(San Francisco City & County Super. Ct. No. 199758). Hon. Gail Dekreon.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Tomelia Dillon of grand theft from the person, assault by means of force likely to produce great bodily injury, and misdemeanor battery arising from his encounter with a young woman who became lost in downtown San Francisco during a New Year's celebration. The jury convicted Dillon's co-defendant, Damien Danari Hall, of assault with intent to commit sexual penetration with a foreign object, arising out of the same encounter. On appeal, defendants contend that their convictions are the result of instructional and other errors committed in the course of their joint trial. We affirm the judgments against both defendants, but return both matters to the trial court for the correction of minor clerical errors in the abstracts of judgment.
Defendant Hall was charged by information with forcible sexual penetration with a foreign object (Pen. Code,*fn2 § 289, subd. (a)(1); count I) and sexual battery (§ 243.4, subd. (a); count II). The same information charged defendant Dillon with second degree robbery (§ 212.5, subd. (c); count III), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count IV), and misdemeanor battery (§ 242; count V). Counts IV and V were accompanied by enhancement allegations that Dillon had been released on bail or his own recognizance when he committed those offenses (§ 12022.1). Hall and Dillon pleaded not guilty to the charges, and Dillon denied the special allegations.
A jury trial for both defendants commenced on November 28, 2006.
On December 31, 2005, Antoinette B. was 19 years old and lived in San Ramon. That evening, she and about six friends took BART from San Ramon to celebrate New Year's Eve in San Francisco. They arrived in San Francisco about 9:30 or 10:00 p.m. They went from the BART station to the Galleria Hotel, where one of her friends had reserved a room for the night. Antoinette and her friends checked in to the hotel, put their belongings in the room, and then went outside to look around the city. Antoinette had been in San Francisco only once before, a few months earlier. She had not stayed at the Galleria Hotel previously and was not familiar with that part of the city.
Antoinette and her friends walked around looking at buildings and restaurants, but they did not eat. About midnight, while walking through a restaurant, Antoinette lost her cell phone. She never found it again. Antoinette and her friends ushered in the new year near a large Macy's store that they had walked to, before returning to the hotel. While some of Antoinette's friends went to a restaurant in the hotel for a few drinks, Antoinette remained outside, smoking a cigarette.
While she was outside smoking, Antoinette got a call on a cell phone she had borrowed from someone in her group. The call was from a friend named Albert, who was with a separate group that had arrived in San Francisco later than her group. Albert indicated that he was near a clock tower. She tried to ask her friends in the Galleria restaurant for directions to the hotel that she could give to Albert, but there was too much noise and commotion. Antoinette was also slightly intoxicated and ―buzzed,‖ although not to the point that she was incoherent or did not know what was going on. While still on the phone with Albert, Antoinette started walking toward what she believed to be his location. She understood that Albert and his friends would be walking toward her.
Antoinette and Albert continued talking on the cell phone from time to time as she tried to find him. She walked away from the Galleria Hotel and came to a 7-Eleven store. Near the 7-Eleven, Antoinette came upon several police officers at an intersection. She asked them for directions but she was unsure of the street names and did not understand what they were telling her. Then she came to a BART station. The location seemed similar to the location Albert was describing, but she could not find him. Albert told her he was still walking, trying to find the Galleria. Antoinette decided to return to the hotel to wait for him there. She asked some people how to get to the Galleria Hotel, but she got conflicting directions and did not know which way to go. She started walking in a direction that she felt would take her back to the hotel.
Three men approached Antoinette and offered directions. She did not remember asking any of the men for directions. Dillon spoke to her first. One of the men told her she was walking in the right direction. She continued walking and then sensed that the men were following her. They continued to talk to her even though she did not talk to them or encourage them in any way to walk with her. She told them at least three times to stop following her. She was very nervous, and scared of the men. Trying to get away from them, Antoinette quickly crossed in mid-block to the other side of the street. The men continued following her.
Shortly after she crossed the street, the three men surrounded her. Dillon was to her left, and Hall, who was initially toward her right side, ended up behind her. She was carrying her purse, which she described as ―a little bag,‖ on one of her shoulders and was holding her friend's cell phone. Antoinette was on the phone, telling Albert that he had to come help her because she was being followed and the men would not leave her alone, when Dillon grabbed the phone out of her hand. She did not remember what Dillon did with the phone, but she never saw it again. After Dillon took the phone, Hall reached around Antoinette from behind and pinned her arms to her sides. Antoinette, who was 5 feet 1 inch tall and weighed 90 pounds, tried to free her arms and get away from Hall, but could not. Hall was bigger than Antoinette but she did not know how tall he was.
