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					Filed 6/29/99
                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION THREE



THE PEOPLE,                                        B114681

        Plaintiff and Respondent,                  (Super. Ct. No. TA036184)

        v.

GREGORY TOMMIE JONES,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County.
Francis J. Hourigan, III, Judge. Affirmed.

        Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.

        Daniel Lungren, Attorney General, George Williamson, Chief Assistant Attorney
General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz,
Supervising Deputy Attorney General, and Brad D. Levenson, Deputy Attorney General,
for Plaintiff and Respondent.
                             __________________________




*      The Introduction, Factual Summary, Part 7 of the Discussion, and the Disposition
are Certified for Publication.
                                     INTRODUCTION

       Gregory Tommie Jones appeals from the judgment entered following his

convictions by jury of forcible rape (Pen. Code, § 261, subd. (a)(2)),1 three counts of

forcible sodomy (§ 286, subd. (c)), and one count of forcible oral copulation (§ 288a,

subd. (c)), with findings as to each offense (§ 667.61, subds. (a), (c)) that Jones

committed aggravated kidnapping (§ 667.61, subd. (d)(2)), kidnapping (§ 667.61, subd.

(e)(1)), and personally used a deadly weapon (§§ 667.61, subds. (e)(4), 12022.3, subd.

(a)). Jones was sentenced to prison for 105 years to life, including three consecutive 25-

years-to-life terms.

       Section 667.61, subdivision (a), of the One Strike Law mandates that a term of 25

years to life be imposed for specified sexual crimes committed in specific aggravating

circumstances. Section 667.61, subdivision (g), mandates that that term be imposed on a

defendant “once for any offense or offenses committed against a single victim during a

single occasion.” The issue we address in the published portion of this opinion relates to

how we interpret the phrase “single occasion.” In doing so, we rely on the language of

section 667.6, subdivision (d), (which mandates consecutive sentences for specified

sexual crimes), and hold that when sexual crimes involve the same victim on “separate

occasions” within the meaning of section 667.6, subdivision (d), then it is also true that

each such crime has been committed against a single victim during a different “single

occasion” within the meaning of section 667.61, subdivision (g).


1      Unless otherwise indicated, all statutory references are to the Penal Code.
       Accordingly, in the published portion of the discussion of this opinion, we hold

that the trial court properly sentenced Jones to prison for three consecutive terms of 25

years to life for forcible rape, forcible sodomy, and forcible oral copulation (counts one,

two, and five, respectively) pursuant to sections 667.61, subdivision (g), and 667.6,

subdivision (d).2

                                 FACTUAL SUMMARY

       1. People’s Evidence.

       Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6

Cal.4th 1199, 1206), the evidence established that at about 8:30 p.m. on July 23, 1996,

Carolyn F., whose speech and hearing were impaired, began walking home from a

friend’s house located near Century and Vermont. She was under the influence of alcohol

and narcotics. After she approached an alley, Jones, a neighborhood beggar, forced her

into a filthy garage.


2      In the unpublished portion of this opinion, we hold there was sufficient evidence
that Jones used a deadly weapon “in the commission” of his offenses for purposes of the
section 12022.3, subdivision (a), and section 667.61, subdivision (e)(4), allegations; no
prejudicial error occurred when the court, using a modified CALJIC No. 17.19.1A,
instructed on the meaning of the phrase “in the commission” for purposes of section
12022.3, subdivision (a); and the court did not reversibly err by instructing the jury as to
each count using special instruction “AA” pertaining to weapon use and kidnapping
pursuant to section 667.61, subdivision (e).
       We also hold in the unpublished portion of this opinion that the court did not
reversibly err by instructing, using CALJIC No. 2.28, on Jones’s counsel’s nondisclosure
of her friendship with a defense expert witness; the court did not err by instructing on
reasonable doubt pursuant to CALJIC No. 2.90; and Jones’s sentence consisting of 30
years for three section 12022.3, subdivision (a), enhancements, plus a consecutive term of
25 years to life for each of counts one, two, and five, was not cruel or unusual
punishment.


                                              3
       Jones opened the driver’s door of a car and forced Carolyn F. into the back seat.

Jones was “sitting on this side.” Jones was sitting as he removed his pants; he was not

wearing underwear. Jones took his clothes off. While Jones was choking and hitting

Carolyn F., both of them removed her clothes.

       Jones pulled on the back of Carolyn F.’s hair and, while hitting her head, put his

penis in her mouth. (Count five; forcible oral copulation.) She tried to get away, but

Jones kept hitting her. At one point, Jones slapped her and told her to “do it deeper.”

Jones pushed Carolyn F.’s head “hard on it, deeper.” She testified that Jones had his

penis in her mouth “like 30 minutes, or something,” a “really long time.”

       Jones subsequently caused Carolyn F. to recline on the seat with her legs up to her

shoulders. Jones, who was hitting her and had his hands on her throat, put his penis in her

vagina. (Count one; forcible rape.) Jones then pulled Carolyn F.’s legs up as high as he

could, near her head, and put his penis in her anus three times. (Counts two through four;

three counts of forcible sodomy.) The three anal penetrations occurred over a period of

about an hour. During the period from the time Carolyn F. orally copulated Jones until

the time “he had done the anal penetration,” Jones’s penis was erect. She guessed that the

period was about an hour and a half.

       Jones later got out of the car. Carolyn F. reached for her clothing, but Jones pulled

it away and pushed her back in the car. Jones subsequently reached into a slit in the car

roof and retrieved a knife. Jones put the knife to her face. Shortly thereafter, Jones left.3


3       Carolyn F. later ran screaming back to her friend’s house. Carolyn F. indicated to
her friend that Carolyn F. had been beaten and raped. She also indicated that she “had a

                                              4
       2. Defense Evidence.

       In defense, Matthew Wilson, a trauma surgeon, reviewed medical records of an

injury Jones suffered on July 4, 1996. The records indicated Jones suffered a fractured

right thumb. According to Wilson, the injury would have taken about six weeks to heal,

and a person with this injury would not have been able to sustain a grabbing or choking

motion. Wilson also reviewed photographic slides of Carolyn F.’s anal examination.

Wilson concluded there was no evidence of tears or lacerations.

       Ronald Miller, a gynecologist and obstetrician, reviewed slides of Carolyn F.’s

vaginal examination. Miller opined that Carolyn F.’s vaginal area appeared to be normal,

and there appeared to be no tears or lacerations. Miller also opined that the absence of

injury did not rule out nonconsensual sex, but did rule out visible injury.




knife on her throat.” The next morning, Carolyn F. went to an outreach center. She was
crying and frightened. She wrote a note to a volunteer worker, stating that she had been
raped and asking that the police be summoned. The police were summoned and a police
officer interviewed Carolyn F. She was crying, scared, and distraught. Based upon the
note, she was taken to the hospital.
        At the hospital, Chris McClung, a sexual assault nurse examiner, examined
Carolyn F. McClung observed she was very emotional and indicated that she had pain in
her neck, throat, and rectal area. Carolyn F. had abrasions on her lower left leg and
discoloration around her neck. An examination revealed vaginal tearing consistent with a
“mounting injur[y],” and there was also “a lot of redness.” Such tearing was unlikely, but
not impossible, during consensual sex. In Carolyn F.’s anal area, McClung observed
abrasions, small tears, and white-yellowish secretions which were not normal for the
rectal area. Carolyn F.’s history and injuries corroborated her account of the attacks. On
about July 30, 1996, a detective took Carolyn F. to the crime scene. She observed Jones
walking down the street, identified him, and Jones was arrested.

