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People v. Rayford

California Court of Appeals, Fourth District, Second Division
Mar 27, 2008
No. E040856 (Cal. Ct. App. Mar. 27, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DAVID RAYFORD, Defendant and Appellant. E040856 California Court of Appeal, Fourth District, Second Division March 27, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. Super. Ct. No. RIF121061 Richard Todd Fields, Judge.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

A jury convicted defendant of rape (Pen. Code, § 261, subd. (a)(2)) and possession of a gun by an ex-felon (§ 12021, subd. (a)(1)). In bifurcated proceedings, defendant admitted having suffered a prior serious felony conviction (§ 667, subd. (a)) and a strike prior (§ 667, subds. (c) & (e)(1)). He was sentenced to prison for 18 years 4 months and appeals contending evidence of a prior sexual battery should not have been admitted and the matter must be remanded for resentencing. We reject his contentions and affirm, while directing the trial court to make an addition to the abstract of judgment.

All further references are to the Penal Code unless otherwise indicated.

The facts of this case will be discussed as they are relevant to the issues addressed.

Issues and Discussion

1. Admission of Evidence of Defendant’s Prior Sexual Battery

Before trial began, the People moved, under Evidence Code sections 1101, subdivision (b) and 1108 to have the trial court admit evidence that defendant had committed a prior sexual battery. According to the People’s moving papers, in September 2003, the victim of the sexual battery was at a party when defendant joined it. Defendant asked the victim for sex and she refused. When defendant told the victim he’d get someone else to have sex with him, she reiterated that she did not intend to have sex with him. Defendant then sat on top of the victim and said she was going to “give [him] some.” He touched her breasts over her clothes against her will and pulled her neck toward him. The victim told him to get off her. Later, as the victim stood near her car, defendant approached her and threatened to “slap the shit” out of her. He then hit her on the right side of her face.

Defendant filed no moving papers in opposition to the People’s.

In their trial brief, the People set forth the facts concerning the instant crime as follows: The victim had met defendant two weeks before the incident and they had exchanged phone numbers and talked several times over the phone. On December 26, 2004, defendant called the victim and asked her to come over to his house. She said she would if she could bring a friend. Defendant sent someone to pick her up, and the defendant and the victim picked up her friend and returned to defendant’s house. There, defendant and one of his brothers drank and smoked marijuana. Defendant and the victim went into his bedroom and sat on the bed with no one else in the room. Defendant started to touch her leg and tried to kiss her. She declined his advances and he became agitated. When he tried to touch her thigh a second time, she said, “I’m not like that” and she pushed his hand away. She told the defendant many times to stop. He ignored her. He grabbed her by the waist with both hands. The more she resisted, the tighter he held her. He then held her waist by one hand as he used the other to pull her pants and underwear down to her ankles. When the victim tried to get defendant’s hands off her, he slapped her on the right side of her face. He told her to “stop trippin, fuck me, give me the pussy.” He raised his left hand and said, “I’m going to hit you again, stop, calm down, let me fuck you.” He pulled the front of her pants down and raped her. He put his hand over her mouth when she screamed and held his other hand as though ready to hit her. The assault lasted 5 to 10 minutes. Loud stereo music in the living room prevented those elsewhere in the house from hearing what was going on inside the bedroom. Defendant told the victim not to tell anyone and he had his brother take her and her friend home. As soon as she was alone with her friend, she told the latter what had happened and the friend called another friend and eventually the crime was reported to police.

The trial court ruled evidence of the prior was admissible under Evidence Code section 1108. Therefore, defendant’s lengthy contention that the trial court abused its discretion in admitting the evidence under Evidence Code section 1101, subdivision (b) need not be addressed.

In making its ruling, the trial court never referred to Evidence Code section 1101, subdivision (b). Additionally, during the testimony of the victim of the sexual battery, the trial court said to the prosecutor, “I think you’re outside the scope of 1108 at th[is] point.” The jury was instructed that it could use evidence of the prior sexual battery only as possible propensity evidence, and “not . . . for any other purpose.”

