Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217390 Amalia L. Meza, Judge.
HALLER, J.
A jury convicted Andre Brian Meade of rape (Pen. Code, § 261, subd. (a)(2) (count 1)); forcible oral copulation (§ 288a, subd. (c)(2) (count 2)); forcible sexual penetration by a foreign object (§ 289, subd. (a)(2) (count 3)); and kidnapping for the purpose of committing rape (§ 209, subd. (b)(1) (count 4)). The jury also found true "one strike" law allegations as to counts 1 through 3 that Meade kidnapped the victim within the meaning of section 667.61, subdivisions (b), (c), (d)(2), and (e). Meade admitted he had a prior strike conviction for attempted kidnapping in 2005 (§ 207, subd. (a)). (§§ 667, subd. (b)-(i), 1170.12.)
Statutory references are to the Penal Code.
This was Meade's second trial for the crimes and allegations. A mistrial was declared when the jury was unable to reach a verdict in the first trial.
The trial court sentenced Meade to prison for an indeterminate term of 100 years to life: three terms of 25 years to life under the one strike law (§ 667.61, subd. (d)(2)) for counts 1 through 3, each doubled because of the prior strike conviction. The terms imposed for counts 1 and 2 were ordered to be served consecutively, and the term for count 3 was ordered to be served concurrently. The court imposed an indeterminate life term for count 4, but ordered the sentence on that count to be stayed under section 654.
Meade appeals. We affirm the judgment.
FACTS
Prosecution's Case
In 2008, the victim was living in a hostel in San Diego with her friend Katrina Paul. She was studying to complete licensing requirements to teach English in her native country of Germany.
On October 10, 2009, the victim and Katrina went with three young German men to the Red Circle bar in downtown San Diego around midnight. The victim and Katrina met the men, Steffen Weng, Nicolai Coerper, and Ali Farhati, the day before. The group had been drinking that night. Before arriving at the bar, the victim drank two "vodka energy" drinks (vodka mixed with Red Bull). While at the bar she continued to drink vodka energy drinks, as well as beer.
The victim and Farhati were attracted to each other. They danced and kissed each other often. Meade was also at the bar with two other "really tall... African American guys, " including San Diego Chargers football player Tim Dobbins. Meade was staring at the victim and told Dobbins repeatedly that he wanted to "get a girl."
Meade approached the victim and offered her a gin and tonic drink, which she accepted. At the time she accepted the drink, she was already feeling mildly tipsy. She drank about half the drink from Meade, and then "felt completely different than usual... [and] very peculiar." She told Farhati that Meade had given her the drink. He became angry and drank the other half of it. Farhati then felt dizzy and "weird."
Around 2:00 a.m. the victim and her friends began leaving the bar because it was closing. When the victim got outside, she could not walk anymore, and had to lean up against a fence. She felt nauseous and afraid, and had never felt that way from drinking alcohol before. Farhati was talking with others, but not her. He seemed upset with her.
While the victim was waiting outside, Meade approached to tell her goodbye. The victim kissed him on the cheek as is customarily done in Germany. She lost track of her friends and thought they might have gone to the parking structure where they had parked, so she started walking in that direction.
Meade then approached the victim "out of nowhere" and told her he knew where her friends were. She was having trouble walking, so he supported her as they walked towards the parking structure. Meade then "almost carried" the victim into his car because she could not support herself. Meade told her he was taking her to find her friends.
While driving, the victim asked repeatedly where her friends were. Meade told her that he was driving to another party where they were located. The victim then told Meade in an increasingly loud voice that she wanted to get out of the car. He ignored her until she started screaming that she wanted out of the car. Meade then shouted at her and told her he would kill her if she was not quiet. He also said if she kept quiet "everything would be over fast."
After driving about 20 or 30 minutes, Meade stopped the car. He then took the victim into a house or apartment. She was not completely conscious. The next thing she remembered was being naked on a bed, with Meade, also naked, on top of her. She did not know how her clothes came off. He told her to take his penis into her mouth or he would kill her, and she complied. After a couple of minutes, he laid down next to her and placed his fingers into her vagina. The victim protested, and Meade told her that if she did what he told her, it would "all be over soon."
The victim initially told officers that Meade pulled the car over at one point during the drive and blindfolded her. She also told a nurse she was blindfolded. Later, she told a detective that Meade had in fact not blindfolded her. She explained the discrepancy by saying that she realizes now she was "probably... just falling unconscious."
Meade was unable to maintain an erection so he told the victim to put her hand on his penis, and she complied. He told her to act like she liked it because she was crying, which was not turning him on. After achieving an erection, he then placed his penis into the victim's vagina. He lost an erection and had the victim place her hand on his penis until he was able to achieve an erection again. He then placed his penis in her vagina again. The entire time the victim was frightened that Meade would kill her. The victim never said she wanted to go home with Meade, or that she wanted to have sex with him.
