Opinion
B163774.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ADEKUNLE OLOBA AISONY, Defendant and Appellant.
David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Adekunle Oloba Aisony, of various offenses related to his unwanted sexual advances committed against five young women. Appellant was convicted of forcible rape (Pen. Code, § 261, subd. (a)(2); count 1), sexual penetration by foreign object (§ 289, subd. (a)(1); count 2), attempted forcible oral copulation (§§ 288a and 664; count 3), felony false imprisonment (§ 236; counts 4, 5 and 10), misdemeanor battery (§ 242; counts 7, 11 and 12), assault with intent to commit a felony (§ 220; count 8), and sexual battery by restraint (§ 243.4, subd. (a); count 9). Appellant was sentenced to a total prison term of 10 years.
Unless otherwise indicated, all statutory references are to the Penal Code.
The jury found appellant not guilty of only count 6, misdemeanor battery as to victim Ashley B.
Contrary to appellants contentions, the trial court: (1) properly refused to sever counts 1 through 4 (as to victim Tiana W.) and counts 8 through 10 (as to victim Brittany H.) from the remaining counts; and (2) did not err by not instructing sua sponte on misdemeanor false imprisonment as a lesser included offense of felony false imprisonment.
FACTS
Counts 1-4 re Tiana W.
Tiana W., then age 17, met appellant several times walking on the street in the neighborhood where they both lived in Pasadena. In March of 2002, Tiana met appellant at a bus stop. Appellant told her his name was "Kule," showed her his passport and a blue passbook, and told her he was a Nigerian prince with lots of money. Tiana gave him her cell phone number. Appellant called her on March 12, 2002, the day before her 18th birthday, and told her he wanted to meet her at the corner of Grandview and Marengo to give her a birthday gift.
Tiana met appellant, who told her he wanted to give her $1,000. Appellant had an envelope containing money with him, but he did not want to give her the money at that time. Tiana was on her way to meet her boyfriend and told appellant that she would call him when she got back. Later that evening, she spoke with appellant who again asked to meet her.
Tiana again met appellant at the corner of Grandview and Marengo. They walked until they were under a bridge. Appellant tried to hug and kiss Tiana, but she pushed him away told him, "What are you doing? Move. Im not an affectionate person." Tiana also told appellant she did not like him "like that." When appellant asked if he could "lick" her, she said, "No. Just leave me alone." When appellant became more affectionate and aggressive, she told him, "Stop. No. Move."
Appellant then pulled down Tianas sweat pants, shorts, and underwear and tried to lick her. Tiana pulled her clothing back up, but appellant pulled them down again. Appellant twisted Tianas wrist and held her leg. She told him to stop and kept telling him "Stop. What are you doing? Youre raping me." Appellant told Tiana, "You can go ahead and yell all you want to. No one is going to hear you." Tiana was scared and nervous and began to cry. She protested to appellant, "Dont do this to me," but he removed everything she was wearing below her waist and threw it to the side.
When appellant attempted to put his tongue into her vagina, she put her legs together so he could only put his tongue on her pubic hairs. But appellant then put his finger inside Tianas vagina and asked her to let him "just rub my penis on you." Appellant put on a condom, Tiana again protested, and appellant started rubbing his penis on her. When she held his penis and rubbed it on herself in an effort to satisfy appellant so he would leave her alone, appellant told her, "No. No. Thats not good enough."
Appellant then grabbed Tianas feet, laid her on the ground, and pushed his penis inside her vagina. Appellant kept "jamming" himself into her until he ejaculated. He got up, threw the condom away, and told Tiana not to tell anyone what had happened and that he would transfer $10,000 into her account.
Tiana ran home, showered, and then told her cousin what had happened. Her cousin told her to call the police and dialed the number for her. The police arrived and brought her back to the scene of the rape where they took pictures and recovered the condom. Tiana was taken to a hospital and examined. She had some swelling, redness, abrasions and a laceration in the vaginal area consistent with her having been raped earlier that evening.
Count 5 re Ashley B.
In February of 2002, Ashley B. was sitting in front of a fountain at the University of Southern California where she was a student. Appellant approached Ashley, stated he was producing a television show, and asked her if she had ever done any advertising. When Ashley said she had not, appellant asked her if she would like to talk about it with him. They agreed to meet at the fountain later that afternoon, and appellant asked if she was interested in seeing his brother who allegedly played for the Clippers.
