From Casetext: Smarter Legal Research

People v. Gillespie

California Court of Appeals, Fifth District
Jul 22, 2008
No. F051927 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F06901645-2. Ralph Nunez, Judge. (Retired judge of the superior court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)

Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Kane, J.

Defendant was convicted of three sex offenses he committed at knifepoint on a 15-year-old girl after he entered her home during the night. On appeal, he argues (1) his conviction for attempted rape cannot stand because it is a lesser included offense of assault with intent to commit rape and (2) even if the conviction for attempted rape was proper, the trial court improperly imposed a full, consecutive upper term for that conviction. We will vacate the sentence on the attempted rape conviction and remand for resentencing. In all other respects, we will affirm.

PROCEDURAL SUMMARY

On November 9, 2006, the Fresno County District Attorney charged defendant with attempted forcible rape (Pen. Code, §§ 664, 261, subd. (a)(2); count 1), sexual penetration by force (§ 289, subd. (a)(1); count 2), and assault with intent to commit rape (§ 220; count 3). The information also alleged various weapon use and other allegations.

All statutory references are to the Penal Code unless otherwise noted.

A jury found defendant guilty on all counts and found true most of the enhancement allegations. The trial court found true the prior strike conviction allegation.

The trial court sentenced defendant to 65 years to life on count 2, as follows: 50 years to life, plus a 10-year enhancement for using a deadly weapon during a sex offense and a five-year prior serious felony enhancement. On count 1, the court imposed the full, upper term of eight years to be served consecutively to the sentence in count 2. On count 3, the court imposed a 12-year term, plus a one-year enhancement for personal use of a deadly weapon, but stayed the sentence pursuant to section 654.

FACTS

On the night of October 26, 2002, Irma A. and her 15-year-old daughter, Amber, were asleep in their home. At about 11:00 p.m. or midnight, Irma heard footsteps in the living room and got up quickly. She stood in her bedroom doorway and saw a man about two feet from her. She asked him who he was. She asked him a second time. Instead of answering, he said, “‘You know me?’” She told him she did not and he said, “‘Good.’” She told him he had to leave the house and she tried to escort him down the hallway. But he pushed her down and went into the kitchen. She got up quickly and told him to get out. He pulled a knife from a drawer. Irma could not find the phone, so she ran out of the house to the neighbor’s house, where she knocked loudly and repeatedly until the neighbor opened the door. Irma called 911 on her neighbor’s telephone.

After Irma ran out of the house, defendant went into Amber’s bedroom. Amber woke up and saw someone standing over her bed. Defendant was right beside her. She was sleepy and at first she thought he might be her sister’s friend. But then defendant got on top of her and started kissing her neck. She got up and ran into Irma’s room. She saw that Irma was gone, so she shut the door and hid behind it. Defendant opened the door and when he found her, he slapped her. Amber ran to another bedroom and locked the door. She tried to jump out of the window, but defendant kicked the door open before she had the chance. Defendant put the knife to Amber’s neck and told her to take off her shorts. She refused. He told her to take off her panties or he would kill her. She held the waistband of her gym shorts, telling him “‘No.’” Defendant used his free hand to pull down her pants. He pushed her onto the bed and was about to get on top of her. He told her to turn over, so she turned onto her stomach. She heard him unzip his pants. He got on top of her and inserted his fingers inside her vagina. He moved them around for a few seconds. Amber thought that because she was a virgin, defendant was probably trying to “‘loosen [her] up’” so it would be easier for him to insert his penis. He took his fingers out and got on top of her. He kissed her neck and sucked on her ear. He rubbed against her, moving up and down on top of her, trying to insert his penis into her vagina, for about 30 seconds to one minute. She felt his skin against her buttocks. Amber believed he was trying to rape her. She tried to move her body to keep defendant from penetrating her. Defendant got up and picked up a towel from the floor and wiped off Amber’s vaginal area and buttocks. Amber did not know whether defendant had ejaculated. He walked out of the room, but returned and very quickly turned the light on and off, as if he was looking for something on the floor. He walked out again. Amber waited for a few seconds, then went down the hall. She saw defendant leaving through the kitchen’s sliding glass door. Amber went out the front door and saw Irma standing in front of the neighbor’s house.

The house had been dark and Amber had not seen defendant clearly. She had been able to determine only that he was African American. She did not recognize him in court.

