Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. TA106983 Arthur M. Lew, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Micah Johnell Parker was convicted by jury of forcible rape (Pen. Code, § 261, subd. (a)(2) - count 1), false imprisonment by violence (§ 236 - count 2), assault with intent to commit a felony (§ 220, subd. (a) - count 3), criminal threats (§ 422 - count 4) and sexual battery by restraint (§ 243.4, subd. (a) - count 5).
All further statutory references are to the Penal Code.
The trial court imposed an aggregate term of 12 years 4 months in state prison, consisting of the mid-term of 6 years as to count 1; 8 months (one-third the mid-term) as to count 2; the mid-term of 4 years as to count 3; 8 months (one-third the mid-term) as to count 4; and one year (one-third the mid-term) as to count 5. Appellant contends that the trial court erred by imposing consecutive sentences on counts 1 and 3 and that it erred by instructing the jury with CALCRIM No. 1190, providing that the testimony of a complaining witness can support a conviction for a sexual assault crime. We affirm.
FACTS
Prosecution Evidence
The victim, was age 16 at the time of the offense. In 2007, she moved to Compton and met appellant. He wanted to have a dating relationship, but she did not. He kissed her once on the mouth. The victim eventually told appellant that she did not want to be his girlfriend, and they stopped spending time together.
The victim was also acquainted with co-defendant Marquese Wooley. She met him in 2007, and they spoke on the phone. He kissed her the first time they met, but had no further physical contact. The victim subsequently discovered that appellant and Wooley knew each other. She later broke off communication with both men.
Although Wooley was a co-defendant at trial, he is not a party to this appeal.
On February 21, 2008, the victim was walking to the Metro station after school. She saw appellant and Wooley at the Imperial station. They wanted her to "hang out" with them, and she thought she should. She was used to "kicking it with guys" since she grew up as a tomboy. All three returned to the train and got off at the Compton station. They walked to a garage that was attached to a house. One of the men opened a heavy door. It seemed like it was broken because it only opened sideways. They went inside and it was very dark, but there was light coming through the corners of the door. They sat on a couch, with the victim seated at one end, next to Wooley. Appellant sat at the far end.
Wooley picked the victim up and placed her between both men. Appellant wanted her to lie on top of him, but she refused. He threatened her, saying that if she did not do what he said, he would tie her up. Appellant directed Wooley to hold the victim down because she kept moving. She objected, but Wooley sat her on his lap, and held her in a bear hug from behind, so she could not move. When she struggled, Wooley squeezed her breasts. Appellant told her to "stop playing around, " and tied her ankles together with a shoelace.
Wooley told the victim to "lay back on top of [him]" or he would tie her hands. She tried to untie her feet, but was unable to. Wooley eventually untied her ankles and removed her shoes. He then began pulling at her pants, and finally pulled them down. She was wearing boxer shorts. Wooley stopped and began talking to appellant. The victim could not hear what they were saying, but appellant told her that Wooley was going to the store. He left the garage, and did not return.
Appellant began pacing back and forth. He told the victim that he had "been trying to get with [her] since '07, and all [she] did was play around." He said that, if she would not "be his girlfriend, " he would leave her in the garage. She tried to leave, but could not lift the door because it was too heavy. She knew that appellant was the only person that could open the door and that no one would have heard her if she screamed. Appellant made her lie on the couch and kiss him and then he put his hand down her boxer shorts. The victim continued to struggle and he told her to stop. Appellant threatened to "get some other guys to do worse" and reached for his cell phone. The victim was terrified. She agreed to cooperate because she was scared and did not know what to do. She thought if she did what appellant said, the situation might not get worse.
The victim began to cry and appellant pulled down her boxer shorts and underwear. He took out his penis and put her hand on it, and began moving her hand. The victim was crying and kept saying that she "didn't want to do it." He took his hand off her, and put his penis in her vagina. She remembers screaming from the pain. The victim had never engaged in sexual intercourse. At some point appellant asked her if she wanted him to stop, and she said yes. He stopped and returned her belongings and no longer seemed aggressive. Appellant gave the victim his cell phone and she called her friend Yadira. She spoke to Yadira's mother and asked her to pick her up at the Metro station. The victim then left the garage with appellant.
As they walked to the Metro station, appellant grabbed the victim's hand. She was crying and kept asking why he had done it. They got on the train together. Appellant got off at his stop, and she continued on to her stop, where Yadira's mother was waiting. She later told Yadira that she had been raped. The police were called, and they took the victim to the hospital where she had a sexual assault exam. The forensic nurse who examined the victim testified that she had injuries to her genitalia consistent with a sexual assault.
Defense Evidence
Wooley testified that he was in the garage for about fifteen to twenty minutes. Appellant told the victim he could tie her ankles together as a joke, and she agreed. Wooley later untied the shoelace. At one point, Wooley tugged on her pants, but did not pull them down. He eventually left the garage to go to the store. He bought a soda for appellant, and returned to give it to him. Wooley could see the victim seated on the couch, and she was not in any kind of distress. He left the garage.
