People v. Gonzalez CA2/2

Filed 8/23/24 P. v. Gonzalez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B330462

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA095505) v.

ROBERTO MERCADO GONZALEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin Larry Herscovitz, Judge. Affirmed. Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Roberto Mercado Gonzalez appeals the judgment entered following a jury trial in which he was convicted of rape of a person who was unconscious or asleep (Pen. Code,1 § 261, subd. (a)(4)(A); count 1) and forcible rape (§ 261, subd. (a)(2); count 2). The trial court sentenced appellant to the low term of three years on both counts, to be served concurrently. Appellant contends that the trial court erred in imposing concurrent sentences on counts 1 and 2 rather than staying the sentence on count 2 under section 654. We disagree and affirm. FACTUAL BACKGROUND In September 2021, 19-year-old Diana lived with her mother, stepfather, and six siblings. Her stepfather’s parents, three brothers, and two sisters lived in another house on the same property. Appellant is one of Diana’s step-uncles (her stepfather’s brother). Diana did not like appellant, she had no relationship with him, and they did not interact with each other. On September 11, 2021, Diana went to a party with one of appellant’s sisters (Veronica), one of his brothers, the brother’s girlfriend (Miranda), and appellant. Before the party Diana smoked marijuana, and at the party she drank alcohol. She left the party around 1:00 a.m., and returned home feeling “drunk and a little high.” She and Veronica went to Veronica’s room where Diana fell asleep, still wearing the underwear and dress she had worn to the party. Diana awoke around 7:00 a.m. with a pillow pressed to her face. The pillow was being held “forcefully on [her] face,” and she was unable to move it. There was a heavy weight on the pillow, and she felt like she was suffocating. Diana did not know what