Officers Gonzales and Cervantes were dispatched to the house at about 2:30 a.m. Two other units were already there. Gonzales contacted Irma, who told him the following account: Irma woke up when she heard noises in the kitchen. She got out of bed and saw an African American male inside the house. She asked him what he was doing in the house, but he would not respond. When he turned his back to her as he was rummaging through her drawers, she ran out of the house. She tried to wake a neighbor, but could not, so she returned to the house. Defendant told her, “‘Get out of here, bitch, you don’t know who I am.’” He pushed her and she again ran out of the house to the neighbor’s. She finally woke the neighbor and called the police.

Irma told Gonzales that the perpetrator was African American, in his mid-twenties, about six feet tall, 180 pounds, and wearing a hooded sweater and dark baggy jeans. She said she could identify him if she saw him again.

Cervantes spoke with Amber. She was crying and visibly upset. Amber told Cervantes the following account: She had been asleep in her room when she awoke and saw a man by her bed. She ran from the room into two other rooms, but found no one. Defendant followed her with a large kitchen knife. He grabbed her, called her a bitch, and slapped her. She ran back into her sister’s room and locked the door. Before she could get out the window, defendant kicked the door open. He approached her with the knife and told her to remove her panties or he would kill her. She was afraid he would kill her if she did not comply. He told her to lie down and he put his fingers in her vagina. She felt extreme pain. She thought he was trying to “loosen her up” so he could insert his penis inside her. She heard defendant unzip his pants and she felt his penis around her vaginal area. He tried to insert his penis into her vagina while he was kissing her neck and face. She was screaming and moving around frantically, which apparently prevented defendant from inserting his penis completely, although he did insert it partly. He placed his penis at her vaginal opening several times. Amber did not know if he had ejaculated. For unknown reasons, he stopped, wiped her down, and briskly walked out of the room.

Amber got up and saw defendant unlock and leave through the sliding glass door in the kitchen. When he was gone, she locked the sliding glass door, then noticed that the kitchen window over the sink was open. She locked it and walked out the front door.

Amber described defendant as African American, 20 to 25 years old, about six feet tall, clean shaven, and wearing a dark hooded sweatshirt and dark pants. He wore his hood during the entire incident.

Amber was taken to the hospital to undergo a sexual assault forensic examination. The examiner collected a swab from Amber’s ear because she stated defendant had licked and kissed her ear, and the examiner collected two external vaginal swabs. The examiner observed an external linear abrasion to the vaginal area, consistent with scratching by fingers. The examiner did not take internal vaginal swabs because Amber said there had been no penile penetration and she did not mention that defendant had tried to insert his penis into her vagina. Amber refused to allow the examiner to use a speculum.

The police processed the house for evidence. Identification Technician Sinor collected panties, a bra, a bandana, a blanket, a comforter, a pillowcase, and a couple of towels that were on the floor. He took photographs of the scene, including a torn window screen. He dusted for fingerprints at the sliding glass door and some windows. He was able to obtain four prints from the sliding glass door and one print from the screen.

Officer Unruh responded to the scene at about 11:00 a.m. the next day. Amber and her family had found some possible additional evidence. In particular, there were two windows they thought had not been fingerprinted. Unruh obtained several fingerprints from the outside of a bedroom window.

Detective Kobashi came to the house on the following day. Amber pointed out a sock in the bedroom that she did not recognize, so the police collected the sock. Both Irma and Amber told Kobashi they could not identify the perpetrator because of the clothing he was wearing.

Identification Technician Pombo compared all the fingerprints lifted from the house to defendant’s fingerprints. Pombo determined that a print lifted from an exterior bedroom window was a match to defendant’s left ring finger. The prints were identical at a minimum of 14 points. However, the prints found on the sliding glass door matched Amber’s sister.

Cervantes believed the kitchen window might have been defendant’s point of entry. There was a stack of chairs outside. The investigation revealed there were several locations in the residence, including other windows, that defendant apparently had tampered with.

Criminalist Strohl tested Amber’s vaginal swabs and found no semen on them. No semen was detected on the sock. Strohl did not receive a towel for testing.

Criminalist Cavanaugh analyzed the swab taken from Amber’s ear. He tested for 13 DNA loci. The swab contained a mixed profile of two DNA sources. The major (more intense) profile was male and the minor (less intense) profile was female. The female DNA profile matched Amber’s control DNA sample.

