Opinion
C084224
11-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JAMES GALLOWAY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F02903)
A jury convicted defendant Anthony James Galloway of first degree burglary (Pen. Code, § 459; statutory section references that follow are to the Penal code; count one), assault with intent to commit rape during commission of first degree burglary (§ 220, subd. (b); count two), and two counts of forcible oral copulation (§ 288a, subd. (c)(2); counts three and four). In connection with counts three and four, the jury sustained the allegations that defendant personally used a dangerous and deadly weapon (§§ 667.61, subd. (e)(3), 12022, subd. (b)(1), 12022.3) and committed the offenses with the intent to commit larceny or an act of forcible oral copulation (§ 667.61, subd. (e)(2)).
The court sentenced defendant to state prison for an aggregate term of 57 years to life, that is, seven years to life on count two, a stayed term on count one, and consecutive terms of 25 years to life each on counts three and four.
Defendant appeals. He contends (1) insufficient evidence supports the finding that he personally used a deadly weapon in connection with counts three and four, (2) insufficient evidence supports his conviction for assault with intent to commit rape during the commission of a burglary (count two), and (3) his sentence constitutes cruel and unusual punishment. We reject these contentions. Although not briefed by the parties, we note that first degree burglary is a lesser included offense of assault with intent to commit rape during the commission of first degree burglary and will dismiss count one, first degree burglary. As modified, we will affirm the judgment.
FACTS AND PROCEEDINGS
At 3:30 a.m. on May 12, 2015, Daniel S. and Heidi H. were awakened by someone tapping on the window above their bed. Daniel pulled the blinds up, noticed the window screen was missing, and saw a man, later identified as defendant, standing very close to the window that was open about eight inches. Defendant asked, "Jimmy, where's my money?" Daniel responded that he had no money and that Jimmy did not live in the apartment. Defendant looked to the right as if someone else was standing there and said a couple of times, "Get the shotgun." Daniel and Heidi feared someone was armed with a shotgun and stepped back from the window which allowed defendant to lift the window the rest of the way and climb into the apartment, over the bed, and near the bedroom doors. Heidi saw that defendant was holding a hammer. She was scared. Defendant looked around, closed the bedroom doors, and ordered Daniel to close the bedroom window. Daniel believed defendant was armed with something in his hand and did so.
Defendant then ordered Daniel several times to "put [his] face in [Heidi's] pussy." Fearing that defendant might attack them with his weapon, Daniel put his face near Heidi's lap and told defendant to take what he wanted and leave. Defendant moved closer to the couple, picked up Daniel's cell phone and used the screen as a light, and stated, "Put your tongue in her pussy. I don't hear any licking." Heidi just stared at defendant. Defendant told her to stop looking at him and pulled her hair in the back, telling her to get down. She sat back up and he pulled her hair again. Heidi was terrified that defendant planned to rape and kill her. Daniel resisted defendant's demand to orally copulate Heidi. Defendant threatened to return with a "bunch of other guys" and started to slap Heidi's legs, ordering her to open them wider. Daniel pulled Heidi's underpants down and pretended to lick her vagina. Defendant moved closer to the pair and shined the cell phone light on Heidi's vagina. Daniel felt he had no other choice and licked Heidi's vagina while defendant watched.
Defendant said, "I'll fuck her from behind while she sucks your dick." Daniel was terrified, realizing that defendant planned to rape Heidi, not steal their property. Daniel responded that he would not allow defendant to rape Heidi. Defendant threatened, "I'm not leaving here without getting my dick sucked." Defendant then pulled out his erect penis. Heidi threatened to bite off defendant's penis. Defendant told her he would kill Daniel if she bit him.
Daniel moved between defendant and Heidi, told Heidi to run, and attacked defendant. Instead of running, Heidi broke the bedroom window with her fist and started to scream for help. Defendant and Daniel struggled with each other on the bedroom floor. Defendant eventually let go and ran out of the apartment through the living room door. Heidi called 911 on her cell phone.
On the bedroom floor, defendant left behind a hammer and his blue T-shirt with his DNA. Daniel's cell phone was missing. Daniel noted that at the beginning of the ordeal, defendant had opened Daniel's wallet, said, "I know where you live," and picked up Daniel's cell phone.
Daniel noted that the outside porch light bulb had been unscrewed just enough for the light to go out. He stated that the porch light is left on "24/7."
Daniel had red marks on his neck and arms, bruises on his back, and rug burns on both knees, all as a result of his struggle with defendant. Heidi had several lacerations on her hand sustained when she punched out the window.
An officer saw defendant jumping over a fence into a backyard of a residence not far from the crime scene. Defendant was arrested. Defendant complained of pain and was taken to a hospital where he jumped off a gurney and tried to flee. Defendant was caught again. Defendant's behavior was described by officers as being paranoid, agitated, and sweating profusely which suggested that he was under the influence of methamphetamine. A blood sample drawn from defendant tested positive for amphetamine and methamphetamine.
After two hours, defendant was released from the hospital and taken back to the crime scene for a field show-up. Heidi identified defendant. She was 95 percent certain. Daniel was unable to identify defendant. Daniel wore glasses and did not put them on when he woke up and pulled up the blinds. Daniel also explained that defendant was far away for the field show-up.