Evidence Code section 1108 provides in pertinent part, “Evidence of another sexual offense by defendant; disclosure; construction of section [¶] (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”

Evidence Code section 1101, subdivision (b) provides, “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”

Defendant states that “the evidence properly was admitted under section 1108.” However, he goes on to assert that the trial court abused its discretion by failing to exclude it under Evidence Code section 352. In deciding whether to admit Evidence Code section 1108 evidence, “trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as . . . excluding irrelevant though inflammatory details surrounding the offense.” (People v. Abilez (2007) 41 Cal.4th 472, 502 quoting People v. Falsetta (1999) 21 Cal.4th 472, 502, italics omitted.)

Defendant contends that a relevant consideration is whether the uncharged act resulted in a criminal conviction, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, citing People v. Ewolt (1994) 7Cal.4th 380, 405. Ewolt was an Evidence Code section 1101, subdivision (b), not an Evidence Code section 1108, case. Moreover, this point was never argued to the trial judge when it was deciding whether to admit the evidence, so it had no opportunity to consider it. Ultimately, the factor cut both ways, i.e., the People suggested that defendant should not “get away” with committing a sexual offense as he had before and defendant argued that his acquittal of misdemeanor sexual battery in the prior case meant that he did not commit that offense and, therefore, there was no propensity evidence. Certainly, we cannot criticize the trial court for not utilizing a factor which had never been presented to it.

Although defendant informed the trial court that he had been acquitted of sexual battery in the prior case, he argued that this proved that the victim of that offense was not believable, not that the jury would attempt, in this case, to seek revenge for the prior offense.

Defendant also asserts that another factor, this one actually considered by the trial court, weighed in favor of excluding the evidence. This was whether the evidence of the uncharged crime was more inflammatory than the evidence of the current offense. In addressing this issue, defendant refers to a number of facts that were not before the trial court at the time it made its ruling. Regardless, defendant cannot persuasively argue that the facts of the sexual battery were in any way more inflammatory that those of the instant case, and the trial court correctly so concluded.

Those facts are that “there was nothing to suggest [that the sexual battery victim] wanted anything from [defendant] (like money), or was upset with him because he reneged on a promise, so that her accusation might seem like mere revenge . . . .” Defendant thus implies that this victim falsely accused defendant of raping her because she wanted money from him and was upset with him because he reneged on a promise. Defendant also asserts that he committed the assault on the sexual battery victim in front of other people, indicating his complete lack of respect for her, that he told her not to tell the police about it and she called the police immediately afterwards, indicating that her story was true. None of these facts were before the trial court when it made its ruling. Defendant had an opportunity to present them and did not.

2. Sentencing

In announcing its tentative sentence, the trial court said it would impose the mid term for the rape, doubled, due to defendant’s admission of being previously convicted of a strike, and one-third the mid term for the gun possession, also doubled for the same reason. The trial court explained that it was running the term for the gun possession consecutive to the term for the rape because the former “manifest[ed] a different intent, a different objective . . . . [¶] . . . [¶] [I clearly find that] the crimes and their objectives were predominately independent of each other. [¶] There’s one reason ex-felons are not supposed to have guns. The rape has nothing to do with that. It’s completely an independent crime, and independent objective. [¶] Also, . . . [t]hey were clearly committed at separate times and places. We all heard evidence that the defendant was aware of the gun from long ago. [¶] . . . [W]hen he came in the possession of it as an ex-felon, that’s when that crime was committed . . ., many months before this rape took place. [¶] . . . [¶] He knew [the gun] was there, he pulled it down, he showed it to people. . . . It’s not like happenstance.” The court also said it would impose a five year term for defendant’s serious prior conviction. After defense counsel attempted to persuade the trial court that defendant was not so culpable with regard to the gun possession, he submitted the matter and the trial court imposed the terms it had tentatively chosen for the reasons already stated.

