APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed. (Super. Ct. No. SCD207535)
The opinion of the court was delivered by: Benke, J.
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In this case William Viltz was convicted of multiple crimes growing out of the kidnapping and rape of a prostitute. On appeal he contends the trial court should have instructed the jury on attempted rape as a lesser included offense of forcible rape and erred in instructing the jury with respect to the credibility of the victim and another witness who was also a prostitute. He also argues his counsel was ineffective in attacking the credibility of the two women. We agree that in light of Viltz's testimony the jury should have been instructed on attempted rape. The record, however, shows the jury entirely rejected Viltz's version of events and accepted the victim's version. Thus, the error was not prejudicial. We find no other instructional error and no deficiency in counsel's performance.
We also find that, contrary to Viltz's argument on appeal, the jury's verdict is supported by sufficient evidence and that the trial court did not abuse its discretion in sentencing Viltz.
A jury convicted Viltz of kidnap for ransom (count 2, Pen. Code,*fn1
§ 209, subd. (a)); forcible oral copulation (count 4, §
288a, subd. (c)(2)); forcible rape (count 5, § 261, subd. (a)(2));
attempted forcible rape (count 6, §§ 664, 261, subd. (a)(2)); making a
criminal threat (count 7, § 422); and evading a police officer with
reckless driving (count 10, Veh. Code, § 2800.2, subd. (a)). As to
those counts, the jury found Viltz personally used a dangerous or
deadly weapon (a pellet/BB gun) (counts 2, 6, and 7, § 12022, subd.
(b)(1); counts 4 and 5, § 12022.3, subd. (a)). The jury further found
as to counts 4 and 5 that Viltz kidnapped the victim substantially
increasing her risk of harm (§ 667.61, subds. (a), (c), (d)),
kidnapped the victim in violation of section 207, 208, 209, or 209.5
(§ 667.61, subds. (a),(c),(e)), and tied or bound the victim (§
667.61, subds. (a),(c),(e)).
The jury acquitted Viltz of one count of forcible oral copulation (count 1, § 288a, subd. (c)(2)), one count of robbery (count 8, § 211), and one count of assault by means likely to produce great bodily harm (count 9, § 245, subd. (a)(1).) As to one count of kidnapping for robbery or rape (count 3, § 209, subd. (b)(1)) the jury was unable to reach a verdict and the People elected to dismiss that count.
The court sentenced Viltz to an aggregate prison term of life with the possibility of parole plus 50 years to life, plus 14 years 8 months.
On June 27, 2007, at approximately 6:00 p.m. 20-year-old R.B. was working as a prostitute with her friend Jennifer T. in San Diego. The two women saw Viltz driving a Honda SUV in the vicinity of El Cajon Boulevard and began walking towards him. Viltz pulled over and R. got in his car.
Viltz told R. he "didn't have enough for a two-girl show" and drove off without Jennifer. A couple minutes after he began driving east on El Cajon Boulevard, Viltz pulled out his penis, apparently as a means of assuring R. that he was not an undercover policeman.
Viltz then asked R. to kneel down so the police would not see her in the car with him. R. complied with Viltz's request. Jennifer called R. to ask her if everything was alright. R. told Jennifer she was fine. Viltz told R. he knew of a location where they could go and then drove there. R. was not afraid of Viltz at that point.
R. testified that when they pulled up at the first location, they discussed her price and agreed on $100 for oral and vaginal sex. However, after they agreed on a price, Viltz pulled out what appeared to be a small handgun and told her he wanted oral and vaginal sex from her. Viltz told her if she refused, there would be "problems." As Viltz was talking to R., he was holding the gun in his left hand with the barrel pointing towards the front windshield. R. took a condom out of her bra, put in on Viltz's semi-erect penis and began performing oral sex on him.
While R. was performing oral sex on Viltz, he was looking in the rear view mirror and told R. that he was paranoid and did not feel comfortable because there were other people in the area. Viltz was having a hard time getting aroused and was only partially erect.
While they were at the first location, Viltz told R. to call her pimp and tell the pimp that Viltz wanted $5,000 or R. would die. When R. told Viltz she did not have a pimp, Viltz told her to call Jennifer and tell Jennifer to get him $1,000. At that point, R. was afraid she was going to die. R. begged Viltz not to kill her and, although it was not true, she told him she had two children.
R. called Jennifer and told her that Viltz wanted $1,000 from her. R. told Jennifer that Viltz had a gun. When Jennifer told R. that she did not have $1,000, Viltz told R. to tell Jennifer to start finding prostitution customers and earn the money. After R. talked to Jennifer, Viltz told R. to turn over and he tied her wrists behind her back with his belt. Viltz then told R. to kneel down on the floor with her head on the seat. When she complied, he put a small wool blanket or jacket over her head. Viltz then began driving to a second location. During the ride, Viltz told R. this was not a joke. He also spoke with Jennifer on the phone. After what sounded to R. like they had driven on a freeway and after about 10 minutes had passed, they drove on a dirt road. Viltz took the jacket and belt off R., pulled his pants down, and began masturbating.
During this time, the gun was out of R.'s sight, although she believed it was by the driver's side door.