Defendant testified that the day before the incident he used methamphetamine several times. He admitted entering the victims' apartment through a window but claimed he thought the apartment was unoccupied and believed he was being pursued. He had no memory of asking about "Jimmy" and did not know anyone by that name who lived at the apartment. Defendant remembered Daniel opening the blinds. When defendant entered the apartment, he remembered he lifted the window up. He remembered the victims were scared and told him to take whatever he wanted but he told them he did not want anything. He had no memory of carrying a hammer. He remembered, however, leaving his T-shirt on the bedroom floor because he wanted to look different to the people who were chasing him. Defendant remembered hearing the police coming and being tackled by an officer. Defendant denied he entered the apartment with the intent to steal, engage in sexual acts, or force the victims to engage in sexual acts.
DISCUSSION
I
Use of a Deadly Weapon
Defendant contends insufficient evidence supports the finding that he personally used a deadly weapon in connection with his participation in forcible oral copulation of Heidi and Daniel, counts three and four. Defendant argues that while he entered the apartment armed with the hammer, he claims there is no evidence he displayed the hammer in a manner to instill fear in Daniel or Heidi. We conclude there is sufficient evidence to support the jury's finding.
In connection with counts three and four, the jury sustained the use enhancement under sections 667.61, subdivision (e)(3), 12022, subdivision (b)(1), and 12022.3. Section 667.61 provides, in relevant part, as follows: "The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, . . . ."
Section 12022, subdivision (b)(1) provides: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished . . . ."
Section 12022.3, subdivision (a) provides: "For each violation of Section 220 involving a specified sexual offense, or for each violation or attempted violation of Section 261, 262, 264.1, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive the following:
"(a) A 3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation."
" ' "We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence." [Citation.]' [Citation.] 'The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt.' [Citation.] [¶] . . . 'In order to find "true" a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]' [Citation.] [¶] . . . As we have recognized in the context of former section 12022.5, subdivision (a), ' "The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed." [Citation.] "Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." ' [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197-1198, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Here, defendant concedes he entered the apartment with the hammer and met no resistance to his entry. Daniel and Heidi complied with defendant's demand to close the window and engage in an act of oral copulation because they knew he had the hammer. They were both afraid of the weapon defendant held when he entered the apartment. Defendant had the hammer during the entire time he was in the apartment and when he forced Daniel to orally copulate Heidi. He reinforced the victims' fear by threatening to kill Daniel if Heidi did not comply with defendant's demand for oral sex. Even when Daniel attacked defendant, Daniel expected to die or be severely injured by defendant. Defendant made the presence of the hammer known, intimidating the victims, thus using it to facilitate his offenses. Sufficient evidence supports the jury's findings that defendant personally used a dangerous or deadly weapon in commission of the offenses in counts three and four.
II
Intent
Defendant next contends insufficient evidence supports his conviction for assault with intent to commit rape during a burglary (count two). Defendant challenges only the evidence of intent. He argues the evidence showed that he assaulted Heidi with the intent to force Heidi to commit an act of oral copulation rather than sexual intercourse. He claims the evidence shows he assaulted her when he slapped her thigh to get her to spread her legs for Daniel to orally copulate her. Defendant claims the assault could have also occurred when he pulled Heidi's hair as a "prelude . . . to have Heidi suck [defendant's] 'dick.' " We conclude sufficient evidence supports his conviction.
"On appeal, the test for sufficiency of the evidence is whether evidence was presented from which a reasonable trier of fact could conclude, beyond a reasonable doubt, that the prosecution sustained its burden of proof. [Citation.] Although we assess whether the evidence is inherently credible and of solid value, we must also view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence. [Citation.]" (People v. Reed (2018) 4 Cal.5th 989, 1006.)
"Intent to commit rape is the intent to commit the act against the will of the complainant. [Citations.] A defendant's specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence. [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1130, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal.App.4th 413, 420.)
When defendant stated, "I'll fuck her from behind while she sucks your dick," defendant stated his express intent to rape Heidi. Heidi believed defendant planned to rape her as did Daniel. Defendant had also touched Heidi in a sexual manner, slapping her legs to force them wider. Defendant also said, "I'm not leaving here without getting my dick sucked" and pulled out his erect penis. That he had also formed the intent to force Heidi to orally copulate him does not exclude his intent to rape her. We must review the evidence and draw inferences most favorable to the judgment. To conclude that defendant only intended to commit oral copulation would ignore his unambiguous statement that he intended to rape her as well. Sufficient evidence supports defendant's conviction on count two.
III
Cruel and Unusual Punishment
Finally, defendant contends his aggregate sentence of 57 years to life constitutes cruel and unusual punishment. He concedes that defense counsel did not object so the issue is not preserved for appeal. We conclude that defendant has forfeited the issue and we will not discuss the issue on the merits. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
IV
Lesser Included Offense
In People v. Dyser (2012) 202 Cal.App.4th 1015, this court concluded that first degree burglary is a lesser included offense of assault with intent to commit rape during the commission of first degree burglary. (Id. at pp. 1020-1021.) Here, count one, first degree burglary, is a lesser included offense of count two, assault with intent to commit rape during the commission of first degree burglary. We will dismiss count one. Because this error is an obvious error not subject to dispute, we are compelled to correct it now. In the interests of judicial economy, we do so without having requested supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is modified, dismissing count one, first degree burglary. There is no change in sentence since the trial court stayed sentence on count one (§ 654). The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. RENNER, J.