                                              5
                                      CONTENTIONS

       Jones contends: (1) there was no evidence he used a deadly weapon “in the

commission of” the offenses and the 10-year section 12022.3, subdivision (a),

enhancements must be reversed; (2) there was no evidence of use of a deadly weapon “in

the commission of” the charged offenses within the meaning of the section 667.61,

subdivision (e)(4), allegations and the true findings must be vacated; (3) the trial court

erred in defining “in the commission of” for purposes of the section 12022.3, subdivision

(a), enhancement, therefore, the true findings must be reversed and the punishment must

be vacated; (4) the trial court erred in instructing the jury pursuant to special instruction

“AA,” since the instruction constituted an erroneous and misleading statement of the law;

(5) the trial court erred in giving CALJIC No. 2.28 on the theory that defense counsel

violated the discovery rules by failing to disclose evidence of her prior friendship with

one of her expert witnesses; (6) Jones was denied due process when the trial court gave

the jury an inadequate reasonable doubt instruction; (7) the trial court erroneously

imposed consecutive life terms on counts two and five contrary to the clear statutory

language of section 667.61, subdivision (g), therefore, remand for resentencing is

required; and, (8) his sentence constitutes cruel and unusual punishment under the federal

and state Constitutions.




                                               6
                                      DISCUSSION

       1. There Was Sufficient Evidence To Support The True Findings As To The
Section 12022.3, Subdivision (a), Enhancement Allegations.

       Jones contends there was no evidence he used a deadly weapon “in the

commission of” the offenses, and the 10-year section 12022.3, subdivision (a),

enhancements must be reversed. Jones’s contention is based on the fact that he used the

knife after the final act of sodomy. We reject the contention. The “commission” of a

sexual offense specified in section 12022.3, subdivision (a), does not end with the

completion of the sex act, but continues as long as the assailant maintains control over the

victim. Accordingly, in light of the facts set forth in the factual summary, there was

sufficient evidence supporting the true findings as to the section 12022.3, subdivision (a),

enhancement allegations, including sufficient evidence that, within the meaning of that

section, Jones “use[d] a . . . deadly weapon in the commission” of the offenses of which

he was convicted. (People v. Castro (1994) 27 Cal.App.4th 578, 582-586.)4

       2. There Was Sufficient Evidence To Support The True Findings As To The
Section 667.61, Subdivision (e)(4), Allegations.

       Jones contends there was no evidence of use of a deadly weapon “in the

commission of” the charged offenses within the meaning of the section 667.61,

subdivision (e)(4), allegations, and the true findings must be vacated. We disagree. Jones



4      We are aware that, on this issue, Castro disagrees with People v. Dobson (1988)
205 Cal.App.3d 496, cited by Jones. (See People v. Masbruch (1996) 13 Cal.4th 1001,
1012.)

                                             7
concedes that the phrase “in the commission” in section 12022.3, subdivision (a), means

the same thing as that phrase in section 667.61, subdivision (e)(4). Based on our

discussion in part 1., above, there was sufficient evidence to support the true findings as

to the section 667.61, subdivision (e)(4), allegations, including sufficient evidence that,

within the meaning of that subdivision, Jones “personally used a dangerous or deadly

weapon . . . in the commission” of the offenses of which he was convicted. (Cf. People v.

Jones (1997) 58 Cal.App.4th 693, 699, 708-710; People v. Castro, supra, 27 Cal.App.4th

at pp. 582-586.)5

       Moreover, as discussed in part 7, infra, we note that only as to counts one, two,

and five did the court impose terms of 25 years to life pursuant to section 667.61,

subdivision (a), and then only pursuant to the subdivision (d)(2), aggravated kidnapping

findings. Even if true findings as to the subdivision (e)(4), allegations pertaining to each

of those counts were improper with the result that two subdivision (e), circumstances

pertaining to each count were unavailable as a basis for imposition of a term of 25 years

to life for each count pursuant to subdivision (a), the single true finding as to the

subdivision (d)(2), allegation pertaining to each count permitted imposition of those

terms. Therefore, any erroneous findings as to subdivision (e)(4), allegations were not

prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)6




5      See fn. 4, ante.

6     As to counts three and four, we note Jones was not sentenced pursuant to section
667.61, subdivision (a), but pursuant to section 1170.1.

                                               8
       3. The Court Properly Instructed On Section 12022.3, Subdivision (a).

       Jones contends the trial court erred in defining “in the commission of” for

purposes of the section 12022.3, subdivision (a), enhancement, therefore the true findings

must be reversed and the punishment therefor must be vacated. We conclude otherwise.

The court, using CALJIC No. 17.19.1, instructed on personal use of a deadly weapon

within the meaning of section 12022.3, subdivision (a).7

The court, using a modified CALJIC No. 17.19.1A, defined the phrase “in the

commission of” in the context of the use of a weapon in the commission of an offense.8

       During deliberations, the jury submitted the following written request to the court:

“Clarification of use of a weapon as an aid in completing an essential element of the

offense. Ref 17.19.1A” (Original underscoring.) The court proposed to further modify



7      That instruction read: “It is alleged [in Count[s] 1 thru 5] that the defendant
personally [used] [a deadly weapon] during the commission of the crimes charged. [¶] If
you find the defendant guilty of the crime charged, you must determine whether the
defendant personally [used] [a deadly weapon] in the commission of that crime. [¶] [A
‘deadly weapon’ is any object, instrument, or weapon which is used in such a manner as
to be capable of producing, and likely to produce, death or great bodily harm.] [¶] [The
term ‘personally used a [a deadly weapon],’ as used in this instruction, means that the
defendant must have intentionally displayed a [deadly weapon] in a menacing manner, or
intentionally struck or hit a human being with it.] [¶] The People have the burden of
proving the truth of this allegation. If you have a reasonable doubt that it is true, you
must find it to be not true. [¶] Include a special finding on that question in your verdict,
using a form that will be supplied for that purpose.”

8      That instruction read: “For the purposes of these instructions, ‘in the commission
of’ means use of a weapon as an aid in completing an essential element of the offense, or
use of the weapon increases the risk of physical injury to the victim. [¶] The weapon
need not be displayed or used throughout the commission of the offense.”

                                             9
CALJIC No. 17.19.1A; Jones objected that the instruction was clear without further

modification. The court further modified the instruction to read: “[t]he crime of rape or

sodomy continues after the sex act, but while the perpetrator maintains control over the

victim.” The court reread the instruction, with the further modification, to the jury.

       Jones claims that the initially modified CALJIC No. 17.19.1A instruction was

erroneous, only because it states that “‘in the commission of’ means use of a weapon as

an aid in completing an essential element of the offense, . . .” Jones claims this language

is improper because the evidence in the present case established that the weapon use

occurred after the sex offenses. However, the above quoted language correctly stated the

law (cf. People v. Masbruch, supra, 13 Cal.4th at pp. 1006-1007), at least to the extent

that weapon use in a given case does not occur after completion of the sexual acts.

       The real issue is whether, because Jones’s weapon use occurred after the sexual

acts, use of the previously quoted language was error because there was no evidence to

support it. However, there is no need to decide that issue, because we conclude any such

error was harmless. Again, as far as it went, the previously quoted language correctly

stated the law. Jones conceded below that the initially modified instruction was clear, and

objected to further modification of it. The jury did not expressly state the language was

confusing, but only asked for clarification.

       The court then further modified the instruction to read, “[t]he crime of rape or

sodomy continues after the sex act, but while the perpetrator maintains control over the

victim.” The court then reread the instruction to the jury, as further modified. The

further modification was a correct statement of law, and was supported by the evidence

                                               10
that, after the sex acts were completed, Jones threatened Carolyn F. with a knife. (People

v. Castro, supra, 27 Cal.App.4th at pp. 582-586.) The jury is presumed to have followed

as a whole the instructions given to them. (People v. Archer (1989) 215 Cal.App.3d 197,

204; People v. Martinez (1978) 82 Cal.App.3d 1, 19.)

       There was no indication of jury confusion after the instruction was reread to the

jury as further modified. Additionally, there was overwhelming evidence that, after the

sex acts, Jones held a knife to Carolyn F.’s face while maintaining control over her. We

conclude that any error in giving the initially modified CALJIC No. 17.19.1A to the jury

was harmless under any conceivable standard. (People v. Watson, supra, 46 Cal.2d at p.

836; Chapman v. California (1967) 386 U.S. 18, 24.)

