Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027419
HULL, J.Defendant Henry Alfred Walker was tried by jury and convicted of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)); unspecified section references that follow are to the Penal Code), sexual penetration by foreign object accomplished by means of force or violence (§ 289, subd. (a)(1)), battery causing serious bodily injury (§ 243, subd. (d)), and first degree residential burglary (§ 459). With respect to all counts, the jury found that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). With respect to the sex offenses, the jury also found that they occurred during the commission of a burglary, resulted in great bodily injury, and involved the tying or binding of the victim (§ 667.61, subds. (a), (b), & (e)). Following a bifurcated hearing, the trial court found that defendant had a prior serious felony conviction (kidnapping for ransom) (§§ 667, subd. (a)(1); 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Defendant was sentenced to state prison for a determinate term of 32 years plus two consecutive indeterminate terms of 50 years to life.
On appeal, defendant claims (1) his motion to suppress was erroneously denied because the consent he gave to search his apartment was not voluntary, (2) the trial court prejudicially erred in instructing the jury on defendant’s flight pursuant to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 372, and (3) there was insufficient evidence that defendant tied or bound the victim. We affirm the judgment.
Facts and Proceedings
Following the well-established rule of appellate review, we recite the facts in the light most favorable to the judgment, drawing all reasonable inferences in support thereof. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
On a November evening in 2005, defendant entered 74-year-old M.R.’s home as she was eating dinner in the living room. He brought with him a blue nylon rope. As defendant approached M.R. from behind, she stood up and said: “Get out of here.” Defendant responded with his fist, punching her in the face at least three times. M.R. fell “flat backwards” onto the floor and spit out the food that was in her mouth. Defendant then climbed onto her stomach and called her “names that aren’t used in polite company.”
Fearful for her life, M.R. “didn’t care about anything except surviving.” She asked defendant not to hurt her and explained that she would do what he wanted. Defendant wanted to go to the bedroom, but M.R. was unable to get up, so she told him to drag her. Defendant dragged M.R. through the kitchen and into her bedroom, leaving a trail of blood on the carpet. He then helped her onto the bed, unzipped his pants, and penetrated her vagina with his flaccid penis. Unable to gain an erection, defendant told M.R. to orally copulate him; M.R. complied. Still unable to achieve an erection, defendant used his fingers to penetrate M.R.’s vagina. At some point during this violative ordeal, defendant tied the blue nylon rope to one of M.R.’s wrists, but was unable to tie the other wrist because M.R. managed to slip her hand out of the rope as defendant attempted to bind her hands together.
Once defendant was done sexually assaulting M.R., he got up, lit a cigarette, and looked out the window as if to “be sure it was safe.” M.R. asked: “Did you lose your head?” Defendant responded: “Got any money?” M.R. said that she did not. Defendant left.
M.R. immediately called the police. Officer Alexi Fanopoulos of the Oroville Police Department went to M.R.’s home. M.R. answered the door wearing nothing but a pair of blood-stained panties. Her face, hands and inner thighs were covered in blood; her right eye was swollen shut, and her left eye and clavicle also were bruised. M.R. described her attacker and explained that she recognized him as a man who had lived at the Oroville Inn apartments between 2001 and 2002, when she too lived at those apartments. Police then contacted the manager at the Oroville Inn and was told that only one resident fitting the description currently lived at the complex; that resident was defendant. A double-blind photo lineup was prepared and delivered to Detective Jason Barkley, who presented the lineup to M.R. M.R. identified defendant as her attacker.
Detective Barkley and Officer Fanopoulos went to the Oroville Inn in order to speak with defendant, but he was not at his apartment. However, Barkley and Fanopoulos received information that defendant’s girlfriend also lived at the complex. When they knocked on her door, defendant answered. Detective Barkley asked defendant to step outside. When defendant did so, he was handcuffed and informed that he was under arrest for sexual assault. Detective Barkley then asked for defendant’s permission to search his apartment; defendant agreed. Defendant did not, however, have the key to his apartment, so Officer Fanopoulos retrieved a key from the apartment manager. Before opening defendant’s apartment door, Detective Barkley again asked defendant if he consented to a search of his apartment; defendant said, “yeah, go ahead.”
Inside defendant’s apartment, police found a pair of bloody shoes. Officer Fanopoulos then escorted defendant to the Oroville Medical Center for a Sexual Assault Response Team (SART) examination. Fanopoulos witnessed defendant lower his pants to reveal a pair of blood-stained boxers. Defendant’s clothes were taken as evidence and forwarded to the California Department of Justice for analysis. The blood on defendant’s boxers was a DNA match for a reference sample of M.R.’s blood.
