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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO MERCADO GONZALEZ,

Defendant and Appellant.

B330462

(Los Angeles County

Super. Ct. No. LA095505)

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.

_________________________________
2

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 

1 Undesignated statutory references are to the Penal Code.
3

was happening until she felt someone touching her inner thighs

and holding her legs open with his knees. She felt the man’s 

penis inside her vagina, and realized she was being raped. It felt 

dry and forced and painful. When Diana tried to remove the 

pillow from her face, the assailant grabbed her hands by the 

wrist. Diana began to panic. Using all of her strength, Diana 

managed to push the pillow away and saw appellant on top of 

her. He was wearing a white shirt and was naked from the waist 

down. Diana then kicked appellant off of her, picked up her 

underwear from the floor, and left the room.

Outside the room Diana ran into Veronica and told her that 

appellant had raped her. Veronica and Miranda drove Diana to 

the hospital where she spoke to the police. She told them 

appellant had raped her and that he had penetrated her twice.2

A few hours after the police interview, Diana was 

interviewed and underwent a sexual assault examination by a 

registered nurse/forensic nurse examiner. Diana told the nurse 

that appellant had penetrated her twice. Appellant’s DNA was 

found on Diana’s right and left thighs, her super pubic region, 

and perianal region, and his spermatozoa was found on the dress 

Diana was wearing when he raped her.

2 Portions of the police body camera video of this interview 

were played for the jury. At trial, Diana recalled telling the 

police appellant had penetrated her twice, but testified that she 

could not remember two penetrations and remembered that 

appellant’s penis was fully inserted and then withdrawn from her 

vagina.
4

DISCUSSION

The Trial Court Did Not Err in Imposing Concurrent 

Sentences on Counts 1 and 2 Rather Than Staying the 

Sentence on Count 2 Under Section 654

A. Relevant proceedings

In his sentencing memorandum, appellant asserted the 

punishment on count 1 or 2 must be stayed under section 654, 

making his maximum exposure six years in state prison. At the 

sentencing hearing, the trial court disagreed, stating that 

appellant’s maximum possible sentence was 12 years, because he 

could be sentenced to consecutive six-year terms on counts 1 and 

2. Citing People v. Harrison (1989) 48 Cal.3d 321 (Harrison), the 

trial court explained that section 654 does not apply where 

multiple sex offenses are committed against a single victim in 

quick succession, as was the case here.

Appellant argued that People v. White (2017) 2 Cal.5th 349

(White) was more relevant because it presented “virtually the 

identical [factual] situation” as the instant case. In that case, our

Supreme Court held that defendant could be convicted of rape of 

an intoxicated person (§ 261, subd. (a)(3)) and rape of an 

unconscious person (§ 261, subd. (a)(4)(A)) based on the same act, 

but could not be punished for both offenses. (Id. at pp. 351–352.) 

The trial court distinguished White on the ground that the 

defendant in that case was convicted of two distinct rape charges 

based on the same act, whereas here, “[appellant] raped [the 

victim] while she was unconscious, and then the penis was 

withdrawn, [and] reinserted by force. So there were at least two 

acts of rape in our case.”

Appellant responded that a separate count was not alleged 

for each act and the testimony showed only one act of 
5

penetration. The court disagreed, stating that the testimony 

concerning the victim’s prior statements established “there were 

at least two insertions.” Appellant replied, “[B]ut there was not a 

separate act of penetration alleged. There [were] two counts of 

rape of unconscious, and rape by force or fear. There was not a 

separate act alleged [in the information]. It was not amended to 

add a separate count of penetration. There was only one count of 

penetration.” Again, the trial court disagreed: “No, read the 

information. The information said two counts. The jury 

instructions said two count[s]. The court instructed that each 

count is a separate crime. The testimony was that there were at 

least two insertions. So they found him guilty based upon at 

least two insertions, and under Harrison, those are two crimes for 

which 654 does not apply.”

B. Applicable law

Section 654 provides: “An act or omission that is 

punishable in different ways by different provisions of law may 

be punished under either of such provisions, but in no case shall 

the act or omission be punished under more than one provision.” 

(§ 654, subd. (a).) The purpose of section 654 is to ensure that the 

punishment for a defendant’s criminal behavior is commensurate 

with his culpability. (Harrison, supra, 48 Cal.3d at p. 335; People 

v. Patton (2024) 101 Cal.App.5th 922, 930.) Our Supreme Court 

has explained that “[w]hether a defendant may be subjected to 

multiple punishment under section 654 requires a two-step 

inquiry, because the statutory reference to an ‘act or omission’

may include not only a discrete physical act but also a course of 

conduct encompassing several acts pursued with a single 

objective. [Citations.] We first consider if the different crimes 

were completed by a ‘single physical act.’ [Citation.] If so, the 
6

defendant may not be punished more than once for that act.

Only if we conclude that the case involves more than a single 

act—i.e., a course of conduct—do we then consider whether that 

course of conduct reflects a single ‘ “intent and objective” ’ or 

multiple intents and objectives.” (People v. Corpening (2016) 2 

Cal.5th 307, 311 (Corpening).)

“Whether a defendant will be found to have committed a 

single physical act for purposes of section 654 depends on 

whether some action the defendant is charged with having taken 

separately completes the actus reus for each of the relevant 

criminal offenses.” (Corpening, supra, 2 Cal.5th at p. 313.) And 

where a case involves a course of conduct, “if all of the offenses 

were merely incidental to, or were the means of accomplishing or 

facilitating one objective, [a] defendant may be found to have 

harbored a single intent and therefore may be punished only 

once.” (Harrison, supra, 48 Cal.3d at p. 335.) But if the 

defendant “harbored ‘multiple criminal objectives,’ which were 

independent of and not merely incidental to each other, he may 

be punished for each statutory violation committed in pursuit of 

each objective, ‘even though the violations shared common acts or 

were parts of an otherwise indivisible course of conduct.’ ” (Ibid.)