Against her will, Hall put one of his hands into her shirt and placed it on Antoinette's left breast, under her bra. After that, he slid his hand down her jeans, unbuttoned them, and pulled down her zipper. He stuck his hand into her pants below her underwear, skin to skin. She did not want him to do that, had not asked him to do that, and had no amorous feelings for Hall. Antoinette started crying and screaming for them to let her go and crying out for help, but no one came to help her. As he moved his hand down under her underwear, Antoinette believed that the tip of Hall's finger may have penetrated the outside of her vagina for a few seconds, although his finger never fully entered into it.*fn3 After a few seconds, Hall removed his hand from her pants and let her go. She asked the men why they would do that to someone, but could not remember getting any response.
Antoinette zipped up and buttoned her pants and walked back across the street where there were more people. Dillon, Hall, and the third man continued to follow her. Antoinette was still crying and asking people on the street for help. Dillon told her not to ask anyone for help and would shove her when she stopped and tried to ask for help. At the corner next to the Grand Hyatt Hotel, Dillon gave Antoinette a strong kick on her upper right thigh when she asked a woman for directions. He said, ―You're not going to ask people for help.‖ He then said something to the effect that she was going to make him some money, and she did not need to talk to anyone on the street or ask for help or directions. A couple of seconds later, Dillon reached for Antoinette's purse on her shoulder and grabbed it. As he grabbed it off her shoulder, she ran toward the Hyatt's revolving door entrance. She was scared for her life and thought people inside the hotel would help her. As she reached the revolving doors, Dillon came up behind her, grabbed her hair, and pulled her back. Her legs and feet were dragging on the sidewalk. At that point, a hotel security guard approached, and Dillon ran off.
About 1:00 a.m. on January 1, 2006, Grand Hyatt Hotel security guard Pablo Molina was checking the identification of persons entering the hotel's elevators to confirm that they were guests of the hotel. He was stationed about 10 feet from the hotel doors on Stockton Street. He heard a loud bang and, shortly after, a female voice screaming. He could see a lot of people in the lobby looking toward the glass doors, so he headed toward the doors. He looked out and saw a female being dragged on the sidewalk by her hair. He saw a male with his hands on the female's hair dragging her in the direction of Sutter Street. The male was over six feet tall, African-American, and weighed over 200 pounds. Molina came out of the hotel and ran toward the female. The male released her and ran in the direction of Sutter Street. Molina picked up the female and carried her inside the hotel.
The parties stipulated to the playing of a security camera videotape taken of the front of the Grand Hyatt Hotel on January 1, 2006, beginning at 1:11 a.m. The video showed Dillon following Antoinette and pulling Antoinette's hair with one hand. The video also showed Dillon with Antoinette's purse in his other hand.
Two off-duty Alameda County Sheriff's deputies, Curtis Nelson and Shawn Christiansen, and their wives, were sitting and talking in the lobby of the Grand Hyatt Hotel shortly after 1:00 a.m. on January 1, 2006. The deputies heard a loud banging type of noise when something hit the window at the entrance to the Hyatt. This was followed by a woman screaming. Both deputies ran outside. Outside there was a young woman on the sidewalk, with a group of people gathered around her and a hotel security guard kneeling beside her, trying to comfort her. Nelson asked the woman what had happened and she provided a description of a Black male with a bald or shaved head, wearing a light-colored shirt. Nelson ran to the corner and looked up Sutter for anyone matching the description. He spotted Dillon, who matched the description, walking up Sutter at a fast pace. Nelson ran up to him, tapped him on the shoulder, identified himself as an Alameda County Sherriff's deputy, and said he had reasonable cause to believe that Dillon had been involved in an incident in front of the Grand Hyatt. He told Dillon that he needed to return with him the Grand Hyatt to sort things out. At that point, Dillon pulled a pink purse from under his shirt, handed it to Nelson, and said, ―You got me.‖
As Nelson was walking down Sutter toward the hotel with Dillon, Dillon pulled out of Nelson's grasp, turned, and sprinted up Sutter. Hall was nearby but Nelson had not noticed him. As Nelson started to chase Dillon, Hall lowered his shoulder into Nelson's chest and knocked Nelson into the side of a building. Deputy Christiansen observed what happened and he and Nelson chased Dillon and subdued him when he tripped and fell a short distance away. San Francisco police officers stopped Hall nearby.
Antoinette made an in-field identification of both men around the corner from the hotel at 1:50 a.m. Antoinette identified her purse. It contained some makeup, but no money.
Hall lived in Suisun City with his girlfriend and two children. He testified that about 8:00 p.m. on December 31, 2005, he and his childhood friend, Tomelia Dillon, decided to drive to San Francisco. They drove first to the Tenderloin area where they bought some liquor and drank some with friends they ran into, eventually meeting up with another friend, known to Hall as ―Mr. Chill.‖ Hall, Dillon, and Mr. Chill then walked toward the Union Square area and headed toward the Embarcadero. They heard chimes ringing in the new year before reaching the Embarcadero.