Senior Criminalist Tugado tested a sample of defendant’s blood for the same 13 DNA loci. She compared those results to the results of the swab from Amber’s ear and found that the male profile of the DNA on that swab “matched” the profile of defendant’s DNA. Tugado calculated that the probability that a random, unrelated person would possess this DNA profile was about 1 in 68 quadrillion for African Americans, 1 in 4.4 quadrillion for Caucasians, and 1 in 28 quadrillion for Hispanics. Tugado concluded it was strong evidence that defendant was the source of the male DNA profile on the swab from Amber’s ear.

A thousand billion is a trillion, and a thousand trillion is a quadrillion.

DISCUSSION

I. Lesser Included Offense

Defendant contends he should not have been convicted of attempted rape (count 1) because it is a lesser included offense of assault with intent to commit rape (count 3). The People acknowledge the lesser included aspect of these offenses, and concede that a defendant may not be convicted of both an offense and a lesser included offense when they are predicated on the same act, but they maintain that defendant was convicted of three separate acts and therefore was properly convicted of three separate crimes (People v. Greer (1947) 30 Cal.2d 589, 600, overruled on other grounds in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6). We agree with the People.

“‘[A]n assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.] “An ‘assault’ with intent to commit a crime necessarily embraces an ‘attempt’ to commit said crime....” [Citation.]’” (People v. Ghent (1987) 43 Cal.3d 739, 757; see also People v. Holt (1997)15 Cal.4th 619, 674 [assault with intent to commit rape is a form of attempted rape].)

California law generally allows a person to be convicted of multiple crimes arising from a single act or course of conduct. (§ 954; People v. Montoya (2004) 33 Cal.4th 1031, 1034 [in California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged].) “But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]” (Ibid.; People v. Reed (2006) 38 Cal.4th 1224, 1227.) Therefore, a defendant cannot be convicted of both assault with intent to commit rape and attempted rape arising from the same conduct. However, when the multiple convictions are for crimes arising from separate acts, there is no violation of section 954. (See People v. Greer, supra, 30 Cal.2d at p. 600.)

Here, defendant committed three separate acts, as the prosecutor explained to the jury. First, defendant first got on top of Amber and kissed her neck. He then chased her through the house with a knife, grabbed her, slapped her, held the knife to her neck, forced her to undress, pushed her onto her back on the bed, and started to get on top of her. This conduct constituted assault with intent to commit rape (count 3). Next, defendant apparently made a new plan and told Amber to turn over. He inserted his fingers into her vagina. This conduct constituted sexual penetration by force (count 2). Lastly, defendant got on top of Amber, rubbed against her, and repeatedly attempted to insert his penis into her vagina. This conduct constituted attempted rape (count 1). The three acts were separate; the assault was an act distinct from the attempted rape and separated by the digital penetration. Defendant was therefore properly convicted of all three counts.

II. Full, Consecutive Sentences

Defendant also argues the trial court improperly imposed a full consecutive sentence of eight years for attempted rape (count 1). He maintains the court should have imposed one-third the middle term of three years, pursuant to section 1170.1, subdivision (a). Defendant acknowledges that section 667.6 provides an alternate sentencing scheme for sex offenses, but he asserts that attempted rape is not among the enumerated sex offenses in section 667.6, subdivision (e), and therefore “is not one of the offenses specified in section 667.6 for which ‘a full, separate, and consecutive term’ of imprisonment is either authorized or required.”

The People fail to address this issue at all.

Defendant is correct that courts have held attempt offenses are not considered within the ambit of section 667.6. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1490 [trial court improperly imposed a full-term, consecutive sentence pursuant to section 667.6, subdivision (c) for attempted rape; attempted crimes are not included within ambit of statute]; People v. Le (1984) 154 Cal.App.3d 1, 10-11 [because attempted crimes are considered to be separate and distinct, they are not automatically included in the list of sexual offenses to which section 667.6, subdivision (c) applies; furthermore, if the Legislature had intended to include attempts, it would have specifically stated the provision applies to the commission or attempted commission of specific crimes as it did in other enhancement provisions].) We will vacate the sentence on count 1 and remand for resentencing on this count in accordance with section 1170.1.

DISPOSITION

The sentence for attempted rape (count 1) is vacated. The matter is remanded for resentencing pursuant to section 1170.1 on that count. The judgment is otherwise affirmed in all other respects.

WE CONCUR: Levy, Acting P.J., Cornell, J.


Summaries of

People v. Gillespie

California Court of Appeals, Fifth District
Jul 22, 2008
No. F051927 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Gillespie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JABBAR GILLESPIE, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jul 22, 2008

Citations

No. F051927 (Cal. Ct. App. Jul. 22, 2008)