Even when the defendant has a single overall objective, 

however, a finding of multiple independent objectives may be 

supported by a showing that the defendant engaged in 

consecutive acts which reflect a decision to continue the course of 

criminal conduct notwithstanding an opportunity to reflect and 

stop the behavior. (Harrison, supra, 48 Cal.3d at p. 338 

[defendant properly punished for multiple digital penetrations

where, “instead of taking advantage of an opportunity to walk 

away from the victim, he voluntarily resumed his sexually 
7

assaultive behavior”]; People v. Brown (1994) 28 Cal.App.4th 591,

601 (Brown) [defendant punished for multiple reinsertions of 

penis under circumstances showing that “[e]ach time [the victim] 

struggled and defendant’s penis came out, he could have chosen 

to stop his attack”]; see also People v. Latimer (1993) 5 Cal.4th 

1203, 1211–1212.)

In the context of sex crimes, the courts have recognized 

that although a defendant may have the single overall objective 

of sexual gratification, section 654 generally does not bar 

multiple punishment for multiple statutory violations if the 

circumstances show “separate base criminal acts” upon the 

victim. (Harrison, supra, 48 Cal.3d at pp. 325 [“section 654 does

not bar multiple punishment simply because numerous sex 

offenses are rapidly committed against a victim with the ‘sole’

aim of achieving sexual gratification], 337–338 [“it is defendant’s 

intent to commit a number of separate base criminal acts upon 

his victim, and not the precise code section under which he is 

thereafter convicted, which renders section 654 inapplicable”]; 

Brown, supra, 28 Cal.App.4th at p. 601.) Indeed, where multiple 

sex acts committed on a single occasion result in multiple 

statutory violations the “offenses are generally ‘divisible’ from 

one another under section 654, and separate punishment is 

usually allowed.” (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6; 

see also People v. Hicks (1993) 6 Cal.4th 784, 788, fn. 4 [“We 

previously have held that this statute does not prohibit the 

imposition of multiple punishment for separate sexual offenses 

committed during a continuous attack, ‘even where closely 

connected in time’ ”]; Harrison, supra, 48 Cal.3d at pp. 335–338;

see People v. Perez (1979) 23 Cal.3d 545, 552–554 [intent and 
8

objective to achieve sexual gratification “is much too broad and 

amorphous to determine the applicability of section 654”].)

The determination of “[w]hether section 654 applies in a 

given case is a question of fact for the trial court, which is vested 

with broad latitude in making its determination.” (People v. 

Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Carter (2019) 

34 Cal.App.5th 831, 844 (Carter).) “We review any factual 

findings underlying the trial court’s ruling for substantial 

evidence” (People v. Washington (2021) 61 Cal.App.5th 776, 795), 

considering “the trial court’s determination in the light most 

favorable to the [People] and presum[ing] the existence of every 

fact the trial court could reasonably deduce from the evidence”

(Jones, supra, at p. 1143). If supported by substantial evidence, 

we must uphold the trial court’s determination that two crimes 

were separate and not subject to section 654. (People v. Brents

(2012) 53 Cal.4th 599, 618.)

C. The trial court properly imposed separate sentences 

on counts 1 and 2 rather than staying the sentence on 

count 2 under section 654

The trial court imposed concurrent sentences on counts 1 

and 2, concluding that section 654 did not apply because there 

were two separate acts of penetration. Appellant concedes that 

substantial evidence would support a finding that two 

penetrations occurred, but argues that the trial court actually

made no such finding. Rather, appellant asserts that the trial 

court mistakenly believed⎯based on the information, 

prosecution’s argument, and the jury instructions⎯that the jury

had necessarily made the factual finding that two penetrations 

had occurred. According to appellant, the information contained 

no allegation of separate acts of penetration, and the jury was not 
9

required to determine whether there were separate acts of 

penetration. Appellant thus concludes that in the absence of any 

such factual finding by the jury, the trial court erred by failing to 

make its own finding, and its determination that section 654 did 

not apply to this case is unsupported by any factual finding. We 

disagree.

We reject appellant’s contention that the trial court did not 

make an independent factual finding that there were two 

penetrations, but instead relied on its mistaken belief that the 

jury necessarily found two penetrations to conclude that section 

654 did not apply. In distinguishing the White case, the court 

plainly stated its view that two separate acts of penetration were 

established by the evidence. On the basis of this express finding, 

the trial court ruled that section 654 did not prohibit concurrent 

sentencing on counts 1 and 2. Although the jury was not 

required to make an affirmative factual finding concerning the 

number of penetrations, there was no language in the charging 

document or verdict forms to preclude it from doing so. And the 

trial court’s view that the jury had found appellant guilty based 

on an implied finding that there were “at least two insertions” did

not prevent the court from making the same express finding

based on the evidence in the exercise of its sentencing discretion. 

(See Carter, supra, 34 Cal.App.5th at pp. 842–844 [trial court 

may rely on any of the facts in evidence at trial to make its 

decision under § 654 as long as it does not make factual findings 

that conflict with express findings by the jury].)

In short, nothing in the record supports appellant’s 

contention that the trial court failed to make its own 

determination under section 654 based on the evidence presented 

at trial.
10

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.