Opinion
G051654
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. TONY LEE THOMPSON, Defendant and Appellant.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on March 14, 2017, be modified as follows: Under the heading "Disposition," the paragraph, which starts on page 12 and continues to page 13, is deleted in its entirety and replacd with the following paragraph:
In accordance with People v. Sanchez, supra, 53 Cal.4th at pages 92-93, our disposition is as follows: (1) the trial court shall hold a hearing on Thompson's Marsden motion concerning his representation by appointed counsel; (2) if the court finds that Thompson has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or Thompson's Marsden
motion is denied, the court shall reinstate the judgment. In the event the judgment is reinstated, the true finding on the enhancement alleged under section 667. 61, subdivisions (a) and (d)(2) is affirmed.
This modification does not effect a change in the judgment.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11NF0268) OPINION Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed in part, reversed in part, and remanded with directions. Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury found Tony Lee Thompson guilty of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of sexual penetration by a foreign object by force (§ 289, subd. (a)). As to both counts, the jury found true four enhancement allegations: (1) Thompson committed a burglary with the intent to commit a sex offense (§ 667.61, subds. (a) & (d)(4)); (2) Thompson kidnapped the victim and the movement of the victim substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the offense (§ 667.61, subds. (a) & (d)(2)); (3) Thompson kidnapped the victim during the commission of the offense (§ 667.61, subds. (b) & (e)(1)); and (4) Thompson committed the offense during a burglary (§ 667.61, subds. (b) & (e)(2)).
Code citations are to the Penal Code.
The trial court sentenced Thompson to a total term of 25 years to life in prison on the forcible rape count and the enhancement alleged under section 667.61, subdivisions (a) and (d)(4). Sentence was imposed and stayed on the sexual penetration count and on all the other enhancement allegations.
Thompson contends the trial court erred by not conducting a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) into his allegations, made at the sentencing hearing, of ineffective assistance of counsel. The Attorney General agrees. We have considered the record and agree with Thompson and the Attorney General that the trial court must conduct a Marsden hearing.
Thompson also contends substantial evidence does not support the true finding on the allegation under section 667.61, subdivision (d)(2) (the (d)(2) allegation) that he kidnapped the victim and the movement substantially increased the risk of harm to the victim over and above the level of risk necessarily inherent in the offense. We conclude substantial evidence supported the true finding.
FACTS
I.
Sexual Assault of Jane Doe
In September 1998, Jane Doe was working as a housekeeper in a family's home in Anaheim Hills. Doe lived and worked in the home during the week and returned to her home on the weekends. Doe's native language is Spanish but she can understand and communicate some in English.
Around noon on September 28, 1998, Doe was mopping the downstairs living room floor when a man whom she had never seen before knocked on the French doors which opened to the backyard. The man, later identified as Thompson, made a gesture to indicate he wanted to use the telephone. Doe thought the man was a painter working on the house or yard and opened the door for him. When Doe opened the door, Thompson said, "telephone." Doe told Thompson she needed to get the telephone and she walked to the kitchen where it was located. He followed her. When Doe reached the telephone, Thompson put his right arm around her mouth and neck and forced her upstairs. As he was taking her upstairs, the family's large dog started barking at him. He grabbed the dog, put it in the first room at the top of the stairs, and closed the door.
Thompson took Doe to another upstairs bedroom and forced her to lie down on the bed. He lifted her skirt, removed her underwear, pulled down his pants and underwear, and got on top of her. He briefly put a pillow over her face. At first, Thompson could not get an erection. He inserted his penis and fingers into her vagina, and both insertions hurt. When Thompson got up from off of Doe, she noticed blood coming from her vagina.
Thompson asked Doe, "where's the money at." She said she did not know. While Doe sat at the foot of the bed, Thompson went to another bedroom and then downstairs.
Thompson left, carrying a stereo, through the front door. He also stole some jewelry. After Thompson left, Doe called the homeowner's mother, who speaks Spanish, and told her what had happened. At about 12:15 p.m., the homeowner received a call from her mother who said her daughter needed to go home. When she arrived home, the police were there talking to Doe.
II.
Police Investigation and Sexual Assault Examination
Anaheim Police Officer William Bird took Doe's statement through another officer who acted as an interpreter. Doe stated the man did not have an erection and was not able to insert his penis in her vagina the first time he tried. He then inserted his finger into her vagina and again attempted to insert his penis, but there was only slight penetration, "if any penetration at all." Bird then took Doe to a hospital where a sexual assault examination was performed by Dr. Darilyn Falcke and nurse Kathleen West.