Meade then led the victim into a bathroom, put her in a shower, put gloves on, and then "washed out [her] vagina." He told the victim that he made a copy of her passport and had taken her credit card. Later, the victim discovered that a piece of paper affixed to her passport that had her temporary address was missing. Before leaving the residence, Meade gave the victim back her dress, but not her bra or underwear. He told her not to look at his face.
When they got back into the car and while driving, Meade told the victim that he had all her information and would kill her if she reported the incident to police. He told her he was thinking of killing her and throwing her body out on the freeway. The victim asked him why he had chosen her, and he replied "Because you're blonde and because you're not from the USA and because you were drunk."
While the victim was gone, her friends searched for her. They left a note at the hostel, and then went back to the Red Circle bar and continued to search for her for about two hours. Farhati passed out in the car and did not wake up until later, when he was at a hospital. He was unconscious the entire time the group was searching for the victim. He had never passed out from drinking before.
At about 4:30 a.m. or 5:00 a.m. Meade dropped the victim off on a "dark side street" near the hostel. The victim's friends saw her as she approached the hostel front desk. She was "trembling and crying, " and was "totally messy" and holding onto her dress. Her hair was wet and her eyes were red from crying. She was no longer wearing a bra, and she lifted her dress to show Katrina that she was not wearing underwear. She told Katrina she had been raped. Weng called the police.
At about 8:30 a.m. on October 11, a nurse conducted a sexual assault response team (SART) examination of the victim. A vaginal swab taken from the victim matched Meade's DNA. The nurse found small lacerations and abrasions around her vagina, and redness on her cervix, but could not tell whether either was caused by a consensual or forced act. The victim had a blood alcohol content of.05 percent. No drugs were detected in her system, including various "date rape drugs." The nurse indicated that date rape drugs are hard to test for because they leave the system rapidly. She also testified that date rape drugs can make someone feel sleepy, have an amnesia effect, and can make the recipient "maybe more cooperative with somebody because they'll do just about anything... that you tell them to do...."
A toxicologist also testified that no drugs were found in the victim's urine sample, including no date rape drugs. He testified that many date rape drugs break down very fast.
Defense Case
A forensic alcohol consultant testified for Meade. Extrapolating from the victim's blood alcohol level of.05 percent, which was based on the blood sample taken from her at 9:30 a.m. on October 11, and assuming she drank alcohol from 10:45 p.m. the previous evening and continued to drink until 1:45 a.m., her blood alcohol level at the highest would have been between.14 and.17. At that level, a person would be under the influence of alcohol, and most people would show signs of physical impairment. Some people would be "drunk" and their judgment and inhibitions would be affected.
Christian Prosser worked with Meade at Ashford University as an admissions advisor. They had known each other for about three months. He was at the Red Circle bar with Meade on October 10, 2008. They were separated at one point, but Prosser later found Meade on the patio with the victim and Farhati. Prosser talked with Farhati, who appeared irritated with the victim because she was talking with Meade. Farhati was calling the victim derogatory names, and was also asking where he could find drugs. Prosser did not feel comfortable walking away because he was worried that Farhati would hit the victim or Meade.
Prosser saw Meade and the victim kissing at least two times. When they were leaving, the victim kissed Meade, and it did not look like a "peck" or a "goodbye kiss." Prosser testified that it "[l]ooked like they were into each other" and that the victim was "willing." After they left the bar, Prosser thought Meade went to the club next door, or went to say "hi" to someone. Prosser spoke with Meade on the phone at 2:01 a.m. for a few minutes. At 2:15 a.m. Meade called Prosser and they spoke for about three minutes. He could hear wind, the radio playing, and the victim talking and laughing in the background. Meade told Prosser they were on their way back to Meade's place. Prosser said "[t]here was enough laughing to know that they were having a good time on the way back to [Meade's] place...." Meade called Prosser at about 4:00 a.m. but Prosser was sleeping and the call went into voice mail.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as possible, but not arguable, issues: (1) whether Meade's convictions and allegations were supported by substantial evidence; (2) whether the trail court committed reversible error by refusing to instruct the jury on "actual and reasonable belief in consent" as a defense to the charges in counts 1, 2, and 3; (3) whether the trial court committed reversible error by denying Meade's motion for a new trial and refusing to release juror identification information so that trial counsel could investigate possible juror misconduct; and (4) whether the trial court abused its discretion by refusing to strike Meade's prior strike conviction for the purposes of sentencing.
We granted Meade permission to file a brief on his own behalf. Meade responded by filing a letter that outlined his military service, but presenting no legal issue for review. A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. Meade has been competently represented by counsel on this appeal.
Meade filed a petition for writ of habeas corpus, which we ordered considered with this pending appeal. We deny that petition by separate order in No. D059667.
Our review of the record included viewing a video surveillance tape from the Red Circle bar, which was admitted at trial and relied on significantly by the prosecution.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.