APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge. (Super. Ct. No. F07908591).
The opinion of the court was delivered by: Dawson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Following a jury trial, Anthony Ireland (appellant) was convicted of four counts of forcible rape (Pen. Code, § 261, subd. (a)(2)).*fn2 As to each count, the jury found true the allegations that appellant used a deadly weapon (§ 12022.3, subd. (a)) and that he committed the crimes against multiple victims and with a deadly weapon (§ 667.61, subd. (e)(4), (5)). The trial court sentenced appellant to a total term of 100 years in state prison, consisting of four consecutive 25-year-to-life terms.
On appeal, appellant contends: (1) there is insufficient evidence to sustain his forcible rape convictions; (2) CALCRIM No. 1000 as given was insufficient; (3) CALCRIM No. 250 was given in error; (4) the trial court erred in failing to instruct on assault and battery as lesser included offenses; (5) the trial court erred in admitting evidence of an uncharged act; (6) CALCRIM Nos. 1191 and 2616 were given in error; and (7) trial counsel was ineffective. We find no prejudicial error and affirm.
Each of appellant's four convictions of forcible rape involved a different victim but a similar scenario.
In late October of 2007, V.B. was working as a prostitute on Motel Drive when appellant, in a four-door burgundy car, approached and asked her for a "date," which she described as an agreement to have sex for an agreed-upon amount of money. The two agreed on a price of $40. V.B. suggested they go to her motel room but appellant declined, saying he had once been robbed in a motel room. He suggested they drive down the street and park, and V.B. agreed. They parked in a driveway near railroad tracks.
Appellant told V.B. to get into the back seat of the car, which she did. When appellant entered the back seat, V.B. felt a metal knife against her neck. V.B. began to cry and begged appellant "please don't hurt me." V.B. testified she was afraid and did not want to die. Appellant told her to be quiet and that he would not hurt her if she cooperated. V.B. was afraid that, if she resisted, appellant would cut or stab her.
Appellant then had vaginal intercourse with V.B., while holding the knife to her throat. V.B. described the knife as a big butcher knife with a seven- to nine-inch blade and a wooden handle. Appellant told her to make noises like she enjoyed the sex act, but instead she cried "loudly" the entire time. After appellant ejaculated, he exited the car and threw the condom he was wearing into the bushes. When V.B. asked if she could leave, appellant said yes. V.B. then exited the car and ran. Appellant did not pay her.
V.B. had never met appellant prior to the incident. She did not consent to the sexual act as it happened, and she did not agree to the use of the knife when she got into the car. V.B. did not report the incident to the police at first, because she was a prostitute.
In late September or early October of 2007, J.W. was working as a prostitute when appellant, in a four-door burgundy car, pulled up next to her and asked for a "date." J.W. was tired and ready to go home, so she quoted him a $100 price, thinking he would not agree to it. But appellant agreed to the price, and J.W. got into the car. J.W. told appellant she had a motel room, but he said he had a bad experience in a motel room, and they instead drove to a location five minutes away and parked.
The two agreed to have sex in the car, so J.W. climbed into the back seat. Appellant got out of the driver's seat and walked to the back. When he opened the back door, J.W. asked him for her money. Appellant said, "oh, oh, yeah," reached toward the waist of his pants, and pulled out a large knife with a 10-inch blade.
Appellant got into the back seat and on top of J.W. and held the knife to the side of her neck. When J.W. asked appellant what he was doing, he told her to "shut up." J.W. felt that appellant had an erection and asked him to put on a condom. He told her to put it on him. J.W. was afraid appellant might "slice [her] neck off." She asked appellant not to hurt her. She cooperated because she was fearful she might die.
Appellant held the knife to J.W's throat the entire time. She was very frightened and asked appellant to remove the knife from her neck. But appellant said "no" because "'you might scream.'" He told her not to scream or make any sudden movements or he would use the knife. J.W. did not scream, because she was afraid appellant might stab her in the neck.