Dr. Falcke used an ultraviolet light to look for biological fluids. Seminal fluid and amylase, a protein secreted by the salivary glands, will fluoresce under the ultraviolet light. Dr. Falcke noted the ultraviolet light fluorescence on Doe's leg, but she was not able to tell from the light whether the fluoresced area was seminal fluid or amylase. Oral, vaginal, labial, and rectal swabs were taken, as well as swabs from the fluoresced area on Doe's leg. Dr. Falcke examined Doe and noted reddened vaginal tissue, a transection of the hymen with minor bleeding, redness in the posterior fourchette area, "diffusely swollen labial major and minor and hood of clitoris," very dry labia with whitish discharge coating tissue, and three linear tears. Dr. Falcke's findings from the examination were consistent with the history given by Doe. Dr. Falcke made a finding that "different evidence of sexual abuse or sexual abuse is highly suspected." Dr. Falcke could not determine whether Doe's injuries were caused by penetration with a finger or penis.
West obtained a statement from Doe, who communicated without difficulty in English. West asked Doe whether specific sexual acts occurred and checked the corresponding boxes on the sexual assault form based on Doe's responses. The sexual assault form shows that penetration of the vagina by a penis was attempted twice. West marked "[y]es" to penetration of the vagina by fingers and "[n]o" to penetration by a foreign object.
About a week later, on October 7, 1998, Anaheim Police Sergeant Frank Pinela interviewed Doe in Spanish. Doe stated that once Thompson took her to the bedroom, he had told her to lie on the bed. She sat down on the bed. Thompson lowered his pants and underwear and said something in English that she did not understand. Thompson pushed Doe's head toward his genital area but stopped when Doe resisted. Thompson then removed Doe's shorts and underwear and climbed on top of her. He attempted to put his penis in her vagina, but was not able to do so. He stopped and inserted some of his fingers into her vagina, causing her pain. He then tried vaginal intercourse again. This time, Doe felt slight penetration, and it hurt. Thompson stopped, picked up a towel, and used it to wipe Doe's genital area. Doe noticed blood on the towel. Thompson told Doe to put her clothes on. He then rummaged through some drawers. He went into another bedroom, rummaged through more drawers, and removed clothing and jewelry. Thompson put Doe in the room with the dog and left the home.
III.
2009 Investigation and DNA Evidence
In July 2009, Anaheim Police Detective German Alvarez contacted Doe regarding her original statements. After reviewing her statements from 1998, Doe indicated they were accurate. Alvarez showed Doe a "six-pack" photographic lineup that included Thompson's photograph. Doe pointed to Thompson's photograph and described him as most resembling the man who had assaulted her.
Also in 2009, the swabs taken from Doe during her sexual assault examination were sent to the Orange County Crime Laboratory for DNA testing. No sperm cells were detected in the swabs from Doe's internal labia, right thigh, or right calf. The external labial swab contained spermatozoa (sperm cells). Sperm was also found in the vaginal swab. The male DNA profile in the external labial sample was consistent with the male profile in the vaginal swab. Thompson's DNA profile matched the one obtained from the sperm fraction from the external labial swab. The male DNA profile obtained from the sperm fraction from the vaginal swab also matched Thompson, but complete typing in all marker locations was not possible because there was a low level of male DNA in the vaginal swab. Significant levels of amylase were found in the swabs from Doe's right thigh and calf, but DNA foreign to Doe was not detected.
IV.
Thompson's Testimony
Thompson testified in his own defense. He denied raping Doe or forcing her upstairs. He testified that he met Doe in mid-September 1998 at an apartment in Santa Ana. He gave her a ride to work and helped carry her bag into the house. He testified that he and Doe talked on the telephone a few times between that day and September 28, 1998.
According to Thompson, on September 28, Doe invited him to the house so they could "hook up." He arrived at around 9:00 a.m. or 10:00 a.m. and knocked on the front door. After Doe let Thompson into the house, they started kissing on a couch downstairs, then moved upstairs to one of the bedrooms. Thompson testified he had a difficult time getting an erection. He performed oral sex on Doe and asked her to perform oral sex on him. She declined. She told him to hurry because she was not supposed to have anyone in the house. Doe started bleeding and went to the bathroom. Thompson went into the master bedroom and took a couple of watches from the jewelry box. On his way out of the house, he also grabbed a "boom box" from downstairs. He left and had no other contact with Doe. Thompson testified that Doe's testimony was accurate except for Doe's testimony that he raped her.