Discussion
I
The Search
Defendant contends his motion to suppress was erroneously denied because the consent he gave to search his apartment was not voluntary. We disagree.
Where “the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341, citing People v. James (1977) 19 Cal.3d 99, 106 (James).) “The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ [Citations.]” (James, at p. 106.) “Our role in reviewing the resolution of this issue is limited. The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘[t]he power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings--whether express or implied--must be upheld if supported by substantial evidence.’ [Citations.]” (Id. at p. 107.)
In James, supra, 19 Cal.3d 99, our Supreme Court found substantial evidence to support the trial court’s implied finding that James voluntarily consented to a search of his house where: four armed officers knocked on James’s door at night; one of the officers asked James to step outside, then handcuffed and placed him under arrest, informed him that they were conducting a robbery investigation, and asked if they could look in the house for items taken in the robbery. James said they could. (Id. at pp. 106-107.) The court rejected James’s contention that the fact he was under arrest and in handcuffs rendered the consent involuntary as a matter of law. As the court explained, the fact that a defendant is in custody at the time he gives consent to search “is a circumstance which is of ‘particular significance’ but is ‘not conclusive’ in the determination of voluntariness. [Citation.]” (Id. at p. 109.) Nor does the fact that a defendant is in handcuffs automatically render his consent to search involuntary. (Id. at p. 110.) Rather, these circumstances are “‘to be considered [along with all other circumstances bearing on the issue] by the trial judge who sees and hears the witnesses and is best able to pass upon the matter.’ [Citation.]” (Ibid.)
The court also rejected James’s contention that his consent was merely submission to authority because armed officers who dramatically took him into custody confronted him at night. (James, supra, 19 Cal.3d at p. 110.) As the court explained: “[T]he arresting officer neither held defendant at gunpoint, nor unduly detained or interrogated him; the officer did not claim the right to search without permission, nor act as if he intended to enter regardless of defendant’s answer. Whether in some other setting the conduct of [the officer] might be deemed coercive is not the issue before us; rather, the precautions he took must be viewed in the light of his assignment on the evening in question, i.e., to apprehend a man who was suspected of armed robbery and burglary and was reportedly in possession of a handgun. [Citation.] ‘Under these circumstances, to hold as a matter of law that the evidence was produced in response to an unlawful assertion of authority would seriously hamper officers in the reasonable performance of their duties.’ [Citation.]” (Id. at p. 113.)
In this case, the People introduced the following evidence on the issue of defendant’s consent at the hearing on defendant’s motion to suppress: Detective Barkley and Officer Fanopoulos found defendant at his girlfriend’s apartment. Detective Barkley was probably wearing a raid vest with the word “police” emblazoned on the front and back in yellow letters. He was also armed with either a Glock 22.40 caliber semi-automatic handgun or a 1911 Colt.45 caliber handgun. Officer Fanopoulos was in full police uniform and was also armed. Detective Barkley asked defendant to step outside. When defendant did so, he was handcuffed and informed that he was under arrest for sexual assault. Detective Barkley then asked for defendant’s permission to search his apartment; defendant agreed.
Detective Barkley and Officer Fanopoulos then walked with defendant to his apartment. Defendant did not, however, have the key to his apartment, so Officer Fanopoulos retrieved a key from the apartment manager. Before opening defendant’s apartment door, Detective Barkley again asked defendant if he consented to a search of his apartment; defendant said, “yeah, go ahead.” Detective Barkley at no point informed defendant that he had a right to refuse consent. Neither officer drew his weapon at any point during this interaction with defendant.
We find the People have met their burden of showing that defendant’s two manifestations of consent were the product of his free will and not submission to an assertion of authority on the part of Detective Barkley and Officer Fanopoulos. While the fact that defendant was in custody and in handcuffs at the time of the consent is certainly significant, it is “‘not conclusive’ in the determination of voluntariness.” (James, supra, 19 Cal.3d at p. 109.) As was the case in James, neither Detective Barkley nor Officer Fanopoulos held defendant at gunpoint (id. at p. 113), nor did they unduly detain or interrogate him, claim the right to search without permission, or act as if the apartment would be searched regardless of defendant’s answer. (Ibid.) “‘The mere asking of permission to enter and make a search carries with it the implication that the person can withhold permission for such an entry or search.’” (Id. at p. 116.) Here, defendant was twice asked whether he consented to a search of his apartment. Defendant consented both times. Under the circumstances of this case, the People have adequately demonstrated that defendant’s consent was voluntary.
