Filed 5/15/24 P. v. Simmons 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CARL DWAYNE SIMMONS,

 Defendant and Appellant.

2d Crim. No. B329462

(Super. Ct. No. SB214013)

(Santa Barbara County)

In 1996, Carl Dwayne Simmons was convicted of a number 

of crimes relating to the kidnapping and sexual abuse of a 

juvenile. The court sentenced Simmons to 27 years four months,

plus life with the possibility of parole in 15 years. The sentence

included two years for two prior prison term enhancements 

pursuant to former Penal Code section 667.5, subdivision (b).1

Simmons petitioned for resentencing pursuant to section 

1172.75. The trial court struck the prior prison term 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

enhancements, but otherwise reimposed the original sentence. 

Simmons contends the trial court erred in reimposing the original 

upper term and reimposing consecutive sentences. He also

contends the court erred in failing to update his custody credits.

We remand for the trial court to update Simmons’s custody

credits. In all other respects, we affirm.

FACTS

A jury found Simmons guilty of false imprisonment by 

violence (§ 236) (count 1); rape by force or violence (§ 261, subd. 

(a)(2)) (count 2); forcible oral copulation (former § 288a, subd. (c))

(counts 3 and 4); sodomy by use of force (§ 286, subd. (c)) (count 

5); rape by foreign object (§ 289, subd. (a)) (count 6); and 

possession for sale of cocaine base (Health & Saf. Code, 

§ 11351.5) (count 7). The jury also found true that Simmons

personally used a deadly weapon in connection with counts 5 and 

6. (Former § 12022.3.) Two prior prison term enhancements 

were also found true under former section 667.5, subdivision (b).

Underlying Offense2

Lilly O., who was 17 years old at the time of trial, obtained 

a sack of crack cocaine from Simmons. She intended to sell the 

cocaine. She believed it would sell for $150 and that she would 

get to keep $50. Instead, her roommate's stepbrother stole the 

cocaine. Lilly O. knew she would be in trouble with Simmons 

when she could neither give him the money nor return the drugs.

Simmons found Lilly O. at her home. When Lilly O. told 

Simmons that she did not have the drugs or the money, he told 

her she was going to get "broke off." Lilly O. understood this to 

2 The facts are taken from our opinion in Simmons’s appeal 

of the original conviction. (People v. Simmons (Feb. 17, 1998, 

B108576) [nonpub. opn.].)
3

mean she would be beaten or killed. Simmons told her to get 

dressed for work. Because he picked out a short skirt for her, she 

assumed he was talking about prostitution.

Lilly O. put on the clothes Simmons chose for her and left 

the residence with him. She did not try to run because she 

believed she could not hide all her life. Simmons threatened that 

if she tried to escape he would shoot her. After they stopped at a 

number of places, he took her to a motel in Carpinteria.

In the motel room Simmons became physical and rude. He 

locked all three locks on the door. He told her to remove her 

clothes and perform oral sex on him. She complied out of fear. 

After she was done, he made her sit in the corner "Indian style" 

with knees "smashed up to the wall." Circular bruises appeared 

on her knees as a result of them being smashed against the wall.

After Lilly O. sat in the corner for about 20 minutes, 

Simmons pulled her up by the hair. He told her to orally copulate 

him again and she complied.

The next sex act Lilly O. could remember was "regular sex." 

She told Simmons to stop, but he would not. She was crying and 

told him it hurt, but it had no effect on him.

During Lilly O.'s captivity in the motel room, she was made 

to sit in the corner two or three times. Simmons hit her on the

head with his open hand and his closed fist. When he hit her 

with his fist, her head hit a dresser, raising bumps on her head. 

Simmons told her not to scream or cry or he would kill her. He 

told her he was going to put duct tape over her mouth and watch 

her suffocate.

At one point he ran a razor down her face, causing a bald 

spot on her cheek. He told her it would be sad if he scarred her 

for life. He said the razor was a "legal weapon." She said it felt 
4

like he was really going to hurt her. He told her, "This is true 

pimp shit, and this is Inglewood."

