Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH42344
Pollak, J.
Defendant Richard Leon Couey was convicted by a jury of one count of forcible rape, one count of residential burglary and one count of forcible oral copulation. The jury found true allegations that defendant had inflicted great bodily injury in the commission of the rape and oral copulation, and that those crimes were committed in the course of the burglary. The trial court found true three prior convictions. Defendant was sentenced to 50 years to life for the rape, plus a consecutive term of 25 years for the enhancements. Defendant’s attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. We find no arguable issue and shall affirm.
Background
There was substantial evidence of the following at trial. The victim testified that she knew defendant because he and his mother lived across the street from her. Before the day of the assault she had seen him approximately 20 times and talked to him about five times. On July 24, 2006, she came home around 9:00 p.m., changed into a dress and sat down to watch television. She had been watching for approximately 20 minutes when she heard a knock on her door. She looked in the peephole and saw defendant. She recognized him and opened the door. He asked to use the telephone to call his mother. “He was pretty polite. [¶] . . . [¶] I said, ‘Sure, come on in.’ ” Defendant went to the kitchen and the victim returned to the living room. Defendant returned to the living room and started “walking out to the front door.” He walked outside “and then he stayed by the front door—outside the front door.” The victim “was closing the front door, and . . . he said, ‘Wait a minute.’ He said, you know, ‘Let me talk to you.’ So I said, ‘Well, you know it’s getting late,’ and I keep on pushing the front door, and that’s when he pushed the door open.” Defendant pushed the door and knocked the victim down; she hit her head when she fell. Defendant entered the house and closed the door.
Defendant “start[ed] trying to kiss me and everything and I was fighting him.” She was dizzy from falling. She asked defendant “Why are you doing this?” but he did not answer. She began “screaming as loud as I could. Hopefully somebody would hear me.” Each time the victim screamed, defendant hit her in the face. He put his hand over her mouth and she kicked him. Defendant was touching her on her breasts. She begged, “Please don’t do this.” He told her “just to be quiet.” She also bit defendant on the right side of his chest. Defendant then dragged the victim into the bedroom, holding her by the wrists, and threw her on the bed. She was wearing bike shorts under her dress. He ripped off the shorts and removed her underwear. At one point, defendant had both his hands on her neck, trying to choke her. He opened the victim’s legs and “tried to have sex with [her].” He “put his mouth on [her] vagina” for what “seem[ed] like a long time.” Then he “took his pants off, and he tried to have intercourse with me.” He inserted his penis in the outer part of her vagina, but could not get an erection.
Defendant then “got up [and] told me, ‘Don’t call the police.’ ” Defendant left and the victim “got up and went to the bathroom. . . . [and] looked at my face . . . . [¶] . . . [¶] One of my eyes was shut already, and I was full of blood.” When she came out of the bathroom the front door was closed. She called 911 and the police arrived within approximately three minutes. They took her to the hospital and she remained in the intensive care unit for four days. Defendant had chipped her front tooth; broken her hand and one of her fingers, requiring surgery and physical therapy, and needed stitches on her nose and lips, which left scars.
Gary Cooper, a crime scene investigator, testified that on July 24, 2006, around 10 o’clock p.m., he responded to a call at the victim’s address with two other police officers. When the officers knocked on the door, a woman who “looked severely beaten” answered the door. “Both eyes appeared to be swollen closed. She was holding a cloth to her face that appeared to be blood soaked, and there was blood on the flowered blouse that she was wearing.”
The emergency room doctor who treated the victim testified that she had “obviously sustained a huge degree of head trauma.” She also had a “very, very deep” laceration on her lip that “probably went down to the bone.” “[B]oth sides of [her] nose were broken, and it wasn’t just snapped in one piece. It’s like two or three pieces.” Her skull and one of her forefingers were fractured as well. “She had blood under her skull, above her brain, and that’s a life threatening condition.”
Michelle Griese, another crime scene investigator, testified that she saw the victim in the hospital on July 25, 2006. She observed the sexual assault response team examination. Swabs were taken of the inside of the victim’s mouth and of the victim’s vagina. It was stipulated that the examination revealed “multiple body and facial bruises, . . . vaginal pain upon a genital exam, . . . mild erythema, . . . which is redness or inflammation in the apex or interior top of the vagina.” Griese also processed defendant. She collected his shoes, shirt, sweat pants, and boxer shorts. She also collected swabs “from the defendant’s penis and from the right side of his chest where there was a wound.” While examining defendant, she “noticed he had a wound on his right pectoral muscle.” When she examined the clothing she had collected, she observed a stained area on the toes of each of defendant’s shoes.