When the car stopped, Viltz told R. to take off her clothes, put her hand over her eyes and not breathe. R. was scared. It was dark and the location "just seemed like somewhere where he was going to kill me." She took off her clothes and sat in the passenger seat, facing Viltz. While Viltz was still masturbating, Jennifer called and Viltz told R. to tell Jennifer that Viltz was "fucking" her.
Viltz then climbed over to the passenger seat and got on top of R. Viltz tried to have sex with R., but his penis was not erect, so he could not penetrate her. Viltz asked R. for another condom and told R. to give him oral sex, and she did. Viltz then got out of the car, went over to the passenger side, and told R. to bend over. R. bent over with her buttocks facing out of the car. Viltz then had vaginal sex with R. from behind for a few minutes while standing outside of the car. Viltz ejaculated, took the condom off, and threw it by the side of the car.
After raping R., Viltz went to the back of the car near the trunk, made a prayer gesture with his hands and pointed the barrel of the gun at his own head. At that point, Jennifer called again and R. answered the phone. Jennifer told R. she had $200 in her purse, but that her purse was locked in R.'s car and R. had the keys. When R. reported this to Viltz, Viltz responded that Jennifer should keep working as a prostitute to earn the $1,000 Viltz was demanding.
Viltz then told R. to put her clothes back on. He retied her hands behind her back, put her back on the floor of the car with her head on the seat, and put the blanket or jacket back over her head. However, this time the blanket or jacket was positioned so R. could still see Viltz.
Viltz then called Jennifer and told her to go to a Carl's Jr. restaurant where she would find the keys to R.'s car in the women's bathroom. R. told Viltz where she parked the car which had Jennifer's purse and the $200 inside. The two headed to the laundromat where the car was parked. Once there, Viltz took the key and got R.'s purse from under the driver's seat. R. told him that was the wrong purse and that Jennifer's purse was under the passenger seat. Viltz then retrieved Jennifer's purse, took what R. thought was $200 out of Jennifer's wallet, and put it in his pocket.
Viltz started the car and drove out of the parking lot. He told R. that he was going to let her go, but not at the laundromat. He said he was going to put the keys somewhere, tell Jennifer where they were and tell Jennifer to pick up R.
However, Viltz saw a police car behind him and said "Oh, shit." As he drove, Viltz untied R. and told her to tell police he was just giving her a ride. He also gave her car keys. R. sat up on the passenger seat and grabbed both purses, holding them in her right hand. At that point, R. heard the police sirens and saw the lights. Viltz sped away from the police. He entered the Interstate 15 (I-15) freeway and quickly got off. Viltz then drove down an alley, where R. saw Viltz open a door and throw an object out of the car; R. thought it was the gun.
Viltz then told R. to jump out of the car or he was going to shoot her. R. had the door open, but was scared to jump because the car was going so fast. According to R., as the car made a turn, Viltz pushed R. out of the car and she rolled into a truck.
As a result of being pushed out of the car, R. sprained her ankle, got a large bloody bruise on her left shoulder, bruised her knees, injured her wrist, and got a large knot on her head where it hit the truck. R.'s feet were scraped up from sliding on the ground. A police officer who found R. called an ambulance and she was taken to the hospital and then to a rape victim center.
R. lied to police who interviewed her at the hospital. She told them that she was not a prostitute and had not voluntarily entered Viltz's car but that he had a gun and forced her to get in the car. R. lied because she thought the officers "seemed more worried about me working as a prostitute than what had happened." She thought because she was a prostitute, the officers were taking the situation very lightly, which made her feel uncomfortable. R. learned that Jennifer called R.'s boyfriend's mother, that the boyfriend's mother had called police and the police knew from this phone call that R. was a prostitute.
At the rape center, R. spoke to a nurse about what had happened. She also lied to the nurse, telling her she was not a prostitute and lied about how she came to be inside Viltz's car because the same officer was present when the nurse was asking her questions about what happened.
The next day, Detective Bernier contacted R. and took her to the district attorney's office. Detective Bernier told R. she knew she was a prostitute and what she was doing in the car. R. told her the truth about what happened and about how she had lied to the police officer and to the nurse.
2. Marie L. and Jennifer T.
Marie L. is the mother of the man who was R.'s boyfriend on the evening the assault occurred. By the time of trial, R. had married her boyfriend and Marie L. had become R.'s mother-in-law.
On the evening of the assault, Jennifer, who was crying, called Marie L. and told her R. was in fact a prostitute and was being held for ransom. Marie L. had not been aware R. was a prostitute. Jennifer told Marie L. that Viltz had called saying he wanted $1,000 by midnight or he was going to kill R.
Marie L. called 911 and told the operator R. had been kidnapped. After Marie L. got off the phone with the police, she called R.'s cell phone. Viltz answered the phone and asked if it was Jennifer. Marie L. told him no, that she was R.'s mom. Marie L. then heard R. in the background, screaming that Viltz had a gun and to give him the money.
Officer Lamar Rozsa noticed a Honda Element that appeared to match the description of the car involved in the kidnapping reported by Marie L. Rozsa followed the car for about a half mile, then watched it run a red light. Rozsa then put on his lights and sirens and a pursuit ensued. Rozsa saw the passenger door open slightly and it looked like something fell out of the car. Rosza never saw the driver's side door open. Then a woman fell out of the car. Rozsa could not tell if she exited the car on her own or was pushed out. At the time, the car was traveling approximately 25 miles per hour and was making a turn. Rozsa believed that the force of ...