At another point while Lilly O. was in the corner, Simmons 

put a belt around her neck and tightened it. She thought she was 

going to die because she could not breathe. He took the belt off. 

She felt nauseated and light-headed. She could feel her pulse in 

her face. He told her she was no fun because she could not even 

scream or cry in the way he wanted.

Finally, just before they left the motel, Simmons told 

Lilly O. he was going to sodomize her. Before he sodomized her,

he put baby oil on his finger and inserted it in her "butt." While 

he was sodomizing her, she cried and told him it hurt, but he 

kept on going even harder.

After Simmons and Lilly O. left the motel room, they went 

to Simmons's car. Simmons received a call on his pager. They 

went back to the motel so that Simmons could use a pay phone 

near the office. A man was using the pay phone. As Lilly O. and 

Simmons approached, Lilly mouthed "help me" to the man. The 

man, who happened to be a Los Angeles County Deputy Sheriff, 

detained Simmons. Lilly O. ran into the motel office, leaped over 

the desk, and curled into a ball in the manager's apartment.

Santa Barbara County Sheriff's Deputies arrived at the 

motel. Simmons volunteered to a deputy that he and a friend 

were at the motel and they had sex. A pat-down search of 

Simmons yielded a marijuana pipe and cocaine.

Original Sentence

The trial court sentenced Simmons to a determinate term 

of 27 years four months in state prison as follows: 1) the upper 

term of eight years for count 2; 2) the upper term of eight years,

consecutive, for count 3; 3) the upper term of eight years, 
5

consecutive, for count 4; 4) one-third the middle term, eight 

months, consecutive, for count 1, stayed under section 654; and 5) 

one-third the middle term, one year four months, consecutive, for 

count 7. For count 5 and 6, the court sentenced Simmons to life

with the possibility of parole in 15 years under section 667.61, 

subdivision (e)(4). The court imposed two years in prison,

consecutive, for the enhancements under former section 667.5, 

subdivision (b).

Section 1172.75 Motion

In September 2022, Simmons filed a motion for 

resentencing pursuant to section 1172.75. Simmons requested 

that, in addition to striking the prior prison term enhancements, 

the trial court should reduce the upper term sentences on counts 

2, 3, and 4, and impose concurrent sentences on counts 3, 4, and 

7. The court struck the prior prison term enhancements, but 

otherwise reimposed the original sentence.

In deciding to reimpose the original sentence, the court 

stated:

“The Court has considered [California] Rule[s] of Court[, 

rule] 4.421(a) in deciding to impose the upper term, the factors in 

aggravation, that the crimes involved greatviolence, threat of 

great bodily harm, the acts involved a high degree of cruelty, 

viciousness, or callousness, and that the victim was particularly 

vulnerable.

“The Court also considered the factors under [California] 

Rule[s] of Court[, rule] 4.421(b) that [Simmons] engaged in 

violent conduct that indicates a serious danger to society, that his 

prior convictions as an adult were increasing in seriousness, that 

he was on parole at the time the crimes were committed.
6

“The Court has also considered [California] Rule[s] of 

Court[, rule] 4.423, the circumstances in mitigation, and the only 

mitigating factor the Court found was that [Simmons] was 24, his 

age at the time of the crime.The Court has weighed the 

mitigating factor against the numerous aggravating factors and 

found that the aggravating factors outweigh the one mitigating 

factor, which [is cause] for an upper term for the sentences in 

Counts 2, 3, and 4.

“I've also considered [California Rules of Court, rule] 4.425 

in deciding to impose a consecutive rather than concurrent 

sentence.” 

DISCUSSION

I

Section 1172.75, subdivision (a) provides that a sentence 

enhancement for a prior prison term (§ 667.5, subd. (b)) imposed 

prior to January 1, 2020, is invalid. Section 1172.75, subdivision 

(c) requires the court, upon finding a judgment includes such an 

enhancement, to recall the sentence and resentence the

defendant. In resentencing, the court must apply any changes in 

the law that reduce sentences or provide for judicial discretion so 

as to eliminate disparity and promote uniformity in sentencing. 

(Id., subd. (d)(2).)