A forensic analyst testified that she analyzed DNA from the rape kit from the victim, and examined defendant’s shoes, one of which had spots that tested positive for blood. The DNA from the defendant’s shoe and the DNA from the victim’s oral swab, vaginal swab, and a swab taken from her chest all matched. “The probability of selecting an unrelated individual at random with the [DNA] types obtained is approximately 1 in 160 trillion African-Americans, 1 in 200 trillion Caucasians; and 1 in 4.2 quadrillion Hispanics.”
The analyst testified that the swab was from the chest of the victim although other evidence suggests the swab may have been from the chest of the defendant. The significance of the testimony is the same, regardless.
John Berk, a dentist with experience in bite mark analysis, examined a photograph of the wound on defendant’s chest and testified that it was likely a human bite mark.
Detective Gregg Crandall of the Fremont Police Department testified that he was called to investigate this case just after 11:00 p.m. on July 24, 2006. He went to the hospital where the victim was being treated and then to the victim’s home. The police obtained a search warrant and returned to the home of defendant’s mother with the warrant at approximately 7:00 a.m. on July 25. No one was in the house when they executed the search warrant. They collected an address label off of a box that contained items belonging to defendant. Crandall interviewed a neighbor who told him that defendant had left his house at 9:00 p.m. the night before, that he watched defendant walk down the driveway, and that he saw defendant “standing in front of [the victim’s] house for several minutes, just standing on the sidewalk in front of the house.”
Sergeant Sean Washington testified that he arrested defendant on July 26 at the home of defendant’s grandmother. Defendant was not read his Miranda rights when the police arrested him because they “had no intention of questioning him or interrogating him at that particular point. [¶] . . . [¶] We knew we had a lengthy ride all the way back to the police department, and whenever we interview someone—or I wouldn’t say whenever, but the majority of the time when we interview someone, we take him back to the police department, we have a room set up there where we can audio and videotape the interview.” The officers did not ask defendant any questions about the case on the ride to the police department. However, they stopped at a gas station to get something to drink. While at the gas station defendant “looked over to a display of a news stand . . . and he made a statement similar to, ‘Did I make the news,’ or ‘I made the news,’ or something similar to that.” Detective Fred Bobbitt testified that he was present when defendant asked if he had “made the news.” When they arrived at the Fremont Police station, defendant was placed in an interview room and read his Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant’s mother testified that she saw defendant around 12 or one o’clock in the afternoon on July 24, 2006. She also testified that defendant uses crack cocaine.
Dominica Wellridge testified for defendant. She stated that in 2006 she lived in Fremont with her mother and stepfather. On July 24, she saw defendant at her house in the late afternoon or early evening. They were smoking crack cocaine out of a glass pipe. Over a period of three to four hours they smoked several rocks, $40 to $60 worth. Defendant was hugging Wellridge and “was somewhat aggressive” towards her. He told her that he “can have anyone in this house.” She believed that defendant “has problems, because if a woman showed any type of friendliness towards him, he would interpret this as a sign that the woman wanted to have sex with him.”
Detective Keith Graves of the Livermore Police Department testified as a rebuttal witness and as an expert on the use and influence of crack cocaine. He testified that a person who smoked crack cocaine between 4:00 and 7:00 p.m. would not still be high at 9:00 p.m. because “crack cocaine, when you smoke it, lasts five minutes to ten minutes. Ten minutes being the max. It’s not a drug that lasts very long.” He testified that “[c]rack cocaine is not one of those inhibition reducing drugs. There are drugs that do do that, like ecstasy would be a good example, that might lower our inhibitions. But crack cocaine is a euphoric drug.” He also stated that “[t]here are a lot of crack cocaine users out there that don’t commit crimes every day. They don’t rob people, shoot people, what have you. They still function every day. I’ve asked them . . . would it make you want to go out and kill somebody? No. You know, you still know right from wrong. . . . [T]he crack cocaine, in and of itself, is not going to make you go out and do some heinous crime.”
