People v. Baylor

[234]

Opinion

DABNEY, J.

Ronnie Earl Baylor was charged in an information in counts I and V with residential burglary (Pen. Code, § 459); in count II with theft of a firearm (Pen. Code, § 487); in count III with forcible rape (Pen. Code, § 261, subd. (2)); in count IV with forcible sodomy (Pen. Code, § 286, subd. (c)); in count VI with assault with intent to commit rape (Pen. Code, § 220); and in count VII with robbery (Pen. Code, § 211). The information specially alleged as to counts III and IV that Baylor personally used a firearm (Pen. Code, § 12022.3, subd. (a)). The jury found Baylor guilty on all counts and found the enhancing allegations to be true. The jury fixed the convictions for both burglary counts and the robbery count at first degree.

The court sentenced Baylor to the upper term of eight years plus a three-year enhancement for firearm use for count III and a consecutive sentence of one-third the middle term, or two years, plus a three-year enhancement for firearm use for count IV. The court imposed a middle term for each of the other counts, but then stayed all of the terms except those for counts III and IV. On appeal, Baylor claims that the court relied on improper and inapplicable factors to impose the upper term for rape and to impose consecutive sentences.

Facts

Because Baylor claims sentencing error only, a detailed exposition of the facts is unnecessary. Baylor entered Brenda S.’s house in the middle of the night and raped and sodomized her while holding a gun to her head. Brenda S.’s gun was missing after Baylor left. This incident formed the basis for counts I through IV.

A month later, Baylor forced his way into Cheryl W.’s hotel room, forced her to the floor, pulled down her pants, and ejaculated while rubbing his penis against her buttocks. Cheryl’s wallet was missing after Baylor left. This incident formed the basis for counts V through VII.

The Sentencing Hearing.

At the sentencing hearing, the court stated: “[The prosecutor] argues that—and I think properly so—that you should be given the aggravated term of full and consecutive under 667.6 of the Penal Code, should be given a sentence of 24 years, 8 months. And that’s probably what the Court should do. ftf] On the other hand, the Court has to balance, . . . the fact that you have no record, no prior record, you had good conduct while in the military. And the Court has to take that into consideration.”