In a taped interview after his arrest, Wooley told a detective that he left the garage because it looked like appellant "'was doing really too much.'" Wooley said that the victim looked like she was getting scared so he told appellant to "'[j]ust leave it alone. Let it go.'" At trial, Wooley testified that his statement "was all lies, " and his trial testimony, that the victim was unafraid, was the truth.
Appellant testified that, on the day of the offense, he and Wooley saw the victim at the Metro station. All three decided to go to his cousin's garage. The victim permitted appellant to tie her ankles, because it was a trick. She was unable to get out of it, so she stood up. She fell forward and Wooley caught her around her hips, and untied the shoelace. After Wooley left the garage, the victim told appellant that she wanted to be with him. She asked him if he had a condom and he said yes. She ripped open the condom, pulled down her pants and put the condom on him. They had consensual sexual intercourse.
DISCUSSION
Consecutive Sentences
Appellant claims the trial court erred by imposing consecutive sentences for his convictions on count 1 (forcible rape (§ 261, subd. (a)(2)) and count 3 (assault with intent to commit a felony (§ 220, subd. (a)). He asserts that there was insufficient evidence that the acts were committed on separate occasions or after he had an opportunity to reflect, within the meaning of section 667.6, subdivision (d).
Count 1 (forcible rape) and count 3 (assault with intent to commit a specified sexual offense) are both enumerated sexual assault crimes under section 667.6, subdivision (e)(1) & (9). Although the information did not indicate what acts constituted the offense in count 3, the prosecutor identified count 3 at trial as "assault with the intent to commit rape. This count refers to when [the victim] gets tied up."
Section 667.6, subdivision (d) provides in part, "A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Italics added.)
A finding of separate occasions does not require a break between the offenses or a change in physical location. (People v. Jones (2001) 25 Cal.4th 98, 104-105; People v. Garza (2003) 107 Cal.App.4th 1081, 1091-1092; People v. Plaza (1995) 41 Cal.App.4th 377, 385.) Once the trial court finds that a defendant has committed a sex crime on separate occasions, reversal is required "only if no reasonable trier of fact could have decided [that] the defendant had a reasonable opportunity for reflection" before resuming his sexually assaultive behavior. (Garza, at p. 1092.)
At sentencing, the trial court considered the statement made by Wooley to the police concerning his conversation with appellant, and the passage of time between the two acts. It concluded that appellant had time to reflect upon his behavior and nevertheless proceeded to commit an additional offense. The court found that the crimes were committed against a single victim on separate occasions, within the meaning of section 667.6, subdivision (d). We agree.
The crimes were independent of one another. Appellant threatened to restrain the victim if she did not comply with his sexual demands. She resisted, and appellant tied her ankles together while she struggled. After Wooley untied the victim, he and appellant spoke privately. Wooley later told a detective that she was afraid. He said appellant "was doing really too much" and that he had advised appellant to "'[j]ust leave it alone.'" This conversation gave appellant the time and opportunity to reflect upon his actions. (People v. Garza, supra, 107 Cal.App.4th at pp. 1092-1093 [time to reflect where various types of sex offenses performed in car]; People v. Plaza, supra, 41 Cal.App.4th at p. 384 [sex offenses committed in different rooms of victim's apartment]; People v. Corona (1988) 206 Cal.App.3d 13, 17-18 [defendant left car for several minutes between commission of sex offenses].)
Despite his opportunity for reflection, appellant nevertheless resumed his sexually assaultive behavior. After Wooley left the garage, appellant threatened to leave the victim behind if she did not cooperate. He coerced her into lying on the couch with him, and then raped her. The act of tying the victim's ankles together was entirely separate from the crime of rape. Substantial evidence supports the trial court's finding that the offenses were committed on separate occasions. Imposition of consecutive sentences was proper.
Instructional Error
Appellant contends the trial court erred by instructing the jury with CALCRIM No. 1190, which provides, "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." He contends that the instruction "impermissibly bolstered [the victim's] credibility" and lowered the burden of proof, thereby violating his rights to a jury trial, to present a defense, to confront witnesses and to due process.
Defense counsel had requested that the court modify CALCRIM No. 1190 to insert the word "proven" before "testimony." The modified instruction would have read, "Conviction of a sexual assault crime may be based on the proven testimony of a complaining witness alone." He reasoned that this would emphasize to the jury that it must consider the credibility of the victim's testimony. The trial court rejected the request, and gave the unmodified instruction. The court also instructed the jury with CALCRIM No. 301, which reads, "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."
We reject appellant's contention because it is contrary to established law. Our Supreme Court has held that it is proper to instruct with CALJIC No. 10.60 (predecessor to CALCRIM No. 1190) and CALJIC No. 2.27 (predecessor to CALCRIM No. 301) in cases involving sex offenses. (People v. Gammage (1992) 2 Cal.4th 693, 702.) Appellant states that he has raised the issue to preserve it for appeal, so he may later request the Supreme Court's reconsideration of its decision in Gammage. We are bound by the decisions of the Supreme Court and therefore reject his claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.