People v. Gonzalez CA2/6

Filed 4/15/14 P. v. Gonzalez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B249907 (Super. Ct. No. 1366556) Plaintiff and Respondent, (Santa Barbara County)

v.

PASCUAL LEYVA GONZALEZ,

Defendant and Appellant.

Pascual Leyva Gonzalez was charged with four counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)),1 three counts of rape (§ 261, subd. (a)(2)), two counts of forcible sodomy (§ 286, subd. (c)(2)), three counts of inflicting injury on a cohabitant (§ 273.5, subd. (a)), two counts of making criminal threats (§ 422), child abuse (§ 273a, subd. (a)), false imprisonment (§ 236) and kidnapping (§ 209, subd. (b)(1)). The indictment included use of a deadly weapon (§ 12022, subd. (b)(1)), kidnapping (§ 667.8) and one "strike" (§ 667.61) allegations.

1 All statutory references are to the Penal Code.

Gonzalez brought two unsuccessful Marsden2 motions, an unsuccessful Miranda3 motion and a partially successful Pitchess4 motion. Shortly before trial, Gonzalez rejected a plea offer of a 14-year prison term with dismissal of the sex-related crimes. After two days of jury selection, Gonzalez waived his trial rights, and pled no contest to three sex offenses occurring on November 17, 2010: two counts of forcible oral copulation (§ 288a, subd. (c)(2)) and one count of rape (§ 261, subd. (a)(2)). The remaining charges were dismissed. The plea agreement allowed the trial court to impose a sentence of up to 24 years on the three counts. Gonzalez was told: "It's entirely up to [the trial judge] to decide what your sentence would be. The minimum sentence you could receive would be three years. The maximum sentence you would receive would be 24 years, and it will be the Court who decides your sentence at your sentencing hearing." Gonzalez said he understood. He also acknowledged his sentence was subject to the discretionary full- term consecutive sentencing under section 667.6, subdivision (c).5 The trial court sentenced Gonzalez to 18 years in state prison. It designated one count of forcible oral copulation as the principal term, imposed the eight-year, upper- term sentence on that count, and added a two-year consecutive sentence on the rape count under section 1170.1, plus a mandatory eight-year, full-term consecutive sentence on the second oral copulation count under section 667.6, subdivision (d).6 Recognizing the latter consecutive sentence may violate the plea agreement, it stated: "If I am in error . . . I would still impose a full-term discretionary consecutive sentence under 667.6(c)