After they met at the fountain, they walked to the track office because appellant claimed he had a meeting with the track coach. As they were waiting, appellant told Ashley that he was from Nigeria, had gone to Oxford in England, and was a producer. Appellant also showed her a bank passbook, and asked her, "How much money should I put in your bank account? How about $600?" When Ashley asked why he would do that, appellant responded, "Well if youre going to ask why, Im not going to do it. Who asks why?"
Appellant then told Ashley that he would take her shopping. Ashley stated that she did not want to go shopping with appellant or take his money because she did not know him. However, Ashley gave appellant her cell phone number.
Appellant and Ashley spoke briefly a few times on the phone. On February 18, 2002, appellant called her and told her he had just gotten a big check and that he was in Pasadena with Spike Lee for a movie opening. At first, Ashley did not want to meet him, but then reconsidered because she thought it would be in a public area. She agreed to meet him at The Gap clothing store in Pasadena. Once there, appellant told Ashley that she could purchase some items she had tried on, or he would just give her $500 in cash. When Ashley chose the cash, they drove in Ashleys car to a bank ATM machine. However, Ashley noticed that appellant had purportedly gotten the money very quickly and then realized that the ATM machine was actually across the street from appellant.
Appellant got back into the car, and they went to a Starbucks where appellant bought some coffee for them both. When Ashley said she had to leave, appellant asked to be driven to a friends house. However, appellant directed her to the parking lot of a Laundromat, which was sparsely lit and where no other cars were located. They talked for a few minutes, and then appellant touched Ashley on her leg. Ashley told appellant to stop and pushed his hand away. Appellant told Ashley, "I dont want to have sex with you. I just want to feel you. I want to be one with you."
Ashley turned the car engine on, and appellant told her to drive behind two buildings. She drove to the location, but made sure that the car could still be seen from the street. There were no lights, but there was a van parked nearby with a person standing next to it. When appellant took the keys out of the ignition, Ashley became scared. She asked for the keys back, but appellant would not give them to her and said, "You dont want to see me get angry. Its not a good thing for me to get angry." Appellant then said, "You want to leave here in peace and not in pieces, right?" He added, "this is going to happen tonight," and "This is a bad neighborhood," and "Do you know what wasting someone means?"
Ashley was terrified and shaking. Appellant told her to go ahead and scream because no one would care. Ashley knew that appellant had the car keys, and surmised that because he knew the track coach at her school he could chase and catch her if she tried to run away. Just then a Pasadena police car pulled up behind Ashleys car, and the officer shined a bright light into her car. Pasadena Police Officer Diego Torres told appellant and Ashley that the area they were in was not safe and that they should leave. Ashley grabbed back her keys, jumped out of the car, and ran toward Officer Torres. She was nervous, shaken up and scared. Ashley told the officer about appellants threats and asked him to help her. The officer asked appellant to get out of the car. Ashley drove away, and appellant walked away.
Approximately three weeks later, appellant called Ashley on her cell phone and told her she looked cute today. Ashley hung up the phone, but when she turned around a few minutes later, she saw appellant. Ashley left.
Count 7 re Yana J.
Yana J. attended Pasadena City College and worked in the physical education department there. Appellant was on the track team, and Yana had given him some equipment to use. In early February of 2002, appellant approached Yana as she waited for a friend. Appellant told her he was a prince in Nigeria, that he had money, and he could buy things for her. Appellant also made a comment about American women that offended her, and Yana left when her friend arrived.
On February 13, 2002, Yana was walking on campus with her cousin when she overheard appellant tell another woman that he was prince and had money. As Yana passed by, she commented that appellant was lying. Yana and her cousin then went into a gym building. While inside the gym and waiting for her cousin, appellant approached Yana, punched her hard in the chest causing her to fall back onto a desk, and threatened that, "If you say something else to her, Im going to fucking kill you."
Yana filed a complaint with the campus police. Soon thereafter, as Yana and her cousin walked across the campus, appellant walked behind them and started cussing. Yanas cousin contacted the Pasadena Police on her cell phone. The police arrived and spoke with the campus police, who indicated that the incident had been handled.
Counts 8, 9 and 10 re Brittany H.
