Filed 6/ 8 / 15 P. v. Luster CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.

ANDREW ST UART LUSTER,
Defendant and Appellant. 2d Crim. No. B248247 (Super. Ct. No. CR49259) (Ventura County)

A jury convicted Andrew Stuart Luster of multiple sex offenses committed against
three women whom he had drugged . Appellant videotaped his sex ac ts with two of the

women

. During the trial, appellant fled the jurisdiction. In February 2003 he was sentenced in absentia to prison for 124 years

. In June 2003 we dismissed his appeal without opinion because he was a fugitive from justic e. In an unpub lished opinion filed
after appellant had been captured in Mexico , we denied his petition for rehearing and
refused to reinstate his appeal . ( People v. Luster (July 2, 2003) 2d Crim. No. B166741.) We take judicial no tice of our unpublished opinion, which is attached as Appendix A.
In a 2013 habeas corpus proceeding, the superior court vacated appellant's 124

- year prison sentence because the trial court had "failed to state specific reasons for imposing full consecutive sentences." The superior court resen tenced him to prison for 50 years. Appellant appeals from the judgment entered upon resentencing

.2

We reject appellant's contention that the instant appeal encompasses not only
issues relating to the resentencing, but also issues relating to the guilt ph ase of the trial
that could have been raised in the original appeal had it not been dismissed. We limit our review to the resentencing issues. 1 We affirm.

Review Is Limited to Resentencing Issues In an attempt to circumvent the effect of the dismissal o f his original appeal
, appellant argues that in the instant appeal he is entitled to obtain review of issues relating to the guilt phase of the trial. The argument is without merit. In the habeas corpus proceeding, his original sentence was vacated and h e was resentenced

. In all other respects, the convictions r emain the same

. This is similar to an appellate court's remand
of a case to the trial court for the limited purpose of resentencing. In a subsequent appeal after resentencing, the appellate cour t may consider only i ssues rel ating to the resentencing . ( People v. Deere (1991) 53 Cal

. 3d 705 , 713 .) The same principle applies here. Otherwise, appellant's original dismissed appeal would in effect be reinstated, and

our 2003 unpublished opinion refus ing to reinstate it would be a nullity. " [P]rinciples
of res judicata and law of the case warrant us not reconsidering our prior decision. [Citations.]" ( Hutton v. Hafif (2007) 150 Cal.App.4th 527, 550 .) We are, of course,
aware that we need not adher e to the "law of the case" doctrine if to do so would result in an "unjust decision." (See People v. Shuey (1975) 13 Cal.3d 835, 845

- 846.) There is nothing unjust about our adherence to our former opinion

. Accordingly, we will not consider appellant's se cond and third arguments as well as his ninth through twelfth arguments, which concern the guilt phase of the trial and could have been raised in the original appeal had it not been dismissed

.

1 B ecause the facts und erlying appellant's convictions are not relevant to the resentencing issues, we omit the customary statement of facts

.3 Constitutionality of Imposition of Full Consecutive
Terms Pur

suant to Penal Code Section 667.6 When the superior court resentenced appellant, it imposed full consecutive terms
on 11 counts of rape by intoxication

. (Pen. Code, § 261, subd. (a)(3)

. ) 2 The 11 counts

are counts 1, 2, and 3 committed on July 15, 2000
, against C. Doe; counts 10 and 24 committed on December 2, 1997
, against S. Doe; and counts 39, 49, 71, 75, 77 and 79 committed on October 17, 1996
, against T. Doe

. The consecutive terms were imposed pursuant to the mandatory language of section 667.6, sub division (d), which provides: "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the sa me victim on separate occasions

. " (Italics added.) Rape by intoxication is a subdivision (e)(1) offense

. The superior court noted that, if the imposition of full consecutive terms had not
been mandatory under section 667.6, subdivision (d), it would have exercised its discretion to impose them pursuant to section 667.6, subdivision (c), which provides: "[A] full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion

. A term may be imposed co nsecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). " (Italics added.)
Without subdivisions (c) and (d) of section 667.6
, each consecutive term would
have be en one