       Jones claims that the further modified CALJIC No. 17.19.1A instruction was

erroneous. Again, we have concluded above that the giving of the instruction, as further

modified, was proper. (People v. Castro, supra, 27 Cal.App.4th at pp. 582-586.)

Contrary to Jones’s suggestion, nothing in the record indicates that the court was

“telegraphing” to the jury that its motivation for asking clarification was irrelevant; the

fact of the further modification indicated the opposite. Nor, as Jones claims, did the

further modification tell the jury that “‘in the commission of’ really includes ‘after the

commission’ of the specified sex crimes . . . .” The further modification correctly

permitted the jury to find the section 12022.3, subdivision (a), allegations true based on

the continued commission of the offenses after the completed sex acts. (People v. Castro,

supra, 27 Cal.App.4th at pp. 581, 586.)



                                             11
        4. The Court Did Not Reversibly Err By Instructing Using Special Instruction
“AA.”

        Jones contends the trial court erred in instructing the jury pursuant to special

instruction “AA,” since the instruction constituted an erroneous and misleading statement

of the law. As discussed in part 3, above, the court, using CALJIC No. 17.19.1,

instructed on personal use of a deadly weapon within the meaning of section 12022.3,

subdivision (a). The court also, using the twice modified CALJIC No. 17.19.1A, defined

the phrase “in the commission of” using language based on People v. Castro, supra.

        The court also instructed, as to each count, on “Kidnapping & Movement for a

Substantial Distance During Sex Crimes (PC Section 667.61(a)&(d)),” using special

instruction “1A.”9 (Italics added.) The court also instructed, as to each count, on “Use of

a Deadly Weapon & Kidnapping During Sex Crimes (PC Section 667.61(a)-(e)),” using




9      That written instruction read: “It is alleged in Counts 1 thru 5 that the Defendant
kidnapped the victim, and that the movement of the victim substantially increased the risk
of harm to the victim over and above that level of risk necessarily inherent in the
underlying offense, a violation of Penal Code Section 667.61 (a) and (d). [Italics added.]
[¶] [Brief movements to facilitate the crime of Rape are incidental to the commission of
Rape [and thus not a violation of the law]. On the other hand, movements to facilitate the
Rape that are for a substantial distance, rather than brief, are not incidental to the
commission of the Rape.] [¶] For purposes of this instruction, the definition of
kidnapping is contained in [CALJIC INSTRUCTION 9.50] [in the instructions I have
previously read to you]. [¶] If you find the defendant guilty of . . . the crime charged in
Counts 1 thru 5, you must determine whether this allegation is true. [¶] The People have
the burden of proving the truth of this allegation. If you have a reasonable doubt that it is
true, you must find it to be not true. [¶] You will include a special finding on that
question in your verdict, using a form that will be supplied for that purpose.” The court’s
corresponding oral instruction omitted the sentence pertaining to CALJIC No. 9.50,
although the court subsequently read CALJIC No. 9.50.

                                              12
special instruction “AA.”10 (Italics added.) The court told the jury it would be given the

written instructions.

       Jones claims the section 667.61, subdivision (d), aggravated kidnapping findings

must be set aside because special instruction “AA” “combined ‘kidnap’ and ‘use of a

deadly or dangerous weapon’ into a single instruction, misleading the factfinder into

believing there were two components to the allegation in issue, over and above the single

component allegation of kidnapping contained in special instruction ‘1A.’”

       We reject Jones’s claim. The written special instruction “1A” expressly referred to

“(PC Section 667.61 . . . (d))” (italics added), and did not expressly refer to subdivision

(e). The court’s written and oral instructions as to special instruction

“1A” stated that counts one through five alleged “a violation of Penal Code section

667.61. . . (d).” (Italics added.) The court’s written and oral instructions as to special

instruction “1A” also stated that, if the jury convicted Jones of the counts, it “must

determine whether this allegation is true.” (Italics added.)



10      That written instruction read: “It is alleged in Counts 1, 2, 3, 4 and 5 that the
Defendant kidnapped the victim, and personally used a deadly or dangerous weapon. [¶]
For purposes of this instruction, a knife is a deadly or dangerous weapon. [¶] For
purposes of this instruction, the definition of kidnapping is contained in [CALJIC
INSTRUCTION 9.50] [in the instructions I have previously read to you]. [¶] If you find
the defendant guilty of the crimes charged in Counts 1 thru 5 you must determine whether
this allegation is true. [¶] The People have the burden of proving the truth of this
allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
[¶] You will include a special finding on this question in your verdict, using a form that
will be supplied for that purpose.” The court’s corresponding oral instruction omitted the
sentence pertaining to CALJIC No. 9.50, although the court subsequently read CALJIC
No. 9.50.


                                              13
       On the other hand, the written special instruction “AA” referred to “(PC Section

667.61 (a)-(e))” (italics added) and, notwithstanding the hyphen, did not expressly use the

letter “(d).” The court’s written and oral instructions as to special instruction “AA” also

stated that, if the jury convicted Jones of the counts, it “must determine whether this

allegation is true.” (Italics added.) Unlike special instruction “1A,” special instruction

“AA” did not contain the phrase “the movement of the victim substantially increased the

risk of harm to the victim over and above that level of risk necessarily inherent in the

underlying offense.”

       Based on the above, it is clear that special instruction “1A” pertained only to the

section 667.61, subdivision (d)(2), aggravated kidnapping allegation, and special

instruction “AA” pertained only to the subdivision (e)(1), and (e)(4), kidnapping and use

of a deadly weapon allegations, respectively. We conclude there is no reasonably

likelihood (People v. Kelly (1992) 1 Cal.4th 495, 525) that, as Jones asserts, the jury

understood special instruction “AA” to refer to the aggravated kidnapping allegation

which was the subject of special instruction “1A.”11 Accordingly, the subdivision (d)(2),

aggravated kidnapping findings need not be set aside because of special instruction “AA.”

The fact that both special instructions used the word “kidnapped” does not, as Jones

suggests, compel a contrary conclusion.


11      Jones also asserts, “[k]idnapping is referenced in subdivision (d)(2) and weapon
use is contained in subdivision (e)(4). There is no single subparagraph combining the two
proscribed conducts.” The assertion is irrelevant, since the kidnapping referred to in
special instruction “AA” pertains to the kidnapping referenced in subdivision (e)(1), not
(d)(2).


                                             14
        Jones, citing subdivision (e)(4), also claims special instruction “AA” erroneously

failed to instruct that the weapon had to be used “in the commission of” the offenses.

There is no need to decide the issue. Subdivision (e)(4), applies if “the defendant

personally used a dangerous or deadly weapon . . . in the commission of the present

offense in violation of Section . . . , 12022.3, . . .” The sole evidence that Jones used a

knife was the evidence that he removed it from the car roof and held it to Carolyn F.’s

face.

        We have concluded in part 3, above, that the jury was properly instructed pursuant

to CALJIC No. 17.19.1, and the twice modified CALJIC No. 17.19.1A, on personal use

of a deadly weapon “in the commission of” the substantive offenses for purposes of

section 12022.3, subdivision (a). The jury found true the section 12022.3, subdivision

(a), enhancement allegations. Therefore, apart from whether special instruction “AA”

erroneously failed to instruct that the weapon had to be used “in the commission of” the

offenses, the factual question posed by the alleged omission was necessarily resolved

adversely to Jones under other, properly given instructions. (People v. Sedeno (1974) 10

Cal.3d 703, 721; People v. Jones, supra, 58 Cal.App.4th at pp. 699, 708-710; People v.

DeJesus (1995) 38 Cal.App.4th 1, 18.) Accordingly, the section 667.61, subdivision

(e)(4), findings need not be set aside.12




12     Even if the subdivision (e)(4) findings needed to be set aside, our conclusion in the
second full paragraph of part 2, above, that no prejudice would follow, applies with equal
force here.

                                              15
         5. The Court’s Instructing The Jury Using CALJIC No. 2.28 Was Not Reversible
Error.

