Superior Court of Alameda County, No. C156325, Trina Thompson-Stanley, Judge. (Alameda County Super. Ct. No. C156325)
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Tyrone Reed was convicted by a jury of four counts of aggravated sexual assault of a child (Pen. Code, § 269),*fn2 one count of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible rape (§ 261, subd. (a)(2)), and one misdemeanor count of child abuse (§ 273a, subd. (b)). Reed was sentenced under the three strikes law to a term of 230 years to life in state prison. On appeal, Reed contends that: (1) substantial evidence does not support his convictions for aggravated sexual assault of a child; (2) the trial court erred by failing to inquire into the basis for a new trial motion asserting incompetence of counsel; (3) the trial court improperly sentenced him to consecutive terms for the aggravated sexual assault convictions; and (4) his aggregate sentence of 230 years to life constitutes cruel and/or unusual punishment. We agree in the published portion of the opinion only with Reed's second claim. We will therefore remand the matter to the trial court with directions to conduct a hearing on Reed's claim of ineffective assistance of counsel and for such further proceedings as may then be required.
I. Factual and Procedural Background
A second amended information charged Reed with aggravated sexual assault of a child-rape (§§ 269, subd. (a)(1), 261, subd. (a)(2); count one), forcible rape (§ 261, subd. (a)(2); count two), aggravated sexual assault of a child-rape (§§ 269, subd. (a)(1), 261, subd. (a)(2); count three), forcible rape (§ 261, subd. (a)(2); count four), aggravated sexual assault of a child-sodomy (§§ 269, subd. (a)(3), 286, subd. (c)(2); count five), forcible sodomy (§ 286, subd. (c)(2); count six), aggravated sexual assault of a child-oral copulation (§§ 269, subd. (a)(4), 288a, subd. (c)(2); count seven), forcible oral copulation (§ 288a, subd. (c)(2); count eight), felony child abuse (§ 273a, subd. (a); count nine), forcible oral copulation (§ 288a, subd. (c)(2); count ten), and forcible rape (§ 261, subd. (a)(2); count eleven).*fn3
As to all charges, it was alleged that Reed had a prior conviction for shooting at an inhabited dwelling (§ 246), which was a "strike" within the meaning of section 1170.12 and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). It was further alleged that Reed had a prior conviction for battery with serious bodily injury (§ 243, subd. (d)), which was a strike within the meaning of section 1170.12 and a prior serious felony conviction with the meaning of section 667, subdivision (a)(1). It was further alleged that Reed had served two prior prison terms within the meaning of section 667.5, subdivision (b). Finally, it was alleged that Reed had a prior conviction for sale/transportation/offer to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)), for which Reed had received probation.
Reed was tried by jury and convicted on counts one, three, five, seven, ten, and eleven. The jury found Reed not guilty of counts two, four, six, and nine. With respect to count nine, the jury found Reed guilty of the lesser-included offense of misdemeanor child abuse (§ 273a, subd. (b)). Count eight was dismissed. After a bench trial, the court found the prior conviction allegations to be true.
On January 30, 2009, Reed was sentenced, pursuant to the three strikes law, to state prison for the following consecutive terms:
( ( ( 45 years to life on count one; (2) 45 years to life on count three; 45 years to life on count five; (4) 45 years to life on count seven; 25 years to life on count ten; and (6) 25 years to life on count eleven. Reed was also sentenced to a concurrent one-year term in county jail on count nine. The aggregate term of Reed's sentence is 230 years to life. This timely appeal followed.
Because the sufficiency of evidence to support some of the convictions is at issue, it is necessary to present a somewhat detailed statement of the evidence presented at trial. Additional facts are contained in the discussion of issues to which they relate.
Dianne Doe*fn4 testified that, in September 2006,*fn5 she moved from Reno to Oakland after her mother had a stroke and a heart attack and became unable to care for her. When Dianne first arrived in Oakland, she stayed with her maternal grandmother for a couple of days. After that, Dianne stayed a week at the California Hotel with Reed, who Dianne identifies as her father.*fn6 Dianne testified that, after that week, she went to stay with her father's sister, Keisha. Dianne could not remember how long she stayed with Keisha, but testified that it was about a month or two. Dianne was enrolled in school about a month after she arrived from Reno. After the period with her aunt, Dianne went to live with Reed at the California Hotel, where she remained until February 5, 2007. Dianne testified that she could not remember exactly when she returned to the California Hotel, but that she did so before her 14th birthday on November 10, 2006. Dianne remembered that Reed bought her a bottle of Hennessey for her 14th birthday.