- third of the middle te rm instead of a full term. ( § 1170

. 1, subd. (a); People v. Rodriguez (2012) 207 Cal.App.4th 204, 211 .) Appellant contends that "the use
of section 667.6 here violated [his] Sixth Amendment right to a jury trial." Appellant argues that t he jury , not the judge, must make "the 'separate occasion [s] ' finding needed for the imposition of full consecutive sentences under section 667.6 (d) (or section 667.6 (c)'s requirement of 'same v ictim on [the] same occasion')."
A similar argument as to the "separate occa sions" finding of section 667.6, subdivision (d) was rejected in People v. King (2010) 183 Cal.App.4th 1281, 1324 : " King

2 All statutory references are to the Penal Code.4

contends that, because no jury made factual findings as to whethe r the four offenses took place 'on separate occasions,'

. . . mandator y consecutive sentences are prohibited, as a violation of his right to jury trial. However, the United States and California Supreme Courts have held that the decision whether to run individual sentences consecutively or concurrently does not implicate th e Sixth Amendment right to jury trial. ( Oregon v.
Ice (2009) 555 U.S. 160, [168] [ 172 L.Ed.2d 517, 522
, 129 S.Ct. 711, 714

- 715 ]; People
v. Black (2007) 41 Cal.4th 799, 820

- 823 . . . .) " In Oregon v. Ice , supra , 555 U.S. at p.
168 , the United States Supre me Court noted : " The decision to impose sentences consecutively is not within the jury function that ' extends down centuries into the
common law.' [Citation.]" Our California Supreme Court recently observed that "the Ice
court determined" that the Sixth Amend m ent right to a jury trial does not apply "to sentencing decisions in which juries played no fact finding role at common law." ( People v. Mosley (2015 ) 60 Cal.4th 1044 .) Appellant asserts that the "decision in Oregon v. Ice cannot be reconciled with the recent holding " in Alleyne v. United States (2013) __ U.S. __ [ 133 S.Ct. 2151 , 186 L.Ed.2d 314]. There, the high c ourt held " that facts that increase mandatory minimum sentences must be submitted to the jury ." ( Id
., 133 S.Ct. at p. 2163.) Appellant
maintains that, pursuant to section 667.6, subdivision (d), the trial court's "separate occasions" finding increased the mandatory minimum consecutive sentence from one

third the middle term to a full consecutive term. Therefore, the "separate occasions" finding must be made by the jury , not the judge

. The Alleyne holding does not affect appellant's consecutive sentencing

. The
defendant in Alleyne was convicted of using or carrying a firearm in relation to a crime of violence. The minimum term of imp ris onment was five years if the firearm had not been brandished and seven years if it had been brandished. The jury made no finding on
whether the defendant had brandished the firearm

. The trial court found that he had
brandished it and sentenced him to pri son for seven years to life

. The high court
concluded " t hat the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to5

the jury. " (

Alleyne v. United States
, supra , 133 S.Ct. at p. 2161.) Here, in contrast, the fact triggering mandatory full consecutive terms

- that appellant's crimes "involve the same victim on separate occasions" ( § 667.6, subd. (d))

- is not "an element of a distinct and aggravated crime" that must " be submitted to the jury and found beyond a reasonable
doubt. " ( Id ., at p. 2163.) Instead , it is a fact relating to the imposition of consecutive

sentences " in which the jury traditionally played no part ." ( Oregon v. Ice , supra , 555
U.S. a t p. 163.) 1994 Amendments of Section 261, Subdivision (a)(3)

Do Not Preclude Sentencing u nder Section 667.6 Subdivision (a)(3) of section 261 defines the offense of rape by intoxication. Appellant makes a convoluted argument that
, as a result of 1994 ame ndments of this subdivision, section 667.6 does not apply to rape by intoxication. This is a matter of statutory construction

.