Thompson testified that when first questioned by police about the case, he claimed he was not near Anaheim Hills on September 28, 1998 and did not know anything about a home invasion robbery and rape. He claimed it was not until seeing the police reports that he understood they were referring to his "hook up" with Doe.
DISCUSSION
I.
The Trial Court Must Conduct a Marsden Hearing.
At the sentencing hearing in March 2015, when the trial court asked if there was any legal cause why sentence should not be imposed, defense counsel stated that Thompson wished to make a statement. Thompson was placed under oath and made a statement to the court. He stated he had written a nine-page letter to the court that he wanted the court to consider. The letter was marked as court sentencing exhibit No. 1. The court took a recess to consider the letter.
In the letter, Thompson asserted the public defender's office had hidden exonerating evidence and his lawyer was "not on my side." Among other things, Thompson claimed that when he indicated he did not want to testify at trial, his (then current) attorney called him a "piece of shit," had refused his request to ask Doe certain questions on cross-examination, and had refused to impeach Doe with her conditional examination because the attorney thought there was information in that examination that would hurt Thompson. He claimed the attorney did not file motions, did not argue for a trial continuance, and did not dismiss a juror. Thompson alleged that his prior attorneys kept from him the fact that the prosecution initially was unable to find West (the nurse) to establish a chain of custody for the DNA evidence. Thompson did not like his attorney's argument and accused his attorney, the district attorneys, sheriff's deputies, a confidential informant, and a judge of conspiring against him. The letter concludes, "I am asking the court to al[l]ow me a new trial for all these reasons and to be given a new trial and also to appoint someone to investigate the misconduct . . . this is not just . . . ineffective assistance of counsel this is misconduct from the DA to the PD[']s office maybe even a few judges." (Some capitalization omitted.) Thompson asked for a new judge because the judge had known his attorney for 30 years.
On the stand, Thompson expressed his concern about one of the jurors and asked, "wasn't I supposed to be allowed to pick who I wanted or didn't want or whatever?" He believed that juror, who said she had worked with sexually violent predators, "contaminated the jury." Thompson repeated his claim that his trial counsel would not impeach Doe with her conditional examination because it would harm the defense case.
The trial court considered the letter and patiently listened to Thompson. The court told him that appellate counsel would consider his remarks and evaluate the record, including the conditional examination. The court stated, "[t]oday is the date and time set for sentencing" and "[w]e're going to leave these issues that you are arguing as the basis for your motion for new trial for your appellate attorney." The court did not conduct a Marsden hearing but proceeded to sentencing.
Once a criminal defendant expresses a desire to have new counsel appointed, the defendant must be given the opportunity, outside the presence of the prosecutor, to identify specific complaints against his or her counsel and for counsel to respond. (Marsden, supra, 2 Cal.3d at p. 124; People v. Smith (1993) 6 Cal.4th 684, 694.) Although a formal motion is not required, the defendant must provide "'some clear indication'" that the defendant wants a new attorney. (People v. Dickey (2005) 35 Cal.4th 884, 920.) The standard expressed in Marsden applies equally to preconviction and postconviction. (People v. Smith, supra, at p. 694.) "When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request." (People v. Diaz (1992) 3 Cal.4th 495, 573.)
In his nine-page letter and his statements under oath, Thompson unequivocally expressed his desire for a new attorney. The trial court therefore should have conducted a Marsden hearing and we shall reverse and remand with directions for that purpose. The disposition will follow the directions set out in People v. Sanchez (2011) 53 Cal.4th 80, 92-93.
II.
Substantial Evidence Supported the True Finding
on the (d)(2) Allegation.
The jury found true the (d)(2) allegation that Thompson kidnapped Doe and the movement substantially increased the risk of harm to her over and above the level of risk necessarily inherent in the offense. Thompson argues substantial evidence did not support the jury's true finding on the section 667.61, subdivision (d)(2) enhancement. When considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (Ibid.)