Defendant was charged by first amended information with one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), with an allegation that he caused great bodily injury in the perpetration of the rape under section 12022.7, subdivision (a), that the offense was committed in the course of a burglary within the meaning of section 667.61, subdivision (e)(2), that the offense was committed in the course of a first degree burglary with the intent to commit a sex offense within the meaning of section 667.61, subdivision (d)(4), and that defendant inflicted great bodily injury on the victim within the meaning of sections 12022.53, subdivision (d), 12022.7, and 12022.8 and in the commission of the rape within the meaning of section 667.61, subdivision (e)(3). Defendant was also charged with one count of first degree residential burglary (§ 459) and one count of forcible oral copulation (§ 288a, subd. (c)(2)). In connection with the count of forcible oral copulation, it was alleged that defendant caused great bodily injury and that the offense was committed in the course of a first degree burglary. Three prior convictions and three prior separate prison terms within the meaning of section 667.5, subdivision (b) were alleged. Two prior strike offenses were also alleged under sections 1170.12, subdivision (c)(2) and 667, subdivision (e)(2).
All statutory references are to the Penal Code.
Defendant moved to bifurcate trial of the prior convictions, and the court granted the motion.
At the conclusion of the first phase of trial, the court gave two of defendant’s requested instructions, one on voluntary intoxication and one on the lesser included offense of attempted rape. The court declined to give two instructions requested by the prosecutor, on great bodily injury and penetration.
The defendant argued that he was not guilty of the burglary or of the burglary enhancements because of voluntary intoxication and that the evidence did not support the specific intent required for burglary—i.e. that he had the intent to rape or forcibly orally copulate the victim when he entered the house.
The jury found defendant guilty of all three counts and found the great bodily injury and burglary allegations true. Defendant waived his right to a jury trial on the prior convictions. The court found true all three prior convictions, that defendant had served a separate prison term for the first and the third prior, and that the first two prior convictions were “strikes” under section 1170.12, subdivision (c)(2.). After the sentence initially imposed was recalled, defendant was sentenced to 75 years to life in prison, as discussed more fully below. Defendant timely appealed.
Discussion
Defendant’s statements and Miranda warning
One of the detectives who arrested defendant, Frederick Bobbitt, testified at the hearing on defendant’s in limine motion to exclude his post-arrest statements. He testified that after defendant was arrested, he was handcuffed and placed in a police car to be driven to Fremont. Bobbitt testified that during the trip he remarked on “how hot it was and that [he] was from Oakland, from that area.” When they stopped at a gas station to buy drinks Bobbitt and the other officers did not ask defendant any questions “that had anything to do with the crime for which he was under arrest,” nor did they question him about anything else. However, “[w]hen we pulled into the Shell station, he looked over towards the area where the newspaper racks were and made a comment, asking if he had made the news.” Bobbitt testified that at the time defendant was under arrest but had not been told that he was under arrest. When defendant made the comment, one of the other detectives responded, “Well, yeah, you did.” There was no further conversation on the remainder of the drive. Defendant did not argue that his question about “ma[king] the news” should be excluded. Counsel stated, “Frankly, it looks from the evidence that it’s a spontaneous statement. It doesn’t look like it’s preceded by any questioning or softening up or any of that sort, so it is what it is.” The court stated, “I see it that way. He was in custody, sure, no question about that. It wasn’t the result of any kind of an interrogation. It was a question that he asked and as such, I don’t believe there would be any reason to exclude that.”
Counsel and the court were correct. When an individual is detained and voluntarily makes a spontaneous statement that is not in response to police questions or conduct, those statements are admissible. (See Miranda, supra, 384 U.S. at p. 478 [“Any statement given freely and voluntarily without any compelling influences is . . . admissible in evidence”].) A police officer is not obligated to prevent a suspect from volunteering incriminating statements. (People v. Edwards (1991) 54 Cal.3d 787, 815-816.)
When the police arrived with defendant at the Fremont police station they placed defendant in an interview room and gave him a Miranda warning. Defendant told the police that “he understood but wanted to know what we wanted to talk about.” The detectives “again explained that he did not have to answer any questions.” Defendant said “he would be okay with answering questions . . . .” During the interview the detectives asked defendant “if he feels bad about what happened.” Defendant replied, “Yeah. My mama had done told me something happened over there, so I feel bad for that because I know the lady.” A few moments later, defendant said to one of the detectives, “Do I got a right to talk with . . . you know what I’m saying? [inaudible] I got a right to talk to my lawyer?” The detective says, “Look at me. You did say something to me.” Defendant asks, “In the car?” and the detective answers “No, right now.” The detective then says, “Yeah, you felt bad. Okay. When you said, yeah, you felt bad, and that’s all I wanted to know. Okay. I’m not going to ask any details about it. As a matter of fact we’re not going to ask you any, but when I heard you say, yeah, you felt bad about what you did to her . . . Look at me. That’s all I wanted to know.” Defendant replied, “Yeah” and then “said something like, ‘oh fuck, oh, oh.’ Words to that effect.” The detective then told defendant “Well, if you want your lawyer, we’re not going to talk to you anymore. You know the rules, and you said you want a lawyer.” In view of the confusion about when defendant invoked his right to counsel, the court excluded all evidence of the statements made by defendant in the police station.