" The objective of statutory construction is to determine the intent of the enacting body so that the law may receive the inte rpretation that best effectuates that intent

. [Citation.] ' We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their o rdinary and usual meaning and should be constr ued in their statutory context.' [Citation.] If the plain, commonsense meaning of a statute's words is unambiguous, the plain meaning controls. [Citation.]" ( Fitch v. Select Products
Co. (2005) 36 Cal.4th 8 12, 818 .)
S ection 667.6 unambiguously designates rape by intoxication as one of the offenses to which it applies. Subdivision (e)(1) of section 667.6 provides: "(e) This section shall apply to the following offenses: [¶] (1) Rape in violation of paragra ph (2), (3) [rape by intoxication], (6), or (7) of su bdivision (a) of Section 261." Thus, t he plain meaning of the statute

- that section 667.6 applies to rape by intoxication

- controls.6 We Need Not Consider Whether the Rape by Intoxication Offenses Wer e Committed on Separate Occasions Appellant contends that the trial court erred in finding that the rape

- by

intoxication offenses were committed on "separate occasions" within the meaning of section 667.6, subdivision (d). We need not consider this issu e . As an alternative basis for imposing full consecutive terms, the trial court determined that they were warranted under the discretionary provision of section 667.6, subdivision (c)
, which applies where
"the crimes involve the same victim on the same oc casion." ( Ibid .) The trial court stated: "I want to make a finding at this time that the Court would impose the same sentence under Penal Code Section 667.6(c), the discretionary section, and the Court feels that there is good reason to do so even if the se are not found to be separate occasions, even if they're found to be the sam e victim on the same occasion. [¶]

. . . [¶] So if a higher court finds that these were not separate occasions each time he got up to adjust the camera, or adjust the lighting, or leaves the room, and it is the same victim on the same occasion, the Court would still impose the same sentence I have just imposed under the discretionary
statute Penal Code section 667.6(c) . . . ." The court spent about five minutes "articulat[ing] " its reasons for imposing full consecutive terms pursuant to section 667.6, subdivision (c). Appellant argues that section 667.6, subdivision (c) is inapplicable because " his
crimes do not involve 'the same victim on the same occasion' " but instead invo lve multiple victims. "In a multiple victim case (as here)," appellant alleges, "the trial court is confined to use the procedure for consecutive sentences set out in sections 1170.1 or
667 [.6, subdivision] (d) ." We disagree. I nsofar as section 667.6, s ubdivision (e)
offense s , such as rape by intoxication, are committed against separate victims
, a

consecu tive sentence for each subdivision (e) offense is mandatory pursuant to section
667 .6 , subdivision (d) . The latter subdivision requires imposition of " [a] full, separate,
and consecutive term

. . . if the crimes involve separate victims

. . . . " ( Ibid .) Insofar as subdivision (e) offenses are committed against the "same victim on the same occasion " within the meaning of section 667.6, subdivision (c), consecutive sentences are7

discretionary. Nothing in the language of section 667.6 suggests that, as appellant claims, subdivisions (c) and (d) are mutually exclusive rather than complementary. People v. Goodliffe (2009) 177 Cal.App.4th 723, does not suppo rt appellant's position. There, the defendant pleaded no contest to four sexual offenses committed against four children . Only one of the offenses, count 9, was a section 667.6, subdivision (e) offense

. The defendant's sentence included a discretionary full consecutive term on count 9 pursuant to section 667.6, subdivision (c). The appellate court concluded that the
full consecutive term was unauthorized because the defendant's " crimes did not ' involve
the same victim on the same occasion' as required b y section 667.6, subdivision (c) ." ( Id ., at p. 727.) Nothing in the Goodliffe opinion suggests that subdivisions (c) and (d) are mutually exclusive.

Multiple Convictions for the Same Act of Rape For each act of rape, appellant was convicted of rape by intoxication in violation of subdivision (a)(3) of section 261 and rape of an unconscious person in violation of subdivision (a)(4) of section 261. In his opening brief, appellant argues that section 261 does not permit multiple convictions under these s ubdivisions for the same act of rape. In his reply brief, appellant concedes that multiple convictions are permissible pursuant to People v. Gonzales (2014) 60 Cal.4th 533, 539, which was decided after the filing of respondent's brief. Disposition

The j udgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.

We concur:
GILBERT, P.J.

