Pena

*1299 Opinion

Arthur Samuel Pena (appellant) appeals from a judgment of conviction, following a jury trial, for burglary, forcible rape and forcible oral copulation. We affirm the judgment.

Facts and Proceedings Below

The victim, Ms. Helen B., is a woman in her late 50’s who is hearing impaired. She testified with the help of a sign-language interpreter. Ms. B. testified she had seen appellant twice before the rape, once at a neighbor’s yard sale, and again a week or month before the incident when appellant drove by her home and told her, “I’m gonna get you. I’m gonna fuck you.”

On June 27, 1988, about 2:30 p.m. Ms. B. was unlocking the door of her home when appellant approached her from behind carrying a cup. He said something about “water” and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, appellant got off of her, twisted her by the legs violently, and orally copulated her.

After the incident, Ms. B. drove to her sister’s home and told her she had been raped. She then went to see her regular physician, Dr. Singer. Ms. B. first testified the doctor was in a hurry and she did not have a chance to tell him what happened.…

I concur with those portions of the majority opinion which affirm the judgment of conviction. I do not agree, however, with the majority’s conclusion imposition of full, separate and consecutive sentences under Penal Code section 667.6, subdivision (c) was appropriate on this record.

The statement of reasons given by the trial court, and considered sufficient by the majority, suffers from the same deficiencies identified by our Supreme Court as unacceptable in People v. Belmontes (1983) 34 Cal.3d 335 [ 193 Cal.Rptr. 882 , 667 P.2d 686 ]. The majority opinion nevertheless holds it is sufficient if the record demonstrates the trial court was aware it had a sentencing choice between section 1170.1 and section 667.6 even if the reasons supporting the ultimate choice are wholly inadequate. Based on the doctrine of stare decisis, I am compelled to conclude the statement of reasons given by the trial court to justify consecutive sentences under the harsher provisions of section 667.6 is inadequate and the matter should be remanded for resentencing. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ] [“Courts exercising inferior…

WOODS (Fred), J.

Arthur Samuel Pena (appellant) appeals from a judgment of conviction, following a jury trial, for burglary, forcible rape and forcible oral copulation. We affirm the judgment.

The victim, Ms. Helen B., is a woman in her late 50's who is hearing impaired. She testified with the help of a sign-language interpreter. Ms. B. testified she had seen appellant twice before the rape, once at a neighbor's yard sale, and again a week or month before the incident when appellant drove by her home and told her, "I'm gonna get you. I'm gonna fuck you."

On June 27, 1988, about 2:30 p.m. Ms. B. was unlocking the door of her home when appellant approached her from behind carrying a cup. He said something about "water" and pushed her into her home and onto a rollaway bed in her living room where he raped her. Subsequently, appellant got off of her, twisted her by the legs violently, and orally copulated her.

After the incident, Ms. B. drove to her sister's home and told her she had been raped. She then went to see her regular physician, Dr. Singer. Ms. B. first testified the doctor was in a hurry and she did not have a chance to tell him what happened. Later, she…