Sentence on this enhancement was imposed and stayed. --------
The "One Strike" law, section 667.61, provides an alternative sentencing scheme for specified sex offenses if certain circumstances are found. (People v. Lopez (2004) 119 Cal.App.4th 355, 360.) When one or more of the circumstances in subdivision (d) of section 667.61 are found to be true, the defendant is subject to a state prison sentence of 25 years to life. (People v. Lopez, supra, at p. 360.) Relevant here is section 667.61, subdivision (d)(2), which states: "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense . . . ."
"The plain wording of this enhancement requires two elements: (1) a simple kidnapping [citation] [fn. omitted]; and (2) a substantial increase in the risk of harm to the victim." (People v. Diaz (2000) 78 Cal.App.4th 243, 246.)
As to the first element, section 667.61, subdivision (d)(2) requires movement of the victim "that is more than incidental to the underlying sex offense." (People v. Diaz, supra, 78 Cal.App.4th at p. 246.) The jury considers the "'scope and nature'" of the movement and the "context of the environment in which the movement occurred." (People v. Rayford (1994) 9 Cal.4th 1, 12.) There is no minimum number of feet a defendant must move a victim in order to satisfy this element. (Ibid.) As to the second element, the jury considers "such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes." (Id. at p. 13.)
"Whether a forced movement of a rape victim (or intended rape victim) was merely incidental to the rape, and whether the movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases. . . . [T]he jury must 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.' [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim. 'These two aspects are not mutually exclusive, but interrelated.' [Citation.]" (People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152.) Although the jury must consider the actual distance the victim was forced to move, no minimum distance is required so long as "the movement is substantial." (Id. at p. 1152.)
Thompson forced Doe to go from the downstairs kitchen to an upstairs bedroom, a distance of 51 to 52 feet. The context and environment in which the movement occurred are significant. Although the movement was within a residence, it was from a downstairs kitchen door to an upstairs bedroom at the end of a hallway. The downstairs kitchen, where Thompson grabbed Doe, has glass French doors. The kitchen looked out to the backyard, rather than the street, but anybody who might be working at the house (for example, a gardener or pool maintenance) could more likely detect what was going on in the kitchen. The downstairs of the house has five doors leading outside and has many windows. The bedroom upstairs was at the end of a hallway, tucked away at the back of the house, and was more secluded than the kitchen. Moving Doe in this way substantially increased the risk to her because she was in a place where it was harder to detect the crime and it would be difficult and dangerous for her to escape.
Thompson argues that moving Doe upstairs was incidental to the sex offenses "by providing a bed to facilitate the sex acts." However, Thompson could have committed rape downstairs. He did not; he chose instead to move Doe upstairs to a more secluded part of the house.
Thompson argues the evidence in this case is legally insufficient when compared to the facts of People v. Daniels (1969) 71 Cal.2d 1119. In People v. Daniels, the defendants, in the course of robbing and raping three women in their own homes, forced the women to move about their rooms "for distances of 18 feet, 5 or 6 feet, and 30 feet respectively." (Id. at p. 1126.) The California Supreme Court held that these short movements were incidental to the commission of robbery. (Id. at p. 1140.) The court explained: "[W]hen in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him—whether it be a residence, as here, or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation 'into another part of the same county.'" (Ibid.)
Since People v. Daniels, the California Supreme Court has analyzed the question whether the movement was incidental to the commission of the underlying offense not just by distance, but "by considering the context of the environment in which the movement occurred." (People v. Rayford, supra, 9 Cal.4th at p. 12.) The fact that movement is a short distance or entirely within a residence is not dispositive. Here, it is significant that Thompson substantially changed the context and environment by moving Doe from the downstairs kitchen with a glass door leading the backyard to an upstairs bedroom at the end of a hallway.
Thompson also argues that moving Doe upstairs did not substantially increase the risk of harm because detection was no less likely in the bedroom than in the kitchen due to the size of the house and distance from neighbors. The evidence presented to the jury, including evidence of the size and layout of the house, was sufficient to support a finding that moving Doe to an upstairs bedroom decreased the likelihood of detection and made it substantially more difficult and more dangerous for Doe to attempt to escape.
DISPOSITION
In accordance with People v. Sanchez, supra, 53 Cal.4th at pages 92-93, our disposition is as follows: (1) the trial court shall hold a hearing on Thompson's Marsden motion concerning his representation by the public defender's office; (2) if the court finds that Thompson has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or Thompson's Marsden motion is denied, the court shall reinstate the judgment. In the event the judgment is reinstated, the true finding on the enhancement alleged under section 667. 61, subdivisions (a) and (d)(2) is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.