In March of 2002, Brittany H., who was 15 years old, went to meet her mother at Pasadena City College. Brittany went to the gym looking for her mother. As she left the gym, appellant approached her, and she recognized appellant as a friend of her mothers friend. Appellant offered her a ride home, and got into a car driven by appellants friend, Jonathan.
As they drove, Brittany pointed out her house. But Jonathan did not stop the car. Appellant told Brittany that he needed to go to his house to get some money. Once they reached appellants house, appellant told Brittany to get out of the car. She said she was fine in the car, but appellant asserted that Jonathan was going to leave and needed his car. Brittany kept asking if appellant was going to take her home.
Appellant took Brittany through the house and into his bedroom. She considered running out, but thought appellant or Jonathan would grab her. Brittany sat on the bed, and Jonathan gathered his things and left. Brittany kept asking appellant how he was going to get her home. She felt very scared. After Jonathan left the room, appellant turned off the lights, pushed Brittany down on the bed, and got on top of her. Appellant took off his shoes and started unbuckling Brittanys belt and unzipping her pants. Appellant took off his pants and with his boxer shorts still on began grinding his penis against Brittanys leg. She was scared and could not move.
When Brittany started to scream and cry, appellant asserted, "Bitch, youre going to let me do this." She screamed for appellant to get off her and hit appellant in the face. Appellant grabbed Brittanys breasts, squeezed them hard, and kissed her on the neck as she continued hitting him.
Appellant eventually got off of Brittany and went to the bathroom. While he was in the bathroom, she ran out of the house. Appellant ran after her and shouted that she had purportedly stolen something from his house. When appellant caught up with Brittany, he asked why she ran away. She stated that she was scared and he had just attacked her.
At that moment, two people in a car drove by and asked if anything was wrong. Brittany got in the car, and the couple drove her to her grandmothers house. Brittany told her grandmother what had happened, and a friend later contacted the police.
Count 11 re Cheryl J.
Cheryl J. worked at Pasadena City College in the student loan and grants office and took classes at the college. Sometime during the last week in February, appellant approached Cheryl as she was leaving class and walking back to her office. Appellant told her he had been watching her and wanted to get to know her better. Appellant told her he was from Nigeria, had lived in London, and had a million and half dollars in a bank account. He showed her a bank passbook and his passport, which had the word "Prince" before his name.
When appellant said he wanted to get something to eat, Cheryl agreed to go with him when she was done with work. Later, as Cheryl drove to the restaurant, appellant placed his hand on her thigh. She moved his hand away, but several minutes later, he placed his hand there again. Cheryl asked him to stop and moved his hand away again.
The following day, Cheryl and an African friend went to a restaurant with appellant. During their meal, appellant discussed his religious views toward women. He believed that women were evil and men had been placed in control of them for that reason. This conversation made Cheryl uncomfortable. Afterwards, she dropped appellant off at his house and told him she did not want to see him anymore.
Nevertheless, appellant continued to come by Cheryls office on campus in an attempt to continue meeting with her. Many times Cheryl had the receptionist at the front desk tell appellant that she was not there. One day, appellant started screaming and yelling at Cheryl. She again told appellant she did not want to see him any more. Cheryl told the people in the front office area to keep the front door closed so appellant could not just walk into her office. A few days later, appellant came by Cheryls office, and she hid under her desk to avoid contact with him.
On another occasion, appellant waited three hours outside Cheryls office until she got off work. He wanted to walk Cheryl to her car. As they walked down the stairs, appellant grabbed Cheryl by the arms and kissed her on the mouth. She pushed him away and told him to stop. Once they arrived at her car, appellant cursed at Cheryl.
Count 12 re Lauren C.
Lauren C. was a student at Pasadena City College. Appellant approached Lauren as she waited in line during the enrollment process at the college. Appellant told her that he worked at the school and had been watching her from his office. Appellant asked Lauren for her phone number, but she did not give it to him. Appellant told her he was a prince and showed her his passport. He also told her he had lots of money and showed her his bankcard. Appellant offered to take Lauren shopping or to give her money if she went out with him. Lauren repeatedly said no and told appellant that she was not interested.
As Lauren walked to her car, appellant followed her. He kept asking her for her phone number, and she refused to give it to him. When Lauren arrived at her car, opened the door and sat down, appellant crouched down next to the door. Lauren tried to close the door, but appellant kept pushing it open. Lauren repeatedly told him she had to leave. Appellant did not move away, and then he put his hand on her leg and stroked it up and down. When Lauren told him not to touch her, appellant stated, "The more you say no, the more Im going to want to do it." Lauren became scared and just drove off, not caring if she injured appellant with the car.