         Jones contends the trial court erred in giving CALJIC No. 2.28 on the theory that

defense counsel violated the discovery rules by failing to disclose evidence of her prior

friendship with one of her expert witnesses. The contention is unavailing. On May 1,

1997, during the prosecutor’s cross-examination of Wilson, and outside the presence of

the jury, the prosecutor told the court that the prosecutor learned on April 30, 1997, that

Wilson and Jones’s counsel were friends. During later cross-examination, Wilson

testified that, one week before his testimony, he first reviewed Carolyn F.’s anal slides in

the home of Jones’s counsel. Wilson and Jones’s counsel were very good friends, and

had known each other for many years.

         During discussions concerning proposed jury instructions, the prosecutor asked the

court to give CALJIC No. 2.28, pertaining to a failure to timely produce evidence. The

prosecutor asked that the instruction reflect that the prosecutor first learned about the

above friendship during an admissibility hearing. Jones’s counsel indicated she had not

told the prosecutor about the friendship as of commencement of jury selection, and the

prosecutor found out only during a later admissibility hearing. Jones objected to the

instruction, urging that the friendship was irrelevant, Jones’s counsel and Wilson saw

each other perhaps once a year, and there had not been discovery noncompliance.

         The court gave the instruction to the jury. The instruction stated, inter alia, that

Jones “failed to timely disclose the following evidence: the prior friendship of Dr. Wilson


                                                16
and defense counsel.”13 The prosecutor argued to the jury that Wilson lied to the jury and

was biased, and the friendship between Jones’s counsel and Wilson had not been

disclosed to the prosecutor.

       Based on the above, we have doubts as to whether Jones’s nondisclosure

constituted a failure to disclose to the prosecutor (1) the information specified in section

1054.3, subdivision (a); or (2) “real evidence” within the meaning of section 1054.3,

subdivision (b), with the result that the giving of CALJIC No. 2.28 was proper. However,

there is no need to decide the issue.

       We conclude that the alleged instructional error does not warrant reversal of the

judgment. The jury properly heard evidence concerning the friendship, permitting the

jury to infer bias. CALJIC No. 2.28 told the jury that the weight and significance of any

delayed disclosure were matters for the jury’s consideration. The jury was further

instructed that it should consider whether the untimely disclosed evidence pertained to a



13      The instruction read: “The prosecution and the defense are required to disclose to
each other before trial the evidence each intend to present at trial so as to promote the
ascertainment of the truth, save court time, and avoid any surprise which may arise during
the course of the trial. [¶] Delay in disclosure of evidence may deny a party a sufficient
opportunity to subpoena necessary witnesses or to produce evidence which may exist to
rebut the non-complying party’s evidence. [¶] Disclosure of evidence is required to be
made at least 30 days in advance of trial. Any new evidence discovered within 30 days of
trial must be disclosed immediately. [¶] In this case, the defendant failed to timely
disclose the following evidence: the prior friendship of Dr. Wilson and defense counsel.
[¶] Although defendant’s failure to timely disclose evidence was without lawful
justification, the court has under the law permitted the production of this evidence during
the trial. The weight and significance of any delayed disclosure are matters for your
consideration. [¶] However, you should consider whether the untimely disclosed
evidence pertains to a fact of importance, something trivial, or some subject matters
already established by other credible evidence.”

                                             17
fact of importance, something trivial, or subject matters already established by other

credible evidence.

       The instruction did not expressly relate the nondisclosure to an element of the

offense or, for that matter, to any particular issue. The prosecutor was free to argue

Wilson’s bias even absent CALJIC No. 2.28. The jury’s verdicts do not reflect that,

because Wilson but not Miller was referred to in CALJIC No. 2.28, the jury treated the

experts differently; the verdicts reflect the jury rejected any evidence from either expert

negating forcible penetrations or suggesting the crimes did not occur. There was

overwhelming evidence of Jones’s guilt. Therefore, any error in giving CALJIC No. 2.28

was harmless under any conceivable standard. (People v. Watson, supra, 46 Cal.2d at p.

836; Chapman v. California, supra, 386 U.S. at p. 24.)

       6. The Giving Of CALJIC No. 2.90 Was Not Reversible Error.

       Jones contends he was denied due process when the court gave the jury an

inadequate reasonable doubt instruction. We reject the contention. The court gave

CALJIC No. 2.90 to the jury14 but, Jones’s arguments notwithstanding, that instruction

correctly stated the law, and the court did not err by giving it. (People v. Freeman (1994)



14      That instruction read, “A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a reasonable doubt whether [his] guilt
is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption
places upon the People the burden of proving [him] guilty beyond a reasonable doubt. [¶]
Reasonable doubt is defined as follows: It is not a mere possible doubt; because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.”

                                             18
8 Cal.4th 450, 501-504, fn. 9, 505; People v. Light (1996) 44 Cal.App.4th 879, 884-889;

People v. Torres (1996) 43 Cal.App.4th 1073, 1077-1078.)

      7. The Court Properly Imposed Consecutive Terms Of 25 Years To Life On Each
Of Counts One, Two, And Five Pursuant To The One Strike Law And Section 667.6,
Subdivision (d).

       Jones contends “the trial court erroneously imposed consecutive life terms on

counts two and five contrary to the clear statutory language of section 667.61, subdivision

(g) and therefore remand for resentencing is required.” Jones does not dispute his prison

sentence of 25 years to life on count one (forcible rape) pursuant to the One Strike Law,

but claims the trial court erred by imposing such a sentence on each of counts two and

five (forcible sodomy and forcible oral copulation), and by imposing consecutive

sentences as to each of the three counts. We reject the contention.

       By way of overview, section 667.61, part of the One Strike Law, mandates certain

indeterminate life sentences for specified sexual crimes committed in specific aggravating

circumstances. Section 667.6, subdivision (d), mandates consecutive sentencing for

specified sexual crimes. In our discussion below, we conclude that when sexual crimes

involve the same victim on “separate occasions” within the meaning of section 667.6,

subdivision (d), then it is also true that each such crime has been committed against a

single victim during a different “single occasion” within the meaning of section 667.61,

subdivision (g). In such a circumstance, a One Strike Law sentence must be imposed for

each crime.




                                            19
       As a result, we hold that counts one, two, and five in the present case involved the

same victim on “separate occasions” within the meaning of section 667.6, subdivision (d);

each crime was committed against a single victim during a different “single occasion”

within the meaning of section 667.61, subdivision (g); and the trial court properly

sentenced Jones to prison for 25 years to life on counts two and five. We also hold the

trial court properly imposed consecutive sentences as to counts one, two, and five

pursuant to section 667.6, subdivision (d).

           a. Pertinent Proceedings.

       After the trial court sentenced Jones on the section 12022.3, subdivision (a),

allegations, it indicated that it would impose sentence as to counts one through five. It

found there were aggravating factors15 but no mitigating factors, and stated it would

incorporate the aggravating factors in each of its sentencing decisions.

       The trial court stated, “[f]irst, the court has to consider 667.6 (d), to determine

whether concurrent or consecutive sentencing should be imposed. [¶] And the question

the court has to ask is whether each crime occurred on a separate occasion with the same

victim. [¶] As I said earlier, these events occurred over about a two-hour period of time,

in the car, in the garage, in the alley. [¶] The question the court has to ask is between the

commission of one sex crime and the next, did the defendant have a reasonable




15      As to aggravating factors, the court stated that Carolyn F. was a small, deaf mute,
while Jones was a substantially sized person; accordingly, she was vulnerable. The court
also observed the crimes involved planning, and a threat of great bodily harm beyond the
fact that the offenses were sexual crimes.

                                              20
opportunity to reflect on his actions, and then resume sexually assaultive behavior. Is one

sex act really incidental to the next.”