Motion to exclude lab analysis
Defendant moved to exclude any evidence of the results of the laboratory tests conducted with respect to the DNA of defendant and the victim. A laboratory technician examined a vaginal swab from the rape kit and a swab taken from the wound on defendant’s chest that the prosecution argued was a bite mark from the victim. The technician found DNA from a man in the vaginal swab and DNA only from a man on the chest swab, though this test was inconclusive. She was unable to determine the source of any of the DNA. Defendant argued that “if the analyst is not able to develop a complete DNA profile and make a statistical . . . probability calculation that [the analysis is] irrelevant.” The prosecutor did not seek to introduce evidence concerning the chest swab. The court denied the motion to suppress evidence of the vaginal swab, reasoning that if the analyst was “able to develop indicators on some of the locations on the DNA strand, but not all of them . . . if those that she’s able to develop are all consistent with the defendant, it’s relevant in telling the jury, number one, he’s not excluded, and number two, it’s consistent with him, although nobody can say that it matches his. That’s as far as it goes. All of that I think is relevant . . . . [W]hat it all means to the jury is another issue, and that’s something for counsel to argue . . . .”
The court was correct that the evidence was relevant under Evidence Code section 352. Moreover, since defendant did not argue that he did not commit the crimes, but only that he was not guilty of the burglary, there could have been no prejudice as a result of admitting the DNA evidence.
Prior uncharged offense
Defendant also moved to exclude evidence of prior offenses. The court excluded evidence of one misdemeanor conviction, of two arrests for domestic violence (§ 273.5), and of a conviction for assault with a deadly weapon (§ 245), and the prosecutor did not seek to admit other prior incidents. The court ruled that should defendant testify, the prosecutor could impeach him with evidence of a prior conviction for robbery. As defendant did not testify, this ruling never became relevant.
Marsden motion
During trial, defendant moved under People v. Marsden (1970) 2 Cal.3d 118 to replace his appointed counsel. Defendant alleged that he and his attorney had a conflict of interest. When questioned, defendant stated, “I have numerous of discrepancies [sic]. All in all, sir, I feel like me and [defense counsel] cannot coexist. With all due respect, a lot of challenge of testimonies . . . .” The court clarified, “You say he didn’t?” And defendant replied, “Yeah, not aggressive to challenge a lot of testimonies, so I feel like me and [defense counsel] can’t coexist. That’s about it, sir.” The trial court asked, “If I understand correctly, your beef with him seems to be that there have been witnesses who have testified to some things, and he hasn’t challenged them on some of those things, and that’s kind of what it boils down to, right?” Defendant replied, “Yes, sir.” When the court asked which witnesses, defendant replied, “I’m talking about several testimonies. I’m talking about the difference of—me and him have differences of jury selections. . . . I think one of the jurors could have been useful access to my trial, and she got excluded” by defense counsel. Defendant complained also about “several testimonies, like the officers, the detectives, you know, when challenged, questioned, a lot of the questions, it wasn’t challenged. My lawyer should know how to challenge questions. He been doing it longer than me.” The trial court asked for an example of a question or statement that defendant felt should have been challenged. Defendant replied that “when Detective Washington . . . said about me running and doing a lot of other things when they arrested me in Oakland, and it wasn’t accurate, it wasn’t true, and my lawyer should have challenged him on that, because I think that’s a key part of describing me and letting you guys know about certain things.” Defendant explained that although he had spoken with his attorney about the juror and the examination of Detective Washington, he did not understand his attorney’s decisions with regards to them.
