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The People v. Danteria Lavar Wesley

December 1, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANTERIA LAVAR WESLEY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. Affirmed. (Super. Ct. No. SCD206692)

The opinion of the court was delivered by: O'rourke, J.

P. v. Wesley CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted Danteria Lavar Wesley of assault with intent to commit rape (Penal Code,*fn1 § 220, subd. (a); counts 1 and 3); attempted forcible rape (§§ 261, subd. (a)(2) and 664; count 2); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); counts 4 and 5); and indecent exposure (§ 314, subd. (1); count 6). The jury also found true the allegations that he personally inflicted great bodily injury (§ 12022.8; count 2; § 12022.7, subd. (a); counts 3, 4 and 5; and § 1192.7, subd. (c)(8); counts 4 and 5); and personally used a deadly weapon (1192.7, subd. (c)(23); count 5).

The court sentenced Wesley to 22 years in prison as follows: the upper term of 6 years each on counts 1 and 3; plus the upper term of 4 years on count 5; plus 3 years each on two of the section 12022.7, subd. (a) enhancements. The sentences on count 2 and enhancements under sections 12022.8 and 12022.7, subdivision (a) were stayed pursuant to section 654. The court sentenced him to 6 months local time for the count 6 misdemeanor conviction, for which he received credit for time served.

Wesley contends the trial court prejudicially erred in denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806, 819 (Faretta) and in admitting a statement as a spontaneous declaration under Evidence Code section 1240; and, insufficient evidence supported his indecent exposure conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 18, 2007, at approximately 4:30 p.m., Wesley entered the lobby of a downtown San Diego hotel, where C.R. and N.A. worked as receptionists, and made a reservation with C.R. Afterwards, C.R. entered the office of E.S., the general manager. A video surveillance camera shown to the jury captured Wesley jumping over the counter and entering the office. C.R. and E.S. screamed and E.S. ran out of the office. Wesley cornered C.R., asking, "You want some," which C.R. interpreted as a sexual comment. C.R. begged him not to do anything to her and escaped to the laundry room with E.S., but he followed them.

E.S. told C.R. to call 911 and say Wesley had a gun, because she wanted a quicker police response. C.R. threw a fan at Wesley and went to a next door deli to call 911. C.R. was scared and told the 911 operator E.S. was being raped, and Wesley had a gun. Meantime, Wesley fought with E.S., exposed his penis to her and put it close to her face. He hit her on the face and between her legs and tried to pull her pants down.

N.A. got sticks from Magsaysay Holper, the deli owner. She hit Wesley, who was laughing and forcing open the laundry room door while C.R. and E.S. pushed to close it. Wesley managed to enter the laundry room. Wesley dragged E.S.'s foot while N.A. tried to pull her out of the room.

Holper went to the laundry room and saw Wesley on top of E.S. Holper hit him with a stick and jumped on top of him, freeing E.S. to leave with N.A. E.S.'s face, tongue and lip were bleeding, and she was treated at the hospital for her injuries, including a broken nose. Holper and his wife struggled with Wesley, who injured them both with the sticks.

Shortly after 4:45 p.m., San Diego Police Department Officer Brian Keaton responded to the hotel and saw Wesley hitting Holper in the laundry room. Officer Keaton subdued Wesley, whose penis was visible through his unbuttoned and unzipped pants.

At approximately 4:40 p.m., San Diego Police Department Officer Tristan Schmottlach was called to report to the hotel and arrived there shortly afterwards. He interviewed E.S., who was crying and said many times, "He tried to put his penis in, he tried to put his penis in." C.R. confirmed that Wesley tried to pull down E.S.'s pants in the laundry room.

DISCUSSION

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