       It then concluded, “[b]ased upon the factual findings the court has previously

enumerated, the court believes that these are three distinct and separate violations of

[Carolyn F.]. [¶] First, she was forced to orally copulate the defendant. When that was

concluded, there was a forcible rape. And when that was concluded, there was a forcible

sodomy, where entry was made at least three times. [¶] So the court is incorporating

those findings under 667.6 (d), and finding that each sex crime enumerated, that is, the

oral copulation, the rape, and the sodomy, occurred on a separate occasion with the same

victim.”

       The trial court imposed sentence on counts one, two, and five pursuant to section

667.61, subdivisions (a), (c), and (d)(2). The court also imposed full, separate, and

consecutive terms on those counts pursuant to section 667.6, subdivision (d).

Accordingly, Jones was sentenced, on each of counts one, two, and five, to a consecutive

term of 25 years to life, plus a 10-year upper term pursuant to section 12022.3,

subdivision (a). Sentence was imposed on counts three and four pursuant to section

1170.1.16 As to each of counts three and four, Jones was sentenced to a concurrent eight-




16      The trial court observed, “I am sentencing under 1170.1 as to those two counts.
[¶] But since the court is -- this is simply an exercise of sentencing discretion because of
the total length of the sentence. This court believes it could have found reasons, if it
chose, to sentence full consecutive on 3 and 4, but I chose not to.”


                                             21
year upper term; a 10-year upper term for the section 12022.3, subdivision (a),

enhancement was stayed.

          b. Satisfaction Of The “Separate Occasions” Standard of Section 667.6,
Subdivision (d), Also Satisfies The “Single Occasion” Standard of Section 667.61,
Subdivision (g).

       Effective November 30, 1994, section 667.61 was added as part of what is

commonly known as the One Strike Law17 and, in relevant part, the section read the same

as it did in 1996, that is, at the time of the present offenses. In general, that law requires

imposition of an indeterminate life term (as relevant to the present case, 25 years to life



17        See People v. Rayford (1994) 9 Cal.4th 1, 8; section 667.61, added by Stats. 1993-
1994, 1st Ex. Sess., ch. 14 (SB 26), § 1; Gov’t. Code, § 9600, subd. (a). In 1994, section
667.61 provided, in relevant part, “(a) A person who is convicted of an offense specified
in subdivision (c) under one or more of the circumstances specified in subdivision (d) or
under two or more of the circumstances specified in subdivision (e) shall be punished by
imprisonment in the state prison for life and shall not be eligible for release on parole for
25 years . . . . [¶] . . . [¶] (c) This section shall apply to any of the following offenses:
(1) A violation of paragraph (2) of subdivision (a) of Section 261. [¶] . . . [¶] (6)
Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the victim or another person.
[¶] . . . [¶] (d) The following circumstances shall apply to the offenses specified in
subdivision (c): [¶] . . . [¶] (2) The defendant kidnapped the victim of the present
offense and the movement of the victim substantially increased the risk of harm to the
victim over and above that level of risk necessarily inherent in the underlying offense in
subdivision (c). [¶] . . . [¶] (e) The following circumstances shall apply to the offenses
specified in subdivision (c): [¶] (1) Except as provided in paragraph (2) of subdivision
(d), the defendant kidnapped the victim of the present offense in violation of Section 207,
208, 209, or 209.5. [¶] . . . [¶] (4) 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, or 12022.5. [¶] . . . [¶] (g) 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 in subdivision (a) or (b) shall be imposed on the defendant once for each
separate victim. Terms for other offenses committed during a single occasion shall be
imposed as authorized under any other law, including Section 667.6, if applicable.”

                                              22
[section 667.61, subdivision (a)]), for specified sexual offenses committed under specific

aggravating circumstances. (People v. Jones (1997) 58 Cal.App.4th 693, 703.)

       Section 667.61, subdivision (g), provides, in relevant part, that “[t]he term

specified in subdivision (a) . . . shall be imposed on the defendant once for any offense or

offenses committed against a single victim during a single occasion.” (Italics added.)

Thus, if counts one, two, and five each occurred during a different “single occasion,” it

would appear that section 667.61 requires an imposition of the specified term as to each

count. However, that section does not specify whether those terms are to be served

concurrently or consecutively.

       Moreover, section 667.61 does not expressly define the term “single occasion,”

and its meaning is not plain; we must therefore construe it. “‘The fundamental purpose of

statutory construction is to ascertain the intent of the lawmakers so as to effectuate the

purpose of the law. [Citations.] In order to determine this intent, we begin by examining

the language of the statute. [Citations.] But “[i]t is a settled principle of statutory

interpretation that language of a statute should not be given a literal meaning if doing so

would result in absurd consequences which the Legislature did not intend.” [Citations.]

Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to

conform to the spirit of the act.” [Citation.] Finally, we do not construe statutes in

isolation, but rather read every statute “with reference to the entire scheme of law of

which it is part so that the whole may be harmonized and retain effectiveness.”

[Citation.]’” (People v. Thomas (1992) 4 Cal.4th 206, 210.)



                                               23
       “The Legislature ‘is deemed to be aware of statutes and judicial decisions already

in existence, and to have enacted . . . a statute in light thereof.’” (People v. McGuire

(1993) 14 Cal.App.4th 687, 694.) Accordingly, when legislation has been judicially

construed and a subsequent statute on a similar subject uses identical or substantially

similar language, the usual presumption is that the Legislature intended the same

construction, unless a contrary intent clearly appears. (In re Jerry R. (1994) 29

Cal.App.4th 1432, 1437.) These principles require that, in construing section 667.61,

subdivision (g), we also examine section 667.6, subdivision (d), as well as its history and

construction.

       Section 667.61 was enacted after section 667.6, subdivision (d). Section 667.6,

subdivision (d), enacted in 1979, provided for mandatory consecutive sentencing for

specified sexual offenses.18 In relevant part, it required imposition of a full, separate, and

consecutive term for specified sexual crimes if they involved “the same victim on

separate occasions.” (Italics added.)




18      As added, section 667.6, subdivision (d), read, in relevant part, “(d) [a] full,
separate, and consecutive term shall be served for each violation of subdivision (2) or (3)
of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of
committing sodomy or oral copulation in violation of Section 286 or 288a by force,
violence, duress, menace or threat of great bodily harm if such crimes involve separate
victims or involve the same victim on separate occasions.” (§ 667.6, subd. (d), added by
Stats. 1979, ch. 944, p. 3258, § 10.)


                                             24
       In 1986, that section was amended by the insertion of a second paragraph19 which

stated, in relevant part, that “[i]n determining whether crimes against a single victim were

committed on separate occasions under this subdivision, the court shall consider whether,

between the commission of one sex crime and another, the defendant had a reasonable

opportunity to reflect upon his or her actions and nevertheless resumed sexually

assaultive behavior.” (Italics added.) Although subdivision (d), underwent further

amendment, both the second paragraph inserted in 1986, as well as the “same victim on

separate occasions” language, remained unchanged and were “already in existence”

(People v. McGuire, supra, 14 Cal.App.4th at p. 694) when, in 1994, section 667.61

became effective.

       Section 667.61, and section 667.6, subdivision (d), both pertain to sentencing, and

relate to sexual offenses only. Six of the eight sexual offenses specified in section 667.61

when it was enacted were also, at that time, specified in section 667.6, subdivision (d).20


19       The second paragraph read: “[i]n determining whether crimes against a single
victim were committed on separate occasions under this subdivision, the court shall
consider whether, between the commission of one sex crime and another, the defendant
had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed
sexually assaultive behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of
itself, determinative on the issue of whether the crimes in question occurred on separate
occasions.” (§ 667.6, subd. (d), amended by Stats. 1986, ch. 1431, § 1.)

20     When section 667.61 was enacted, both that section and section 667.6, subdivision
(d), applied to violations of six offenses, i.e., (1) sections 261, subdivision (a)(2); (2)
264.1; (3) 288, subdivision (b); (4) 289, subdivision (a); and specified acts of (5) forcible
sodomy or (6) forcible oral copulation in violation of 286 or 288a, respectively. Section
667.61, but not section 667.6, subdivision (d), also applied to violations of section 262,
subdivision (a)(1), and 288, subdivision (a). Section 667.6, subdivision (d), was later
amended to apply to violations of section 262, subdivision (a)(1).