Defense counsel explained that he had excused the juror because “I engaged her in some question and answer, and I put her on the spot, and I probably made her uncomfortable.” Counsel agreed with the trial court that “it was a judgment call” and said that he had explained to defendant that “the reason that I did was because I thought I made her mad.” As for aggressively challenging witnesses, defense counsel explained, “The defense is gonna be limited to whether or not we can convince this jury that [defendant] didn’t have the intent when he went in this doggone place to commit the burglary. Burglary has been set out in terms that the jury has got to believe that he entered that place with the intent to commit either forcible rape or forcible oral copulation, and if I could shed some doubt on that, that’s the best I can do in this case. Identity is just not a question, and there’s little or no question from . . . what I’ve seen in this case thus far as to whether or not count one and count three can be proven.” Defendant argued that his attorney “should challenge all the charges. The DNA. He should challenge the DNA.” The trial court asked defendant “Do you expect him to try to beat the rape charge and the oral copulation charge? Is that really what you’re looking to do here?” Defendant replied, “Yeah.”
The court explained to defendant that no conflict of interest existed between him and his attorney, but that they had only “a disagreement of how to handle a trial and strategic and tactical decisions to make. It’s differences of opinion. . . .” The trial court explained that defense counsel is entitled to make “tactical and strategic decisions . . . during the course of the trial, and even though [defendant] may not necessarily agree with them.” The court denied defendant’s motion.
We review denial of a Marsden motion for abuse of discretion. (People v. Webster (1991) 54 Cal.3d 411, 435.) “The law governing a Marsden motion ‘is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 857.) Disagreement on tactical decisions or the defendant’s professed lack of trust in counsel does not amount to a conflict sufficient to justify granting a Marsden motion. (Id. at p. 858.)
The court here followed the correct procedure in hearing defendant’s Marsden motion and did not err in concluding that no irreconcilable conflict existed and that defendant was not being deprived of his right to counsel. Counsel’s decision to dismiss a juror whom he believed he had angered during voir dire was a reasonable decision based on his experience. Likewise, challenging the DNA evidence or more vigorously questioning the arresting officer concerning the circumstances surrounding defendant’s arrest would not have served to advance the defense’s theory of the case and therefore it was reasonable not to pursue these tactics.
Sentencing
Defendant was sentenced to 25 years to life imprisonment for the rape conviction. Section 667.61, subdivision (a) provides that anyone convicted of rape by means of force, violence, duress, menace, or fear, “under one or more of the circumstances specified in subdivision (d) . . .shall be punished by imprisonment in the state prison for 25 years to life.” Subdivision (d)(4) specifies the circumstance that “[t]he defendant committed the present offense during the commission of a burglary [of an inhabited dwelling] with intent to commit [rape].”
Defendant’s sentence was doubled to 50 years to life because of his prior strike under section 667, subdivision (e), which provides that “in addition to any other enhancement or punishment provisions which may apply . . . [¶] (1) [i]f a defendant has one prior conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” The trial court struck the allegations supporting additional punishment for the great bodily injury.
Defendant was sentenced to the upper term of six years on the burglary conviction “because of the defendant’s increasingly serious record of criminal convictions, the fact that he had just been released on parole that same day, and the viciousness with which this crime was carried out.” The trial court stayed that sentence under section 654.
On the conviction for forcible oral copulation, the trial court initially sentenced defendant to 25 years to life, doubled to 50 years to life because of the strike prior and ordered that the sentence run consecutively to the sentence in count one. The court subsequently granted defendant’s motion to recall the sentence on this count and reduced this sentence to 16 years, consisting of the eight-year upper term under section 288a, subdivision (c)(2), doubled because of the strike prior. The court initially struck the punishment for the allegation of infliction of great bodily injury relating to this count (see § 1385; Cal. Rules of Court, rule 4.428; People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156), but when resentencing on this count, imposed an additional three years for the great bodily injury under section 122022.7, subdivision (a) (see § 1170, subd. (d) [on defendant’s motion within 120 of sentencing the trial court may “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence”]).
Defendant was sentenced to an additional consecutive year for the first prior conviction and five consecutive years for the second prior conviction, which was a serious felony under section 667, subdivision (a)(1).
Defendant was therefore sentenced to 75 years to life. Defendant received credit for 650 days plus 97 days of conduct credit. He was ordered to pay restitution of $2,353.63 to the victim, plus a restitution fund fine of $10,000 and a parole restitution fine of $10,000. Imposition of these fines was stayed pending successful completion of parole. We find no error in the computation of the sentence as corrected.
Disposition
Defendant was advised of his right to file a supplemental brief and has not done so. Defendant was at all times represented by competent counsel. We find in the trial record no issues warranting further briefing or consideration. The judgment is affirmed.
We concur: McGuiness, P. J, Siggins, J.