Lauren immediately drove to see her father, who reported the incident to the Pasadena Police Department.
Defense evidence
Appellants defense evidence at trial focused only on the counts pertaining to Brittany H. A former roommate of appellants testified in part that he saw appellant and Brittany embracing and kissing on the bed, and that she did not appear to be in any distress.
DISCUSSION
I. The trial court properly refused to sever the charges.
Appellant contends the trial court abused its discretion and denied him his federal constitutional right to a fair trial when it refused to sever counts 1-4 (pertaining to Tiana W.) and counts 8-10 (pertaining to Brittany H.) from the other counts. Prior to trial, appellant moved to sever those seven counts from the remaining six counts, five of which were misdemeanors. Appellant urged that standing alone, the counts were not particularly strong, that the misdemeanor battery counts had nothing to do with the other cases, and that the prosecutor was just attempting to attack appellants character by joining all the charges. The trial court denied the motion to sever, noting the factor of cross-admissibility. As the trial court explained, the testimony of the other victims would be admitted, pursuant to Evidence Code section 1108, because of appellants similar pattern of conduct with the victims.
Penal Code section 954 provides that "[a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." We review the trial courts decision on a motion for severance of counts for abuse of discretion, in light of the information available to the trial court at the time the ruling was made. (People v . Ochoa (1998) 19 Cal.4th 353, 408, 409.) "Because consolidation ordinarily promotes efficiency, the law prefers it." (Id. at p. 409.)
A trial courts refusal to sever consolidated counts may constitute an abuse of discretion where "`"(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a `weak case has been joined with a `strong case, or with another `weak case, so that the `spill-over effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case."" (People v. Jenkins (2000) 22 Cal.4th 900, 947-948.)
Here, the evidence would have been cross-admissible, and thus any inference of prejudice has been dispelled. (People v. Kraft (2000) 23 Cal.4th 978, 1030; People v. Jenkins, supra, 22 Cal.4th at p. 948.) Evidence Code section 1108 lists various sexual offenses that are admissible in any case where the defendant is charged with a sex crime. In the present case, appellant was charged and convicted of five of those statutorily enumerated crimes. Three of these offenses were committed against Tiana W. (counts 1-3) and two of those offenses were committed against Brittany H. (counts 8 and 9). Thus, the evidence as to those counts was cross-admissible under Evidence Code section 1108.
Moreover, had the severance motion been granted, evidence from the other five victims would have been admissible as relevant to prove common plan, pursuant to Evidence Code section 1101, subdivision (b). "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual . . . . [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan . . . . Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) A difference in a defendants degree of success in committing the other offenses does not make evidence of the offenses inadmissible. (People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 456.)
In each of the incidents charged, appellants common plan was to entice the women to go with him to a location where he could be alone with them and sexually assault them. Appellant was convicted of crimes against six different women. In each case, except for the situation involving Tiana W. (counts 1-4), appellant approached the victims on a college campus. Of these, four of the five initial encounters took place at Pasadena City College. In each case, except for the situation involving Brittany H. (counts 8-10), appellant told the victims that he was a prince from Nigeria (though he did not tell Ashley B. where he was from), and that he had lots of money. Typically, appellant showed the women his passport and his bank passbook. In each case, except for that with Brittany H., appellant offered to either take the women shopping or to give them money. In every case, except for that involving Yana J., appellant was able to be alone with the victims and touched them in a sexual manner, either touching them on the leg or kissing them. In each case, except for that involving Yana J., appellant did not stop when told by the women that they were not interested in him or when the victims moved his hand away.
Appellant urges that the batteries did not involve sexual intent and therefore would not have been admissible to demonstrate a common scheme or plan. However, two of the three batteries (counts 11 and 12, but not 7) involved touching the victims legs in a sexual manner. Admittedly, the battery of Yana J., punching her in the chest (count 7), was not sexual in nature, but appellants encounter with her up to that point had followed his familiar pattern. The offense was thus properly joined, as it reflected a common plan and not a merely series of spontaneous acts.
In any event, even if the evidence as to all the counts was not cross-admissible, the Supreme Court has held that "cross-admissibility is not the sine qua non of joint trials. [Citations.] `While we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice. [Citation.]" (People v. Sandoval (1992) 4 Cal.4th 155, 173; see also § 954.1.)