Dianne testified that, after she returned to the California Hotel to live with Reed, she shared a hotel room with Reed, Reed's "baby mama" (Bahati), and Bahati's father. Reed was physically violent with Dianne. One day, Dianne had been at a school program, but Reed believed she had instead been with some boys. Dianne had a teacher talk to Reed to prove she was at the school program. That night, Reed slapped Dianne hard in the face, with an open hand.
One night, Dianne was "[h]alf asleep and half awake" in the bed with Reed, while Bahati's father slept on the couch. Bahati was not in the room that night. Dianne was wearing red pajama pants, underpants, and a white t-shirt to bed. Reed partially removed Dianne's pajama pants, moved her underwear to the side, and put his fingers inside Dianne's vagina. Reed asked Dianne if she was a virgin. Reed told her " `You ain't no virgin, because I was fingering the whole time while you were asleep.' " Dianne was surprised and scared. Reed then got on top of Dianne and got close to her face, telling her that if she was lying about being a virgin, he was going to slap her. Reed then said: " `Well, since you gave my body up first, I am going to have to take it, because a father is supposed to have his child's body.' " Dianne testified that at this point she "was too scared to think" and that she "tried to get up a little bit," but was unable. Next, Reed put his penis in Dianne's vagina. Dianne testified that she was scared of Reed and that she did not want him to touch her. Reed did not use a condom.
Dianne testified that Reed stopped when Bahati knocked on the door of the hotel room. Dianne ran into the bathroom and cried. When Dianne came out of the bathroom, five or ten minutes later, Bahati was in the hotel room. Dianne testified that this occurred on October 8. Dianne remembered the date because Reed had told her that Bahati was getting out of jail on October 8. When Bahati knocked on the door that night, Dianne believed she was coming home from jail.
Dianne testified that, the next night, Reed touched her vagina with his fingers. While Dianne was laying on her side in the bed, Reed pulled her red pajama pants down, pulled her underwear to the side, and tried to put his penis in Dianne's anus.*fn7 Dianne testified that Reed's penis went in a little, but "didn't go all the way in." Dianne pushed Reed away, but he pushed her back. Dianne was scared. Reed did not use a condom.
A couple of nights later, Dianne was asleep, as were Bahati and Bahati's father, when she was woken by Reed. Reed got up off the bed and made a circular motion with his finger that indicated to Dianne that she should roll over and get up. Dianne got up and put her hands on the bed because she was scared. While Dianne was bent over, Reed put his penis in her vagina from behind. Dianne testified that she did not want Reed to do this and that she was scared. Dianne tried to touch Bahati to wake her up, but was unsuccessful. Reed did not use a condom.
During that same week or two-week period, while neither Bahati or Bahati's father were in the room, Reed grabbed Dianne, picked her up, put her on the bed, pulled her pajama pants down, and pulled her underwear to the side. Reed then touched Dianne's vagina with his tongue. Dianne was afraid of Reed.
Dianne testified that she turned 14 on November 10 and that all four of the previously described incidents occurred before her 14th birthday. At some point, Reed told Dianne that "[i]f [she] ever told on him, he was going to sock [Dianne] in [the] face where [she would] have to eat out of a straw, and people go down there and kill [her] mama." Dianne believed Reed's threats. When she was growing up, Dianne had seen Reed beat her mother "like she was a dog."
One day after Dianne turned 14, Reed came to Dianne's school to pick her up because she and another girl were about to get into a fight. When they returned to the California Hotel, Reed whipped Dianne with a belt approximately 25 times. Dianne testified that Reed left bruises on her thighs and arms and caused a knot on her head. Dianne did not fight back because she knew she "would have been defeated."
The next day Dianne did not go to school. Reed picked out and bought some new panties for her. Afterwards, back at the California Hotel, Reed had Dianne model the underwear. Reed then put his mouth on Dianne's vagina. Dianne did not want Reed to do so. She was scared.
