Opinion
A151609
12-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MAURICE JAMES NATHANIEL VERNON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR213379)
Defendant Maurice James Nathaniel Vernon appeals a judgment imposing a prison sentence of 30 years to life upon his conviction over the course of two jury trials of rape committed in concert with another during which the victim was kidnapped, and of robbery. Defendant and Donshay Nichols were convicted of rape in concert and robbery at the first trial but the jury could not agree on whether the rape involved a kidnapping. At the second trial, at which Nichols testified against defendant after having entered a plea agreement with the prosecution, the jury found the kidnapping allegation to be true. On appeal defendant raises only two issues: that the kidnapping allegation was not adequately pleaded and that the trial court abused its discretion in permitting Nichols to testify against him at the second trial. We find no merit in either contention and shall affirm.
Background
Because of the limited issues raised on appeal, a detailed recitation of the evidence is unnecessary. In short, the evidence showed that on the evening of September 13, 2011, the victim was accosted by defendant and Nichols as she was walking from a bus stop in Vallejo to her parked car. One of the men displayed a gun, took her jewelry and demanded her money. When she said she had none, she was walked to her car, which she testified at the first trial was about three meters away, and at the second trial was five or six meters away. Inside the car, the victim was raped by each of the two men.
Defendant was charged by information with forcible rape (Pen. Code, § 261, subd. (a)(2)—count 1), robbery (§ 211—count 2), dissuading a witness (§ 136.1, subd. (c)(1)—count 3), and criminal threats (§ 422—count 4). As to count 1 the information alleged, "within the meaning of . . . sections 667.61 (a) and (d) . . . the following circumstances apply: Rape in concert pursuant to . . . section 667.61 (d)(5)." The information also alleged a gun enhancement, and charged codefendant Nichols with forcible rape in concert and robbery. At the conclusion of the first trial the jury found both defendants guilty of the forcible rape in concert and robbery, and defendant guilty of dissuading a witness. Defendant was found not guilty of making criminal threats and the gun enhancement allegation was found not true. The jury could not agree on whether the rape involved a kidnapping and a mistrial was declared as to that allegation.
All statutory references are to the Penal Code.
At the first trial, defendant objected to permitting the prosecution to argue and the jury to decide whether the rape involved a kidnapping on the ground that the information did not specifically so allege. As discussed more fully below, the court overruled the objection, ruling that the in-concert allegation included the kidnapping allegation and that defendant had received sufficient notice that kidnapping was being alleged. Over defendant's objection, prior to the second trial the information was amended to include this allegation explicitly.
The amended information alleges, "within the meaning of . . . sections 667.61(a) and (d) . . . the following circumstances apply: RAPE IN CONCERT PURSUANT TO . . . SECTION 667.61(d)(5), and in the commission of that offense, [defendants] committed kidnapping as described in section 667.61(d)(2)."
Prior to commencement of the second trial, Nichols entered a plea agreement with the prosecution under which in exchange for receiving a sentence of 19 years, rather than the 25 years to life sentence he faced if convicted of the aggravated rape and kidnapping, he agreed to testify. The agreement was conditioned on truthful testimony and Nichols was granted use and derivative immunity. Nichols did testify at the second trial, essentially corroborating the victim's testimony.
Defendant was sentenced to 25 years to life on count 1 for the aggravated rape, a consecutive term of five years on count 2 for the robbery, and a concurrent three-year term on count 3 for dissuading a witness. Defendant timely filed a notice of appeal.
Discussion
1. The failure to initially allege kidnapping explicitly does not require reversal.
Defendant contends that the failure to have explicitly alleged in the information that was operative at the first trial that upon conviction he would be subject to the enhanced penalty prescribed in section 667.61, subdivision (d) because the victim had been kidnapped violated his right to due process and the express pleading requirements of the so-called one strike law. Whatever merit there may have been in that contention had the kidnapping allegation been found true at the first trial—an issue we need not decide—the amendment of the pleading before the second trial unquestionably cured the defect.