                                             25
In addition, section 667.61, subdivision (g), expressly refers to section 667.6. As the

court in People v. Jackson (1998) 66 Cal.App.4th 182, observed, “. . . this reference

reflects the Legislature’s awareness of the combined effect of these two provisions on the

length of sentences. [Fn. omitted.]” (Id. at p. 193.)

       Judicial decisions determining the applicability of the “same occasions” language

of section 667.6, subdivision (d), preexisted the enactment of section 667.61, and the

latter section used “substantially similar language” (In re Jerry R., supra, 29 Cal.App.4th

at p. 1437), that is, the phrase “single occasion.” Even before section 667.61 was

enacted, judicial decisions had applied the “reasonable opportunity to reflect” test of

section 667.6, subdivision (d), to decide whether sexual crimes involved the same victim

on “separate occasions” within the meaning of that section, reaching varying results.

(See, e.g., People v. Pena (1992) 7 Cal.App.4th 1294, 1313-1316 [sexual offenses not

committed on “separate occasions”]; People v. Corona (1988) 206 Cal.App.3d 13, 16-18

[certain sexual offenses committed on “separate occasions”; others not].)

       Lastly, section 667.61 and section 667.6, subdivision (d), interrelate and overlap.

Section 667.61 can apply when a defendant commits a single specified sexual offense, or

multiple specified sexual offenses. (§ 667.61, subd. (c).) On the other hand, section

667.6 subdivision (d), applies only when a defendant commits multiple specified sexual

offenses. (People v. Jones (1988) 46 Cal.3d 585, 595.) Thus, if a defendant commits a

single sexual offense specified in sections 667.61 and 667.6, subdivision (d), the former

section could apply but the latter section would not. On the other hand, if the defendant



                                             26
committed multiple sexual offenses specified in sections 667.61 and 667.6, subdivision

(d), both sections could apply.

       Based on the foregoing, we conclude that when crimes involve the same victim on

“separate occasions” within the meaning of section 667.6, subdivision (d), then each such

crime also has been committed against a single victim during a different “single

occasion” within the meaning of section 667.61, subdivision (g).

(Cf. People v. Thomas, supra, 4 Cal.4th at p. 210; In re Jerry R., supra, 29 Cal.App.4th at

p. 1437; People v. McGuire, supra, 14 Cal.App.4th at p. 694.)21

          c. Since Each Crime Was Committed Against A Single Victim On A Different
“Single Occasion” For Purposes Of The One Strike Law, The Court Properly Imposed
Terms Of 25 Years To Life On Counts Two And Five.

            (1) Counts One, Two, and Five Were Each Committed On A Different
“Single Occasion” For Purposes Of The One Strike Law.

       In this case, the offenses at issue occurred in the following sequence: forcible oral

copulation (count five), forcible rape (count one), and forcible sodomy (count two). The

court imposed a 25-years-to-life term as to each of these counts; Jones contends this was

error as to counts five and two.

       We turn to pertinent section 667.6, subdivision (d), case law. In People v. Plaza

(1995) 41 Cal.App.4th 377, in relevant part, the defendant forcibly caused a woman to

orally copulate him in a bathroom (count one). The defendant then took her to a

bedroom, where he pushed her onto a bed and forcibly penetrated her vagina with a


21     At this point, we rely on section 667.6, subdivision (d), solely to decide whether,
under section 667.61, sentences must be imposed; we will later address the issue of
whether they must be served consecutively.

                                             27
foreign object, i.e., his fingers (count four). The defendant later withdrew his fingers but

continued to restrain the victim while he listened to messages on an answering machine.

The defendant subsequently forced the victim to orally copulate him (count two).

Afterwards, the defendant withdrew his penis and, remaining on top of the victim, slid his

body down. He then repeatedly slapped the victim’s face, and verbally abused her, for

several minutes. The defendant then kicked the victim’s legs apart, and raped her (count

three). The defendant subsequently placed the victim on top of him and raped her again.

The defendant later withdrew his penis, pushed the victim down, and forced her to orally

copulate him. After answering the telephone several times, the defendant again forced

the victim to orally copulate him (count seven). (People v. Plaza, supra, 41 Cal.App.4th

at pp. 380-381, 384-385.)

       The defendant was convicted on counts one, two, three, four, and seven. The court

sentenced the defendant to prison for 30 years, i.e., 6 years on each count, pursuant to

section 667.6, subdivision (d). On appeal, the defendant contended the sentence was

erroneous. (People v. Plaza, supra, 41 Cal.App.4th at p. 382.) Plaza upheld the

sentences, concluding that there was sufficient evidence that, as to each crime, the

defendant had a “reasonable opportunity to reflect,” but nevertheless resumed sexually

assaultive behavior. (Id. at pp. 382-385.)

       In People v. Irvin (1996) 43 Cal.App.4th 1063, the defendant contended he was

erroneously sentenced pursuant to section 667.6, subdivision (d), on his multiple sexual

crimes. Irvin concluded that the trial court’s sentencing explanation was inadequate, and



                                             28
that it was not likely that each sexual crime was committed on a “separate occasion.” The

case was remanded for resentencing. (Id. at pp. 1067-1072.) After discussing three

cases,22 Irvin rejected any suggestion from those cases that “a finding of ‘separate

occasions’ requires a change of location or an obvious break in a perpetrator’s behavior, .

. .” (Id. at p. 1070.)

       Irvin then observed, “[s]ubdivision (d) provides otherwise. What the trial court

must decide is whether ‘the defendant had a reasonable opportunity to reflect upon his or

her actions and nevertheless resumed sexually assaultive behavior.’ A violent sexual

assault cannot and should not be considered in the same light as sexual acts shared

between willing participants. Consensual sex may include times when the participants go

back and forth between varied sex acts, which they consider to be one sexual encounter.”

(Id. at pp. 1070-1071.)

       Irvin continued, “[b]y contrast, 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. Such a sexual assault consisting of multiple types of sex acts committed

against the victim is not motivated by sexual pleasure. Instead, it is frequently intended to

degrade the victim. Sexual acts, such as those committed by defendant, are the antithesis

of a consensual sexual encounter and should not be viewed the same way. Therefore, at

sentencing a trial court could find a defendant had a ‘reasonable opportunity to reflect



22     The three cases were People v. Corona, supra; People v. Pena, supra; and People
v. Plaza, supra. We discuss Corona and Pena below.


                                             29
upon his or her actions’ even though the parties never changed physical locations and the

parties ‘merely’ changed positions.” (Id. at p. 1071.)

       In the present case, there was substantial evidence that each of Jones’s crimes were

committed as part of a degrading encounter lasting almost two hours in a filthy garage.

Moreover, Jones forced Carolyn F. to orally copulate him (count five) while he was

sitting in the back seat of the car. Afterwards, there was an interval. During that interval,

the entire bodies of Jones and Carolyn F. changed positions. Jones forced her onto her

back, and her legs “were up as far as they could go.” Jones changed his previous sitting

position. The changes of the body positions facilitated the commission of a subsequent

sex act. That subsequent sex act was the rape of Carolyn F. (count one). And that sex act

was different than the previous one, i.e., forcible oral copulation.

       Similarly, as to the forcible rape (count one) and forcible sodomy (count two),

there was substantial evidence that, after the rape, there was an interval. During that

interval, Jones pulled Carolyn F.’s legs up “as high as he could,” changing her body

position. The change facilitated the commission of a subsequent sex act. That

subsequent sex act was the sodomy. (Count two.) And that sex act was different from

the previous one, i.e., the rape.

       Accordingly, the offenses in counts five, one, and two were committed on

“separate occasions” for purposes of section 667.6, subdivision (d). (Cf. People v. Plaza,

supra, 41 Cal.App.4th at pp. 382-385; see People v. Irvin, supra, 43 Cal.App.4th at pp.