II

Simmons contends the trial court erred in reimposing the 

upper term on counts 2, 3, and 4.

Simmons relies on section 1170, subdivision (b)(2), which

provides, in part: “The court may impose a sentence exceeding 

the middle term only when there are circumstances in 

aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term and the facts 
7

underlying those circumstances have been stipulated to by the 

defendant or have been found true beyond a reasonable doubt at 

trial by the jury or by the judge in a court trial.”

Simmons points out that the circumstances in aggravation 

that justified the imposition of the upper term on counts 2, 3, and 

4 were not stipulated by him or found true beyond a reasonable 

doubt at trial.

But Simmons was not resentenced under section 1170. He 

was resentenced under section 1172.75. The resentencing 

scheme specific to section 1172.75 applies.

Section 1172.75, subdivision (d)(4) provides: “Unless the 

court originally imposed the upper term, the court may not 

impose a sentence exceeding the middle term unless there are 

circumstances in aggravation that justify the imposition of a term 

of imprisonment exceeding the middle term, and those facts have 

been stipulated to by the defendant, or have been found true 

beyond a reasonable doubt at trial by the jury or by the judge in a 

court trial.”

Under section 1172.75, subdivision (d)(4), the phrase 

“[u]nless the court originally imposed the upper term” carves out 

an exception to the requirement that aggravating factors must be 

admitted or proven. Here, because the trial court originally

imposed the upper term on counts 2, 3, and 4, there was no need 

for a stipulation or proof beyond a reasonable doubt to reimpose

the upper term.

Simmons’s reliance on People v. Butler (2023) 89 

Cal.App.5th 953, review granted May 31, 2023, S279633, is 

misplaced. Butler did not involve resentencing under section

1172.75.
8

III

Simmons contends the trial court erred in imposing 

consecutive sentences on counts 3, 4, and 7.

Count 2, rape, and counts 3 and 4, forced oral copulation, 

are crimes enumerated in section 667.6, subdivision (e). Section 

667.6, subdivision (d)(1) 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 same victim on separate occasions.”

Section 667.6, subdivision (d)(2) provides: “In determining

whether crimes against a single victim were committed on

separate occasions under this subdivision, the court shall

consider whether, between the commission of one sex crime and

another, the defendant had a reasonable opportunity to reflect

upon the defendant’s actions and nevertheless resumed sexually

assaultive behavior. Neither the duration of time between crimes,

nor whether or not the defendant lost or abandoned the

opportunity to attack, shall be, in and of itself, determinative on

the issue of whether the crimes in question occurred on separate

occasions.”

Under section 667.6, subdivision (d)(1), consecutive terms 

are mandatory if the crimes involve the same victim on separate 

occasions. In determining whether the sex crimes occurred on 

separate occasions, the trial court must consider whether, 

between one crime and another, the defendant had a reasonable 

opportunity to reflect on his actions.

Here, after the first oral copulation, Simmons made his 

victim sit in the corner for 20 minutes before forcing her to orally 

copulate him again. That was more than an ample opportunity

for Simmons to reflect on his actions before committing the 
9

second forced oral copulation. The trial court so found at 

Simmons’s original sentencing. There is no reason to believe the 

court made a different finding here.

As to count 7, the trial court’s references to the prior 

sentencing transcript and California Rules of Court, rule 4.425 

were sufficient to support a consecutive sentence.

IV

Simmons contends the matter must be remanded to the 

trial court to correctly calculate his custody credits. The People 

agree.

When a court resentences a defendant, it must recalculate 

his custody credits to the date of resentencing. (People v.

Buckhalter (2001) 26 Cal.4th 20, 29.) The court failed to do so 

here.

The matter is remanded to the trial court to recalculate

Simmons’s custody credits to his May 31, 2023, resentencing date 

and to amend the abstract of judgment to reflect those credits. In 

all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. BALTODANO, J.
Von Deroian, Judge

Superior Court County of Santa Barbara

______________________________

Susan S. Bauguess, 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, Assistant 

Attorney General, William H. Shin and Wyatt E. Bloomfield, 

Deputy Attorneys General, for Plaintiff and Respondent.