Section 667.61, subdivision (a) provides, with exceptions not relevant here, "any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for 25 years to life." Rape accomplished by force or duress (§ 261, subd. (a)(2)) is one of the offenses specified in subdivision (c). Subdivision (d) of section 667.61 provides in part as follows: "The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (2) 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 the level of risk necessarily inherent in the underlying offense in subdivision (c). [¶] . . . [¶] (5) The defendant committed the present offense in violation of Section 264.1 [rape or other sex offense committed in concert with another] . . . and, in the commission of the offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision."
The statute has been amended since the date of defendant's crime but the amendments do not affect any issue on this appeal. --------
As quoted above, the information here initially alleged that section 667.61, subdivision (d)(5) applied, but it did not specify which of the three alternatives—paragraph (2), (3) or (4)—applied. While paragraph (2) requires a kidnapping, paragraph (3) requires mayhem or torture and paragraph (4) requires a first degree burglary. Hence, defendant's contention is that the pleading did not provide notice of the specific charge against him, as required by due process (People v. Mancebo (2002) 27 Cal.4th 735, 752), and that it did not comply with subdivision (o) of section 667.61, which provides: "The penalties provided in this section shall apply only if the existence of any circumstances specified in subdivision (d) . . . is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact."
At the first trial, the court ruled that defendant had received fair notice by other means that the prosecution was contending that the kidnapping circumstance applied, and thus overruled defendant's multiple objections to the prosecution proceeding on that basis. Whether or not the court's ruling was correct, which we do not decide, the jury made no finding on the kidnapping allegation at the first trial, and the information was amended to include the allegation before the second trial. Defendant unquestionably had sufficient notice of the accusation he faced at the second trial, and section 667.61, subdivision (o) was fully satisfied.
Defendant contends that the trial court erred in granting the prosecution's motion to amend the information. He argues that if a motion to amend the information had been made during the course of the first trial it would have been denied as prejudicial to the defense. This seems unlikely in view of the rulings the court did make on the actual matters before it, but regardless, that is not when the motion was made and granted. In his reply brief, defendant for the first time argues that since the enhancement allegation was not properly presented at the first trial, it may not be corrected and then retried, citing People v. Najera (1972) 8 Cal.3d 504, 511-512, disapproved on another ground in People v. Wiley (1995) 9 Cal.4th 580, 587-588. However, Najera held only that the People were not entitled to have a case remanded for a second trial to apply an enhancement that had never been alleged during the original trial. Here, the prosecution has sought from the outset to apply the one strike law to defendant's offense. There is no reason why the enhancement may not be retried following a conviction on the underlying offense and a hung jury on the enhancement (People v. Schultz (1992) 5 Cal.App.4th 563, 568-570), nor is there any reason why the pleading may not be clarified before the retrial if necessary or helpful. The amendment simply eliminated the pleading question but did not subject defendant to any new accusation or potential penalty. The issue provides no basis for reversal.
2. The court did not err in permitting Nichols to testify against defendant.
Defendant also contends that the court erred in permitting his former codefendant to testify at the second trial, arguing that having been promised a reduced penalty subject to what the prosecutor considered truthful testimony, his testimony was particularly unreliable. Defendant argues, "The issue here is not simply that Nichols was a co-defendant who received leniency in exchange for his testimony. Rather, the issue is that in addition to being an accomplice who sought leniency in exchange for favorable testimony, he knew exactly what testimony the prosecution wanted because he was present during the first trial. Significantly, he was present not only for the taking of evidence, but also for the argument of counsel that occurred outside the presence of the trier of fact." However, these arguments do not go to the admissibility of the testimony but only to its weight. Nichols was subject to extensive cross-examination and defendant could and did attempt to persuade the jury that his testimony should be rejected. The courts have many times "rejected the contention that the testimony of an immunized accomplice is necessarily unreliable and subject to exclusion. [Citations.] Similarly, we have rejected the contention that the testimony of an accomplice who has received a favorable plea agreement in return for his or her testimony is inherently unreliable." (People v. Jenkins (2000) 22 Cal.4th 900, 1010.) While Nichols' presence at the first trial may be an additional fact that could be used in the attempt to discredit his testimony, it provides no basis for requiring its exclusion.
Disposition
The judgment is affirmed.
Pollak, P.J. We concur: Streeter, J.
Tucher, J.