s prior conviction and the
circumstances of the present offenses demonstrate appellant’s willingness
to abuse women; and (3) appellant’s current conviction for failure to
register as a sex offender demonstrates his unwillingness to abide by the
law.
“These factual findings were made by the trial court under the
preponderance of the evidence standard, not by the jury beyond a
reasonable doubt. This violated appellant’s Sixth Amendment right to trial
by jury and Fifth and Fourteenth Amendment right to proof beyond a
reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466 ... and
Blakely v. Washington (2004) 542 U.S. 296 . . ..”
We address appellant’s contentions in turn.
C. Reasons for Upper Term
A sentencing court is required to provide a statement of reasons on the record for
selecting and imposing the upper term. (§ 1170, subd. (b); Cal. Rules of Court, rule
4.406(b).) The trial court overlooked this requirement when sentencing appellant on

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October 28, 2005. However, appellant cannot challenge the error directly because
counsel failed to object on this basis at sentencing. (People v. Tillman (2000) 22 Cal.4th
300, 302-303 [failure of sentencing court to make findings required by statute is waived
if party fails to bring error to sentencing court’s attention]; People v. Scott (1994) 9
Cal.4th 331, 348 [defects in the trial court’s statement of reasons at sentencing are
waived unless challenged at the time of sentencing].)
D. Apprendi/Blakely/Cunningham Error in the Imposition of an Upper Term of
Imprisonment
Appellant contends the trial court erroneously imposed an upper term of
imprisonment on count II because it was based on “factual findings ... made by the trial
court under the preponderance of the evidence standard, not by the jury beyond a
reasonable doubt.”
In Blakely v. Washington (2004) 542 U.S. 296, the United States Supreme Court
reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi): “‘Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting
Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court
reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S.
220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black), the California Supreme Court
considered the effect of Apprendi and Blakely on this state’s Determinate Sentencing
Law and held that the imposition of upper terms does not constitute an increase in the
penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding

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that occurs when a judge exercises discretion to impose an upper term sentence ... does
not implicate a defendant’s Sixth Amendment rights to a jury trial.” (Black, supra, 35
Cal.4th at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court held California’s
Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment
rights to a jury trial to the extent it permits a trial court to impose an upper term based on
facts—other than the fact of a prior conviction—found by the court rather than by a jury
beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial
guarantee proscribes a sentencing scheme that allows a judge to impose a
sentence above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant. Apprendi v.
New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 …
(2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v.
Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’
this Court has clarified, ‘is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any
additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in
original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to
Booker point to the middle term specified in California’s statutes, not the
upper term, as the relevant statutory maximum. Because the DSL
[Determinate Sentencing Law] authorizes the judge, not the jury, to find the
facts permitting an upper term sentence, the system cannot withstand
measurement against our Sixth Amendment precedent.” (Cunningham,
supra, 127 S.Ct. at pp. 860, 871, fn. omitted.)
Under California law, it is settled that only a single aggravating factor is required
to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v.
Earley (2004) 122 Cal.App.4th 542, 550.) As appellant points out, the trial court did not
explicitly articulate reasons for its sentencing choices as it imposed sentence. To the
extent the court gave reasons, it did so in connection with ruling on appellant’s motion to
strike his prior strike conviction and to reduce certain counts to misdemeanors. As noted

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above, these rulings occurred immediately prior to the imposition of sentence. In
rendering those rulings on appellant’s motion, the court stated that (1) appellant had a
prior conviction for the “very serious” crime of rape; (2) the nature of appellant’s prior
conviction and the circumstances of the present offenses demonstrated appellant’s
willingness to abuse women; and (3) appellant’s current conviction for failure to register
as a sex offender demonstrates his unwillingness to abide by the law. The trial court’s
conclusions were clearly predicated on jury findings made upon proof beyond a
reasonable doubt. To paraphrase Apprendi, the facts increasing the penalty for
appellant’s crime beyond a prescribed statutory maximum had been submitted to a jury
and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.)
The trial court imposed an upper term based on judicially-found facts deemed
constitutionally permissible under Apprendi, Blakely, and Cunningham. Resentencing is
not required on count II.
E. Apprendi/Blakely/Cunningham Error in the Imposition of Consecutive Terms
of Imprisonment
Appellant further contends the trial court erroneously imposed a consecutive term
on count VIII because it was not based upon facts found by a jury beyond a reasonable
doubt.
In Black, supra, 35 Cal.4th 1238, the California Supreme Court held that “a jury
trial is not required on the aggravating factors that justify imposition of consecutive
sentences.” (Id. at p. 1262.) That holding was not overturned by Cunningham, which
did not address the distinct issue of imposition of consecutive sentencing for separate
crimes. Our Supreme Court has held that a judge’s imposition of consecutive sentencing
does not impermissibly increase the penalty for a crime beyond the prescribed statutory
maximum. (Id. at pp. 1262-1264; accord State v. Kahapea (Hawaii 2006) 141 P.3d 440,
451-453 [collecting cases].) Our Supreme Court’s holding is binding on this court.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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27.
The trial court’s imposition of a consecutive term on count VIII did not violate
appellant’s rights to a jury trial and due process of law.
DISPOSITION
The judgment of conviction and sentence on count VII is reversed. In all other
respects the judgment is affirmed. The superior court is directed to amend its records and
transmit copies of the amended record to all appropriate parties and entities.
_____________________
HARRIS, Acting P.J.
WE CONCUR:
_____________________
WISEMAN, J.
_____________________
KANE, J.

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