The trial court made this observation in response to defense counsel’s assertion that the court should run the sentence for the gun possession concurrent with the rape because defendant came into possession of the gun merely by moving into his deceased father’s bedroom, where his father had kept the gun, therefore, his guilt of this offense was “mitigated.”

Defendant contends, in his reply brief, that the fact that defense counsel at sentencing asked for a concurrent sentence for the gun possession and the trial court denied the request “because of precedential case law, and not because it indicated it felt a lengthier term was more appropriate” somehow compels the conclusion that the trial court was unaware of its discretion to dismiss the strike in sentencing defendant for that offense. The remarks by defense counsel and the sentencing court about the extent of defendant’s responsibility for possessing the gun had nothing whatsoever to do with whether the court was aware of the discretion People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and People v. Garcia (1999) 20 Cal.4th 490 (Garcia) declared it had.

Defendant here contends that the sentencing court “appeared unaware” of its ability, under Garcia, supra, 20 Cal.4th at pages 490, 492-493, 501, 503-504 to dismiss his strike in reference only to the gun possession, thereby obviating the need to double the sentence for that offense. Without citing to a specific page of the opinion, defendant asserts that Romero, supra, 13 Cal.4th 497 holds that “in the absence of any express statement by a trial court as to whether or not it would have stricken allegations of a prior conviction had it known it retained such power, it is not reasonable to presume the trial court was aware of its discretion pursuant to Penal Code section 1385, subdivision (a).” Romero held, for the first time, that a sentencing court retained discretion on its own motion to dismiss a strike. (Id. at pp. 504, 529-530.) As part of its declaration that this holding was fully retroactive, the high court said, “A defendant serving a sentence under the Three Strikes Law [citation] imposed by a court that misunderstood the scope of its discretion to [dismiss] prior felony conviction allegations in furtherance of justice pursuant to [Penal Code] section 1385 [, subdivision] (a), may raise the issue on appeal, or, if relief on appeal is no longer available, may file a petition for habeas corpus [in the sentencing court] to secure reconsideration of the sentence. . . . [Citation.] Such a petition may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to [dismiss] prior felony conviction allegations without the concurrence of the prosecuting attorney and did not [dismiss] the allegations, or if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to [dismiss] the allegations. [Citation.]” (Id. at p. 530, fn. 13.) This footnote was construed in People v. Fuhrman (1997) 16 Cal.4th 930, 944, to mean “where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion as clarified in Romero. [Citation.]” [Italics original.] Fuhrman went on to hold that in cases where sentencing preceeded Romero “the appropriate course, in a ‘silent record’ case, is for an appellate court to deny the request for remand, without prejudice to the defendant’s seeking relief in a petition for writ of habeas corpus.” (Fuhrman, supra, at p. 945.) The habeas corpus route was left open only because the law had been unsettled when sentences had been imposed before Romero was decided, which is not the case here. Because the sentencing here took place ten years after Romero was decided and seven years after Garcia made Romero’s holding applicable to discrete portions of the total sentence, it is appropriate to apply “the ordinary principles of appellate review [which] require that an appellate court presume the trial court properly understood that it retained discretion to [dismiss] a prior felony conviction allegation.” (Fuhrman, supra, at p. 945.)

In Romero, the trial court had exercised its discretion to dismiss the defendant’s strikes, therefore, the high court was not called upon to make any declaration about the meaning of a silent record on the matter.

Disposition

The trial court is directed to amend the abstract of judgment to show that defendant was sentenced according to Penal Code section 667, subdivisions (c) & (e)(1). In all other respects, the judgment is affirmed.

We concur: HOLLENHORTST, J., GAUT, J.


Summaries of

People v. Rayford

California Court of Appeals, Fourth District, Second Division
Mar 27, 2008
No. E040856 (Cal. Ct. App. Mar. 27, 2008)
Case details for

People v. Rayford

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID RAYFORD, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 27, 2008

Citations

No. E040856 (Cal. Ct. App. Mar. 27, 2008)