Eventually, the trio headed back up Market Street. Dillon was acting very ―forward‖ and ―abrupt‖ with people, causing Hall to actually apologize for him a few times. Hall felt ―buzzed‖ from the alcohol he had consumed, but not heavily drunk. Hall first saw Antoinette B. standing alone near Sutter and Market Streets holding a champagne glass. She appeared to him to be ―real bubbly, real.... Just, like, a really nice person.‖
After Dillon and Mr. Chill began talking to Antoinette, Hall joined them. They had a pleasant conversation and were flirting with each other. They were standing perhaps six inches apart, facing each other. At some point, she turned around and backed into him. He put both of his arms around her abdomen. She grabbed one of his hands with a gentle touch and began to rub it against her belly. Hall began to slide his left hand down the front of her pants until Antoinette said, ―Stop.‖ When she said that, Hall immediately took his hand out and backed up. He had gotten his hand under her pant line only up to his knuckles when she told him to stop and he withdrew his hand. Hall had not unbuttoned or unzipped Antoinette's pants. He had meant to stick a finger in her vagina, ―[i]f it ever got that far.‖
When Hall backed away from her, Antoinette looked at him and laughed. Hall said, ―Okay, whatever.‖ After that, Antoinette turned away from him and crossed the street. Hall started walking up Sutter to Montgomery where he saw Antoinette across the street, walking with Dillon. It looked like they were talking, but Hall could not really tell. When they got to Stockton and Sutter, Hall was about 40 feet behind them. He noticed something was going wrong. He could not really tell what led to it, but he saw Antoinette swing a purse at Dillon. Dillon then grabbed the purse, she started to run toward the Hyatt hotel, and Dillon ran after her. Hall ran to see what was going on and saw Antoinette on the ground with a security guard attending to her.
Hall went to look for Dillon and spotted him running away from the Hyatt with someone running after him. Hall started walking in their direction. He saw Dillon walking back toward the hotel with the man who had been chasing him. As the two of them came by Hall, Dillon spun around Hall and started running back up the block. Hall felt someone bump him from the back. He saw the man who bumped him fall against the wall and then take off after Dillon. A few minutes later, Hall was detained by some motorcycle officers.
Dr. Nikolas Lemos is the forensic laboratory director and chief forensic toxicologist for the Office of the Chief Medical Examiner for the City and County of San Francisco. Lemos testified that Antoinette B.'s urine sample revealed that in the time frame of her encounters with Dillon and Hall, she had taken an undetermined amount of cocaine. This could have come from cocaine-laced marijuana that Antoinette testified she used several days before the incident, although Lemos did not consider this likely.
Antoinette also used marijuana, but it was possible she had ingested it several days before the incident.
The level of alcohol found in Antoinette's urine indicated that she had a blood alcohol level of 0.17 percent around 1:30 a.m. on New Year's morning. Lemos estimated that to arrive at that level of alcohol, Antoinette had to have consumed between eight and one-half and nine alcoholic drinks, each containing one and one-half ounces of 80 proof alcohol. This meant that Antoinette was intoxicated at the time of her encounters with Hall and Dillon at a level at which the average person's inhibitions are depressed, and their ability to process stimuli, to understand and respond to what is going on around them, and to judge and remember a situation are all impaired.
Stephen T. Conley, Jr., a hotel owner who knew Hall for 17 years and served as his mentor in a youth program testified that Hall was ―incredibly honest,‖ had a ―deep conscience,‖ and knows when he's done something wrong. Conley further testified that he knew Hall was not aggressive with women and in fact is ―sort of the opposite.‖ Vanda Marlow, another mentor of Hall's, had opinions similar to those expressed by Conley.
Lateefah Simon, an old friend of Hall's and the director of the San Francisco District Attorney's Office's placement program for first offenders testified that Hall was a person of honesty and integrity. She had never observed Hall to behave in an aggressive, assaultive, or inappropriate manner with women.
C. Verdicts, Sentences, and Appeal
The jury returned verdicts finding Hall not guilty of forcible sexual penetration with a foreign object as charged in count I, and not guilty of the lesser included offense of attempted sexual penetration with a foreign object. However, the jury did find Hall guilty of the lesser included offense of assault with intent to commit penetration of the genital opening of another person by a foreign object (§ 220). On count II, the jury found Hall not guilty of sexual battery.
Dillon was found not guilty of second degree robbery in count III, but the jury found him guilty of the lesser included offense of grand theft from the person (§ 487, subd. (c)). Dillon was found guilty as charged on counts IV and V (assault by means likely to cause great bodily injury, misdemeanor battery). The trial court dismissed ...