Rodriguez

*209 Opinion

Defendant Rafael Rodriguez appeals from a judgment of conviction of seven counts: assault with a deadly weapon upon a police officer (count I, Pen. Code, § 245, subd. (b)); kidnaping (count II, Pen. Code, § 207); auto taking (count III, Veh. Code, § 10851); forcible rape (count IV, Pen. Code, § 261, subd. (2)); forcible sodomy (count V, Pen. Code, § 286, subd. (c)); forcible oral copulation (count VI, Pen. Code, § 288a, subd. (c)) and robbery (count VII, Pen. Code, § 211). The jury found true a firearm use allegation for each of the above offenses.

Defendant was sentenced to an aggregate term of 44 years. 1

Defendant argues the court committed prejudicial error in denying his motion to exclude a 13-year-old prior burglary conviction (People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal.Rptr. 313 , 492 P.2d 1 ]); his sentence on auto theft should have been stayed pursuant to Penal Code section 654 because it was incident to the kidnaping offense; and under the authority of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ], the court should have imposed only a single Penal Code section 12022.5 enhancement for the sex offenses rather than the three it…

I concur in the majority opinion, except for Part V, with which I respectfully dissent.

In light of the recent case of People v. Bergman (1984) 154 Cal.App.3d 30, 34-37 [ 201 Cal.Rptr. 54 ], hearing denied by the Supreme Court on June 13, 1984, the majority opinion creates a needless conflict in the law.

In People v. Perez (1979) 23 Cal.3d 545 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ], Justice Manuel, in discussing the commission of multiple sexual acts against a single victim, stated: “Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts.” (Id., at p. 552.) As in Perez , here, “[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other” (id., at pp. 553-554) and here, in each offense, a gun was involved. Perez defined such “base criminal” sexual attacks as more than an individual transaction, “not incidental to” but each “a separate and distinct act.” (Id., at p. 553.)

The basis of Perez was to ensure that a defendant’s punishment is commensurate with his culpability. This obviously was…

[Opinion certified for partial publication. [†] ]

OPINION

ANDREEN, J.

Defendant Rafael Rodriguez appeals from a judgment of conviction of seven counts: assault with a deadly weapon upon a police officer (count I, Pen. Code, § 245, subd. (b)); kidnaping (count II, Pen. Code, § 207); auto taking (count III, Veh. Code, § 10851); forcible rape (count IV, Pen. Code, § 261, subd. (2)); forcible sodomy (count V, Pen. Code, § 286, subd. (c)); forcible oral copulation (count VI, Pen. Code, § 288a, subd. (c)) and robbery (count VII, Pen. Code, § 211). The jury found true a firearm use allegation for each of the above offenses.

Defendant was sentenced to an aggregate term of 44 years. [1]

Defendant argues the court committed prejudicial error in denying his motion to exclude a 13-year-old prior burglary conviction ( People v. Beagle (1972) 6 Cal.3d 441 [ 99 Cal. Rptr. 313 , 492 P.2d 1 ]); his sentence on auto theft should have been stayed pursuant to Penal Code section 654 because it was incident to the kidnaping offense; and under the authority of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal. Rptr. 719 , 551 P.2d 23 ], the court should have imposed only a single Penal Code section…