1070-1071; section 667.6, subd. (d).) Therefore, in light of our discussion in part 7.b.,

ante, we hold that the forcible oral copulation (count five), forcible rape (count one), and

                                             30
forcible sodomy (count two) of Carolyn F. were each committed on a different “single

occasion” for purposes of section 667.61, subdivision (g), and the court properly

sentenced Jones to prison for 25 years to life on counts five and two. (Cf. People v.

Thomas, supra, 4 Cal.4th at p. 210; In re Jerry R., supra, 29 Cal.App.4th at p. 1437;

People v. McGuire, supra, 14 Cal.App.4th at p. 694.)23

             (2) Jones’s Arguments Do Not Compel A Contrary Conclusion.

       Jones, relying on People v. Hammon (1987) 191 Cal.App.3d 1084, People v.

Corona, supra, and People v. Pena, supra, urges his sentence was erroneous. Jones’s

reliance on those cases is misplaced.24




23      Whether sexual crimes specified in section 667.6, subdivision (d), are committed
during an “indivisible” or “divisible” transaction for purposes of section 654 (see People
v. Perez (1979) 23 Cal.3d 545, 549-554) is not controlling, and may even be irrelevant, to
the issue of whether they were committed on “separate occasions” for purposes of section
667.6, subdivision (d).

24     On the other hand, the People’s reliance on People v. Brown (1994) 28
Cal.App.4th 591, is misplaced since the sentencing in that case was pursuant to section
667.6, subdivision (c), (id. at pp. 600-601, fn. 4), which does not contain the “separate
occasions” or “single occasion” language at issue in this case.


                                            31
                (a) People v. Hammon.

       In Hammon, in pertinent part, the defendant committed multiple identical sexual

acts, i.e., he caused an infant to orally copulate him twice (counts five and four). The acts

were distinguishable only by a change in the defendant’s position. He later orally

copulated the infant twice (counts nine and seven). (People v. Hammon, supra, 191

Cal.App.3d at pp. 1091, 1100-1101.) As a result, the defendant was convicted and

sentenced on four counts of violating section 288, subdivision (a). (Id. at p. 1088.)

       The defendant in Hammon contended his sentence on those counts violated section

654’s multiple punishment ban. (Id. at p. 1090.) Nonetheless, the appellate court in

Hammon used the “reasonable opportunity to reflect” language of section 667.6,

subdivision (d), as one of four factors to decide that the defendant therein suffered

impermissible multiple convictions. (Id. at pp. 1096-1099.) Hammon reversed the

convictions on counts four and seven, but affirmed the convictions on counts five and

nine. (Id. at pp. 1089, 1100-1101.) However, in People v. Harrison (1989) 48 Cal.3d

321, the Supreme Court rejected a defendant’s contention that he suffered impermissible

multiple convictions for multiple identical sexual acts.25 (People v. Harrison, supra, at

pp. 327-334.) In doing so, Harrison disapproved Hammon’s four-fold test, and


25     In Harrison, in pertinent part, the defendant committed three acts of vaginal
penetration with a foreign object, i.e., his fingers (§ 289), briefly interrupted by the
victim’s struggles and the defendant’s use of force on other parts of the victim’s body.
(People v. Harrison, supra, 48 Cal.3d at pp. 325-326.) The defendant was convicted and
sentenced on each count. (Id. at p. 326.)


                                             32
Hammon’s use of the “reasonable opportunity to reflect” language as one of that test’s

four factors. (Id. at pp. 332-334.)

       There are several reasons why Hammon is of no help to Jones. First, Hammon

involved the issue of impermissible multiple convictions based on multiple identical

sexual acts, and did not involve consecutive sentencing pursuant to section 667.6,

subdivision (d). Second, and more importantly, Harrison disapproved Hammon’s

analysis of Hammon’s multiple conviction issue. Harrison, therefore, eviscerates Jones’s

argument to the extent he relies on Hammon’s holding concerning its multiple conviction

issue to support his argument that the crimes at issue in the present case were not

committed on “separate occasions” for purposes of section 667.6, subdivision (d).

Finally, in Hammon, as to counts five and four, there was no intervening assault between

the sexual crimes, and the only thing that occurred during the interval between the sexual

crimes was a change in the position of all or part of only the defendant’s body. This

change simply facilitated the commission of a sexual act identical to the previous one.

That was equally true as to counts nine and seven in Hammon. It is not true as to counts

one, two, and five in the present case.

                (b) People v. Corona.

       In People v. Corona, supra, in pertinent part, the defendant drove the victim in a

car to a location, penetrated her vagina with his finger, “then” forcibly orally copulated

her, and “then” raped her. (People v. Corona, supra, 206 Cal.App.3d at p. 15.) The

defendant left the victim in the car for about five minutes, returned, and raped her. The

trial court consecutively sentenced the defendant on each sexual offense pursuant to

                                             33
section 667.6, subdivision (d). On appeal, the defendant contended the sentence was

erroneous; as to the sentences for the first two crimes, the Attorney General conceded the

issue. (Id. at pp. 16, 18.)

       Corona, accepting the Attorney General’s concession, concluded that the sentences

pursuant to section 667.6, subdivision (d), for the first two crimes were improper.

(People v. Corona, supra, 206 Cal.App.3d at p. 18.) Corona upheld the sentences for the

rapes. Corona did not discuss the issue of any changes in the positions of the defendant

and victim between the first, second, or third crimes, or the different nature of those

sexual crimes.

       We reject Jones’s reliance on Corona’s conclusion that the sentence of the

defendant in Corona was erroneous as to that defendant’s first two crimes. In Corona,

unlike the present case, the Attorney General conceded the sentencing error. Moreover,

Corona did not expressly discuss factors which we have concluded control the present

case, including changes in body positions; such changes which facilitated a transition

from one sexual crime to another; and whether the sexual couplings of the crimes

involved different part(s) of the bodies of the defendant and/or victim.

                 (c) People v. Pena.

       In Pena, supra, in pertinent part, the defendant raped his victim on a bed, got off

of her, twisted her by the legs violently, and orally copulated her. (People v. Pena, supra,

7 Cal.App.4th at p. 1299.) The trial court found the defendant committed the sexual

offenses on “separate occasions” and sentenced him thereon pursuant to section 667.6,

subdivision (d). On appeal, the defendant contended the sentence was erroneous; the

                                             34
People contended the defendant had a “reasonable opportunity to reflect” when he got off

of the victim and twisted her body violently. (Id. at p. 1314.) Pena concluded the

sentences pursuant to section 667.6, subdivision (d), were erroneous. (Id. at p. 1316.)

       With respect to whether section 667.6, subdivision (d), applied, Pena discussed

only two cases dealing with that section in its present form, Corona, and then Hammon.

(People v. Pena, supra, 7 Cal.App.4th at pp. 1314-1316.) Pena stated, “[w]hile there is

admittedly little authority upon which to decide this issue,” Corona and Hammon

“strongly suggest” that, for purposes of section 667.6, subdivision (d), the defendant in

Pena did not have a “reasonable opportunity to reflect” between the commission of his

sexual offenses. (Id. at p. 1316.)

       Pena first reasoned that its case was “strongly analogous” to Corona. (People v.

Pena, supra, 7 Cal.App.4th at p. 1316.) The Pena court stated, “[a]s was the case in

[Corona], nothing in the record before this court indicates any appreciable interval

‘between’ the rape and oral copulation. After the rape, appellant simply flipped the

victim over and orally copulated her. The assault here was also continuous. Appellant

simply did not cease his sexually assaultive behavior, and, therefore, could not have

‘resumed’ sexually assaultive behavior.” (Ibid.)

       Pena later turned to Hammon and reasoned that it was irrelevant that the defendant

in Pena had to change positions in order to orally copulate his victim. Pena stated, “[t]he

holding in Hammon strongly suggests a change in positions, alone, is insufficient to

provide a perpetrator with a reasonable opportunity to reflect upon his actions, especially

where the change is accomplished within a matter of seconds.” (People v. Pena, supra, 7

                                            35
Cal.App.4th at p. 1316.) We believe Pena’s reliance on Corona and Hammon is

unjustified. More importantly, its reasoning and holding concerning section 667.6,

subdivision (d), are simply wrong.