Appellant had sex with her. After he ejaculated, he got out of the car and threw the condom on the ground. He did not pay her. J.W. never agreed to have sexual intercourse with appellant while he held a knife to her throat.
J.W. did not report the incident to the police, but she did tell others on the street about the incident. After the incident, she saw appellant in his car at a liquor store. She yelled at him to leave and told other women in the area, "that's him, don't get in his car."
J.W. was later contacted by the police and asked if she knew anyone bothering the women in the area. She related to them what had happened to her.
In October of 2007, A.H. was working as a prostitute when appellant, in a red four-door car, pulled up and asked her for a "date." They agreed on $60. A.H. got into appellant's car and they drove to a cemetery and parked.
Once there, they both got out of the car and A.H. got into the back seat. A.H. told appellant she needed her money. He told her she would get it but, when he got into the back seat, he put a big kitchen knife to her throat. A.H. said "no," but appellant held the knife to A.H.'s throat, told her to put a condom on him, and then told her to remove her pants and get on her knees. She complied because she was afraid he was going to kill her. She didn't say anything else because she was too afraid. Appellant then had vaginal intercourse with her, after which she got out of the car and left. Appellant did not pay her.
A.H. had never met appellant before the incident and did not agree to the use of the knife. She did not report the incident because she had been "hurt" when she was younger and the police had done nothing about it. Here, she was later contacted by police and told them what had happened.
In November of 2007, C.S. (sometimes known as Baby), who was 15 years old at the time, was working as a prostitute when appellant, in a four-door burgundy car, asked her for a "car date." They agreed on $80. C.S. suggested they go to a hotel, but appellant suggested they drive to a cemetery, and C.S. agreed.
Once there, C.S. got out of the car, got into the back seat, and asked appellant for her money. Appellant acted as if he were going to get the money from his pocket but, instead, pulled out a large knife with an eight- to 10-inch blade from the front of his pants. Appellant put the blade to C.S.'s neck and said, "do what I say and you won't get hurt." She was "shocked" and "scared" that she might die. She requested that he use a condom, and appellant complied. Appellant then had vaginal intercourse with her. He held the knife to her throat the entire time. C.S. did not agree to the use of the knife, but she thought appellant would cut her if she did not comply. After the incident, C.S. asked appellant for a ride back and he agreed. Appellant did not pay her.
About a week later, C.S. was on the street when she was contacted by police because it was late and she looked young. One of the officers mentioned there had been rapes in the area. C.S. described what had happened to her and gave the officer a description of appellant, his vehicle, and the assault.
In November of 2007, Detective Neal Cooney, a sexual assault investigator, received information from another officer informing him of sexual assaults on female prostitutes. The description of the assailant, his vehicle, and his modus operandi were similar.
On November 6, 2007, while conducting surveillance, Detective Cooney struck-up a conversation with J.W., who was walking the street. She explained she had been raped at knifepoint a few weeks earlier. Her description of the suspect was similar to that already received.
Later that evening, Detective Cooney observed a vehicle that fit the suspect's vehicle description. Detective Cooney initiated a traffic stop. Appellant was the only occupant of the vehicle. Appellant consented to a search, but told Detective Cooney that he had a knife on his right side. Cooney removed the knife from appellant's waistband and arrested appellant.
V.B., J.W., and A.H. subsequently identified appellant in a photographic lineup as the man who raped them.
Detective Cooney and another officer interviewed appellant at the police station. The interview, which was recorded, was subsequently played for the jury during trial. Appellant told the officers he carried a butcher knife for protection. He also said he had had sex with three or four prostitutes, whom he subsequently described as one blonde, one Asian, and two Black females.
Appellant initially claimed all of the women consented to sex and that he used the knife with one, the blonde, because it turned her on. He denied putting it to her neck to hurt her but said he rubbed it on her body.
After further questioning, appellant admitted he used the knife on "Baby." Appellant told her he was going to use the knife, but she did not want him to do so. He then told her, "well I'm going to do it I was just like let me do it." After he promised he wouldn't kill her, she ...