On the night of February 4, 2007, while everyone else in the room was asleep, Reed forced his penis inside Dianne's vagina. This time, Reed was rougher and it "[d]idn't feel so good." Dianne did not want Reed to do this and asked him to stop. Reed did not stop. Afterwards, Dianne experienced pain when she closed her legs and a burning sensation while urinating.
On February 5, 2007, Dianne called Reed from school and falsely told him that she had an after-school program so that he would not come to pick her up after school. Instead, Dianne called her maternal grandfather and had him pick her up. Dianne told her grandfather that Reed had been beating her and touching her private parts. Dianne's grandfather took her to the Oakland Police Department, where she gave a statement. Dianne was also taken to the hospital where a sexual assault exam was performed and her underpants (the same pair she had been wearing the night before) were collected. Photographs were taken of Dianne's body, which showed bruising on her right arm, at the bicep and forearm. The sexual assault examiner observed these bruises, as well as resolving bruises on the inside of both of Dianne's knees and a lump on her forehead. An abrasion to Dianne's cervix and blood were also noted. The abrasion was consistent with something external having entered the vagina. Vaginal and oral swabs were collected from Dianne and placed into a sexual assault evidence collection kit. Dianne's sexual assault kit, containing the swabs and the underwear, was transported to the Oakland Police Department.
Reed was arrested that evening at the California Hotel. Officers collected a pair of red pajama bottoms and a t-shirt from the room.*fn8
An oral swab was collected from Reed. The swab was placed into a sexual assault kit that was provided to the Oakland Police Department.
The criminalist at the Oakland Police Department Crime Laboratory, who performed the deoxyribonucleic acid (DNA) analysis in this case, testified that sperm and epithelial cells were found on the pair of underpants contained in Dianne's sexual assault kit. DNA from the sperm on the underpants was extracted and analyzed. A genetic profile for the sperm was generated and compared to a known DNA profile for Reed. The profiles matched. This particular nine locus profile occurs in approximately one in 25 trillion African Americans. The DNA profile of the epithelial cells taken from the underpants was compared to a known DNA profile for Dianne. The profiles matched.
Sperm and epithelial cells were also found on one of the vaginal swabs. It was not possible to separate out the sperm from the epithelial cells. The criminalist was unable to obtain a full profile for the male donor to the mixture, but she was able to obtain a partial profile. The partial profile was consistent with Reed's reference profile. The criminalist was able to obtain a full profile for the epithelial cell fraction from the vaginal swab. The profile matched Dianne's known profile.
Sperm and epithelial cells were also found in two stains on the pajama pants. DNA from the mixtures on the pajama pants was extracted and analyzed. The profiles were consistent with the reference profiles for Dianne and Reed. No evidence of a third person's DNA was found in any of the samples.
Reed's grandmother (Dianne's paternal great-grandmother), Lois, testified that Dianne came to Oakland "around September a couple of years ago. Maybe last year." Lois also testified that when Dianne first arrived she stayed at her house for a few days. According to Lois, Dianne then went to live with Reed's sister, Keisha.
Keisha was "not sure" how long Dianne stayed with Lois, but testified that it could have been "about a month" or a little shorter. Keisha also testified that Dianne next lived at her house for "[t]wo months, roughly" before she went to stay with Reed. After Dianne had been living with Keisha "[a]bout two weeks," Keisha registered Dianne for school.
Keisha's daughter, Unique, testified that on her birthday, October 7, Dianne was living with her and Keisha. Unique remembered this because Dianne went to a Chris Brown concert with Unique for her birthday.*fn9 Unique also testified that Dianne stayed at her house for "[p]robably about two months" after October 7. Reed did not testify.
The parties stipulated that Reed was born on February 25, 1969. The parties also stipulated that Dianne was enrolled in school on September 26, that her final day of enrollment was February 7, 2007, and that she had unexcused full-day absences on October 25, October 26, October 27, November 6, November 17, and December 11. Dianne also had unverified full-day absences on December 4, December 5, December 7, January 17, 2007, January 22, 2007, and February 6, 2007. It was also stipulated that ...