Considering the other relevant factors, we find no prejudice. Joinder did not, of course, make this a capital case. Although appellant urges that the sheer number of misdemeanor counts and complaining witnesses prejudiced him, the misdemeanor offenses were by definition not particularly egregious and not likely to inflame the jury. In fact, the jury acquitted appellant of the misdemeanor battery charged in count 6, so the evidence of rape and sexual battery could not have inappropriately inflamed the jury. (People v. Stewart (1985) 165 Cal.App.3d 1050, 1056-1057.) Also, since the charges in this case all derived from similar patterns of conduct by appellant, it is unlikely that any one incident was more "potentially inflammatory" than any other incident. (People v. Alvarez (1996) 14 Cal.4th 155, 189.) We find no abuse of discretion in the ruling denying severance of counts.
Finally, "misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his [constitutional] right to a fair trial." (United States v. Lane (1986) 474 U.S. 438, 446, fn. 8.) Apart from the fact that, as previously discussed, the cross-admissibility of evidence of other offenses dispels any prejudice, review of the record of appellants trial establishes that there was no gross unfairness resulting from the consolidation of counts that could have denied him due process. (People v. Ochoa, supra, 19 Cal.4th at p. 409.)
II. The trial court had no sua sponte obligation to instruct the jury with misdemeanor false imprisonment as lesser included offenses of felony false imprisonment regarding Tiana W. (count 4) and Brittany H. (count 10).
In People v. Breverman (1998) 19 Cal.4th 142, our Supreme Court reaffirmed well settled principles as to the duty to instruct on lesser included offenses. "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. . . . [¶] . . . [T]he existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.] `Substantial evidence in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude []" that the lesser offense, but not the greater, was committed. [Citations .]" (Id. at p. 162.)
In deciding whether there is substantial evidence of a lesser included offense to warrant a sua sponte instruction, "courts should not evaluate the credibility of witnesses" (Breverman , supra, 19 Cal.4th at p. 162), and may find substantial evidence "even in the face of inconsistencies presented by the defense itself." (Id. at p. 163, fn. omitted.) However, "sheer speculation" (People v. Lewis (1990) 50 Cal.3d 262, 277) as to certain facts will not constitute the requisite substantial evidence sufficient to support a lesser included offense instruction. (See People v. Lucas (1997) 55 Cal.App.4th 721, 739-740.)
Thus, a lesser included instruction need not be given when there is no substantial evidence that the offense is less than that charged; i.e., when the evidence is such that the defendant is either guilty of the charged offense or not guilty of any offense. (Breverman, supra, at p. 162; People v. Duncan (1991) 53 Cal.3d 955, 970.)
Appellants complaint here is as to the offense of false imprisonment, which is "the unlawful violation of the personal liberty of another." (§ 236.) False imprisonment is a felony when it is "effected by violence, menace, fraud, or deceit . . . ." (§ 237.) The violence necessary to commit felony false imprisonment is "the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint." (People v. Babich (1993) 14 Cal.App.4th 801, 806.) Misdemeanor false imprisonment is a lesser included offense of felony false imprisonment. (Id. at p. 807.)
In the present case, appellant used both deceit and violence, alternative elements of felony false imprisonment, to keep Tiana W. and Brittany H. from leaving. As to Tiana, appellant used force to restrain her by twisting her wrists and holding her leg, but went beyond that force when he caused her to fall onto the ground and then got on top of her so she was unable to push him off her. As to Brittany, appellant used physical force to restrain her by pushing her down and pinning her on the bed. But appellant went beyond that force when he removed her shoes, unbuckled her belt, unzipped her pants, and then grabbed and squeezed her breasts very hard, hurting her and resulting in Brittany hitting appellant in the face and screaming for him to get off her. Regarding both girls, appellant used deceitful ploys to lure them and thus to effect their false imprisonment, satisfying the alternative element of deceit for felony false imprisonment.
Accordingly, there was no substantial evidence that appellant committed any false imprisonment less than felony false imprisonment as to Tiana W. and Brittany H. The trial court thus had no duty to instruct the jury with the lesser included offense of misdemeanor false imprisonment.
DISPOSITION
The judgment is affirmed.
We concur: NOTT J. and ASHMANN-GERST, J.