II
CALCRIM No. 372
Defendant also contends the trial court erred in instructing the jury on defendant’s flight pursuant to CALCRIM No. 372.
CALCRIM No. 372, as given to the jury, provides: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
We begin by noting that defendant did not object to this instruction at trial. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We find no error, much less a miscarriage of justice.
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
“[A] flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
In this case, the trial court had before it two circumstances indicating that defendant left the scene of the sexual assault with a purpose to avoid being observed or arrested. First, M.R. testified that prior to defendant’s departure, he looked out the window as if to “be sure it was safe.” Second, defendant was not found at his apartment following the assault, but was at his girlfriend’s apartment in the same complex. The first of these circumstances would probably have been enough to support a flight instruction. When combined with the second, we do not hesitate to conclude that the trial court had before it substantial evidence to support the flight instruction.
III
Sufficient Evidence of Tying or Binding
Finally, defendant contends there was insufficient evidence that he tied or bound the victim within the meaning of section 667.61, subdivision (e)(6). Not so. Section 667.61 “‘sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes’ when a defendant commits one of those crimes under specified circumstances. [Citations.]” (People v. Acosta (2002) 29 Cal.4th 105, 118.) Subdivision (e)(6) of section 667.61 sets forth one of those circumstances: “The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.”
In People v. Campbell (2000) 82 Cal.App.4th 71 (Campbell), the Court of Appeal, Fourth Appellate District, held that covering the eyes of a sexual assault victim with tape constituted the “tying or binding” of the victim within the meaning of section 667.61, subdivision (e)(6). (Campbell, at pp. 73, 79.) As the court explained the plain meaning of the statutory language: “The verb ‘tie’ is defined as ‘to bind, fasten, make fast (one thing to another, or two or more things together) with a cord, rope, band, or the like... to confine (a person or animal) by fastening to something,’ while ‘bind’ is defined in its two principal senses as ‘To tie fast’ and ‘To tie about, bandage, gird, encircle.’ The noun ‘tie’ itself derives from Old Norse ‘taug,’ or rope. [Citation.]” (Id. at p. 77.) The court continued: “Clearly, while the words ‘tying’ and ‘binding’ may sometimes be used as synonyms, ‘courts must avoid a construction that would render related provisions nugatory. [Citation.]’ [Citation.] Thus, we are constrained to read the phrase ‘tying or binding of the victim’ as referring to related but differing activities, and we observe further that the additional criminal liability under section 667.61, subdivision (e)(6) may be imposed for either tying or binding.” (Ibid.)
The court further noted that the “common theme” of the other circumstances subjecting perpetrators of specified sex offenses to enhanced punishment under section 667.61, subdivision (e), is that “they increase the victim’s vulnerability.” (Campbell, supra, 82 Cal.App.4th at p. 78.) The court concluded: “While the increased vulnerability of a victim whose hands or feet (or both) are tied is immediately clear, we cannot in any logical manner distinguish such an enhanced vulnerability from that inherent in being bound so as to be unable to see.” (Id. at p. 78.)
In this case, we find that M.R.’s wrist was “bound” within the plain meaning of section 667.61, subdivision (e)(6). M.R. testified that defendant tied the blue nylon rope to one of her wrists:
“Q. At some point while this is occurring, did [defendant] produce a rope of some sort?
A. Yes.
Q. What did he do with that rope?
A. Tied, tried to tie me up.
Q. Where did he tie you up? What part of your body?
A. Well, I remember it being on one wrist. But while he was doing that, I was taking it off.
Q. Okay. But he got it attached to your wrist; is that correct?
A. Yes.”
The prosecutor then showed M.R. a picture of the blue nylon rope that was found in her house, and asked: “Is that the cord that was attached to your wrist?” M.R. responded: “Yes.”
Defendant argues that there was insufficient evidence of tying or binding because the rope that was attached to one of M.R.’s wrists did not make her more vulnerable. First, the court in Campbell did not hold that the only tying and binding that falls within section 667.61, subdivision (e)(6), is that which renders a victim more vulnerable. However, even if Campbell could be read to stand for such a proposition, we find that under the circumstances of this case, the jury was justified in finding that the act of binding 74-year-old M.R.’s wrist with rope during the course of this sexual assault made her more vulnerable. It did, after all, at least momentarily, allowed defendant a modicum of control he would not otherwise have had. Accordingly, substantial evidence supports the jury’s “true” finding on this section 667.61, subdivision (e), circumstance.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.