       As noted, in Corona, the Attorney General conceded sentencing error. In Pena,

the Attorney General did not, and instead urged that the defendant had a “reasonable

opportunity to reflect.” (People v. Pena, supra, 7 Cal.App.4th at p. 1314.) Moreover,

Corona failed to expressly discuss factors concerning changes in body positions; criminal

intervening activity facilitating a defendant’s transition from one sexual crime to another;

and whether the sexual couplings of the crimes involved different parts of the bodies of

the assailant and/or victim. We believe those factors should have caused the court in

Pena to hold that the sexual crimes involved were committed on “separate occasions”

within the meaning of section 667.6, subdivision (d).

       Pena’s reliance on Hammon was inapposite because that case did not involve the

issue raised in Pena, that is, the propriety of the imposition of consecutive sentences

pursuant to section 667.6, subdivision (d). But more crucially, even though Pena relied

on Hammon’s analysis of Hammon’s multiple conviction issue, Pena failed to cite People

v. Harrison, supra, which expressly disapproved Hammon to the extent it was

inconsistent with Harrison, and which rejected as erroneous the very analysis in Hammon

upon which Pena relied.

       Finally, Pena, in concluding section 667.6, subdivision (d), did not apply, observed

that “[t]he assault here was also continuous. Appellant simply did not cease his sexually



                                             36
assaultive behavior, . . .” In our view, Pena mischaracterized the sexually assaultive

behavior involved in that case.

       The phrase “nevertheless resumed sexually assaultive behavior” in section 667.6,

subdivision (d), implies a previous cessation of sexually assaultive behavior. (Italics

added.) That is, the phrase anticipates multiple sexually assaultive behaviors; in other

words, it refers to sexually assaultive behavior that ceases, and sexually assaultive

behavior that later resumes. The quoted language is part of a statutory test for

determining whether, “between the commission of one sex crime and another,” i.e.,

between multiple sexual crimes, the defendant had a reasonable opportunity to reflect.

Simply put, we view the phrase “sexually assaultive behavior” as referring to a sexual

crime specified in section 667.6, subdivision (d), and the “reasonable opportunity to

reflect” language as providing a test for determining whether multiple sexual crimes, that

is, multiple sexually assaultive behaviors, were committed against a single victim on

separate occasions.

       Thus, when the crime of rape was completed in Pena, that sexually assaultive

behavior ceased, and the sexually assaultive behavior of forcible oral copulation later

began. Pena’s analysis rewards greater criminality. If sexual crimes which otherwise

qualified for consecutive sentencing pursuant to section 667.6, subdivision (d), had an

interval of inactivity between them, Pena would compel the conclusion that they would

not have qualified for consecutive sentencing if, instead, the defendant had filled the

interval with the commission of one or more other criminal assaults or brutal sexual



                                             37
crimes. We must construe our penal statutes to avoid such absurd results. (People v.

Thomas, supra, 4 Cal.4th at p. 210.)

         d. Imposition Of Consecutive Sentences On Counts One, Two, And Five Was
Mandatory Under Section 667.6, Subdivision (d).

       In the present case, indeterminate life sentences were imposed pursuant to the One

Strike Law as to counts one, two, and five. We already have relied on section 667.6,

subdivision (d), to conclude that counts one, two, and five were committed on “separate

occasions” for purposes of that section and, therefore, that each count was committed on

a different “single occasion” for purposes of section 667.61. We thus must conclude that

the mandatory consecutive sentencing provisions of section 667.6, subdivision (d), are

properly applied to those counts. (Cf. People v. Jackson, supra, 66 Cal.App.4th at pp.

190-194 [mandatory consecutive sentencing scheme of section 667.6, subd. (d), applies to

sentences imposed pursuant to the One Strikes Law where crimes involved multiple

victims].)

       8. Jones’s Sentence Was Neither Cruel Nor Unusual Punishment.

       Jones contends his sentence constitutes cruel and unusual punishment under the

federal and state Constitutions. We reject the contention.

       The preconviction probation report reflects that Jones, who was born in September

1961, suffered a 1980 conviction for possessing a public building key, and a 1985

conviction for carrying a loaded firearm in a public place. According to the report, Jones

denied to a detective that Jones raped Carolyn F., and claimed he had consensual sex with

her on previous occasions. Jones told the detective that


                                            38
Carolyn F. claimed she was raped because she had sex with Jones and went home to her

husband “‘all ripped up.’”

       The report reflects Carolyn F. told police that, after the oral copulation, Jones had

sexual intercourse with her for 15 minutes, and sodomized her for an hour. Jones

subsequently put the knife to Carolyn F.’s face, and later jabbed it at her. After a struggle

ensued, Jones placed the knife at her back before leaving.

       The report states, “[b]y his own admission, the defendant confirmed that after

having sex with the victim, she was ‘all ripped up.’ The evidence of a nonconsensual

sexual episode appears overwhelming, and the probation officer is convinced of the

victim’s certainty that the defendant committed the offense. This matter is particularly

distasteful, given the [victim’s] inability to speak. The violence, threat of harm involving

a knife, and callousness makes the defendant particularly unsuitable for consideration for

community based supervision, and should he be convicted, removal from the community

with significant time in custody on the state level is warranted.”

       At sentencing, Jones urged that since the minimum mandatory sentence was

imprisonment for 75 years to life, it would be fair to dismiss a Three Strikes law prior

conviction allegation.26 Jones’s counsel stated, “defense would argue that [Jones] should

receive the mandatory minimum. That really would be I believe 75 to life.” Jones later

suggested that the court sentence Jones to prison for 25 years to life, that the court


26     Because the jury had been unable to reach a verdict on this Three Strikes prior
conviction allegation, the allegation was still outstanding at time of sentencing. The
allegation was later dismissed.


                                              39
sentence Jones on count two pursuant to section 1170.1, and that the court not impose

sentence on the section 12022.3, subdivision (a), allegations. Jones personally told the

court that he was innocent and the charges against him were fabricated.

       The court indicated it had read the probation report and the People’s sentencing

memorandum. The court acknowledged receipt of letters submitted by Jones. The court,

which presided at trial, reviewed the facts of the case and observed that the offenses

occurred over about a two-hour period. For purposes of the section 12022.3, subdivision

(a), enhancements, the court identified as aggravating factors that Jones’s use of the knife

was extremely violent, Jones served a prior prison term for robbery and had been returned

for parole violations, and Jones kidnapped Carolyn F. with movement that substantially

increased the risk to her. Based on these factors, the court imposed a 10-year upper term

for each of the three section 12022.3, subdivision (a), enhancements pertaining to counts

one, two, and five. The court sentenced Jones on the substantive offenses as indicated in

part 7 of this opinion. Jones did not object to the sentence on the ground that it was cruel

or unusual in violation of the federal and state Constitutions.

       Based on the above, we conclude Jones’s sentence did not constitute cruel or

unusual punishment under the federal and state Constitutions. (People v. Estrada (1997)

57 Cal.App.4th 1270, 1277-1282; People v. Crooks (1997) 55 Cal.App.4th 797, 803-809;

People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631; People v. Cartwright (1995)




                                             40
39 Cal.App.4th 1123, 1134-1137; People v. Loustaunau (1986) 181 Cal.App.3d 163,

177.)27

                                    DISPOSITION

      The judgment is affirmed.

      CERTIFIED FOR PARTIAL PUBLICATION



                                                          CROSKEY, Acting P. J.

We concur:


             KITCHING, J.


             ALDRICH, J.




27      Because we have addressed the merits of Jones’s contention that his sentence
constituted cruel and unusual punishment, there is no need to decide whether he waived
the issue by his failure below to object to his sentence on that ground. (See People v.
Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. DeJesus, supra, 38 Cal.App.4th at p.
27.)

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