PERREN, J.8

Filed 7/2/03 NOT FOR PUBLICATION

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,
Plaintiff and Resp ondent,

v.
ANDREW STUART LUSTER,
Defendant and Appellant. 2d Crim. No. B166741 (Super. Ct. No. CR49259) (Ventura County) OPINION ON DENIAL OF REHEARING AND ORDER

By order filed June 10, 2003, this Court dismissed the appeal of Andrew Stuart
Lu ster, without opinion, because he was a fugitive from justice. He had been sentenced in absentia on February 18, 2003. We dismissed the appeal on noticed motion after considering the opposition papers. (Cal. Rules of Court, Rule 4l, subs. (a) (b).) He now asks this court to grant rehearing and reinstate his appeal because he was captured on June 19, 2003, returned to California, and has commenced to serve his prison term.. As we shall explain, these subsequent events do not require reinstatement of th e appeal. We issue this opinion on denial of rehearing to briefly explain why this appeal should remain dismissed. (See Witkin, Cal. Procedure (4th ed. 1997) vol. 9, § 856, pp. 889

- 890.) "[A]n appellate court may employ dismissal as a sanction when a defendant’s flight operates as an affront to the dignity of the court’s proceedings." ( Ortega

- Rodriquez v. United
States (1993) 507 U.S. 234, 246 [l22 L.Ed.2d 58l, 595].) "It is often said that a fugitive 'flouts' the authority of the court by escaping , and that dismissal is an appropriate sanction for this act of disrespect. (Citations.)" ( Id ., at p. 245 [122 L.Ed.2d at p. 595) Recapture of the fugitive before any appellate process has begun and which does not interfere with the efficient operation of the 

### APPENDIX A9

appellate court may lead to reinstatement. ( Id. , pp. 244

- 246 [122 L.Ed.2d at pp. 594

- 595]

compare Allen v. Georgia (1897) 166 U.S. 138 [41 L.Ed. 949].) Petitioner contends that "he did not flout the authority of the Court of Appeal but if the Attorney General is correct in his assertion that Luster fled intentionally then only the authority of the trial court was flouted." (Supp. to Petn. for Rehg. p. 7.) This is a myopic view of the record. Here there is the required nexus betwee n appellant's fugitive status and the appellate process. ( Ortega

- Rodriguez v. United States, supra, 507 U.S. at pp. 249, 251 [122 L.Ed.2d at pp.597, 599.) Petitioner was originally incarcerated with the trial court setting bail at $10,000,000. In an unp recedented writ proceeding before this court, we were compelled to reduce bail because the court's order was a deprivation of the constitutional right to bail. We set bail at $1,000,000 along with other terms and conditions.

(B145l37, nonpublished opin ion by Yegan, J.; Gilbert, P.J. and Perren, J. concurring.) Petitioner posted the bail, and complied with the other terms and conditions for approximately two years, but fled during jury trial. Had petitioner voluntarily reappeared, he would have a muc h stronger argument for reinstatement of the appeal. By his flight to a foreign country, the inference is compelling that but for his capture he would be a fugitive to this day. That he is now serving his prison sentence and is once again subject to the court’s power does not, standing alone, provide a compelling
reason for reinstatement. Our ruling denying the petition for rehearing 1. upholds the authority of the Court of Appeal and discourages the flouting of the criminal justice system, 2. discoura ges felony escape, 3. encourages voluntary surrender, 4. promotes the orderly administration of justice, and 5. protects the people from prejudice by the passage of time in the event of reversal on appeal. Petitioner knew, or should have known, that his f light could be viewed as a waiver or abandonment of a statutory right to appeal. ( Ortega

- Rodriguez v. United States, supra, 507 U.S. pp. 240 [122 L.Ed.2d at pp. 591

- 592].) Petitioner places reliance on the recent per curiam opinion from division four of this
court, People v. Kang (2003) 107 Cal.App.4th 43. The authorities relied upon by Kang, while instructive, do not require that the appeal be reinstated. (See Auto Equity Sales Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) Moreover, we strongly d isagree with Kang's assumption that10

it is speculative that "dismissal discourages escape." ( People . Kang, supra, 107 Cal.App.4th at p. 52.) To the contrary, and as the Attorney General points out, the Kang decision gives the
defendant in a case such as this the incentive to flee because by doing so he has little to lose.

The petition for rehearing is denied.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.11 Kathryn Ann Stolz, Judge
Superior Court County of Ventur a

______________________________

J. David Nick and E. Michael Linscheid, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jaime L. Fuster,
Jos eph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.