The opinion of the court was delivered by: Nicholson, Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 defendant Ricardo Herrera Rangel of aggravated kidnapping (Pen. Code, § 209, subd. (b)(1)),*fn1 rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), and assault with the intent to commit rape (§ 220). The jury also determined as enhancements that defendant, in order to commit rape and penetration by a foreign object, moved the victim in a manner which substantially increased the risk of harm (§ 667.61, subd. (d)(2)), and that defendant kidnapped the victim for the purpose of committing rape, oral copulation, and penetration by a foreign object. (§ 667.8, subd. (a).) The jury acquitted defendant of one count of attempted robbery (§§ 664, 211), and found not true an allegation that defendant moved the victim for the purpose of committing oral copulation.
The trial court sentenced defendant to a state prison term in the aggregate of 68 years to life, calculated as follows: the middle term of six years for the rape plus 25 years to life for the associated movement enhancement; the middle term of six years for the oral copulation conviction; and the middle term of six years on the foreign object penetration conviction plus 25 years to life for the associated movement enhancement.
Pursuant to section 654, the trial court stayed the following prison terms: a term of life with the possibility of parole for the aggravated kidnapping conviction; a four-year term on the assault conviction; and three separate nine-year terms for the kidnapping enhancements.*fn2
Defendant appeals and alleges the following errors:
1. The evidence was insufficient to sustain the conviction for aggravated kidnapping and the true findings on the movement and kidnapping enhancements, as the evidence did not show that defendant moved the victim more than an incidental distance or that he exposed her to an increased risk of harm;
2. The trial court erred when it excluded evidence of the victim's prior sexual conduct that was to show an alternate cause of a physical injury she suffered;
3. The trial court erred when it excluded evidence of a posting on the victim's Internet MySpace page after the attack that was to show the victim did not have a state of mind of someone who had recently been raped;
4. The trial court erred by not instructing on the lesser included offense of simple kidnapping where the defendant testified he and the victim had engaged in consensual sex; and
5. The trial court erred in sentencing defendant to full, separate and consecutive prison terms on the rape, oral copulation, and penetration convictions, as those offenses did not occur on separate occasions within the meaning of section 667.6, subdivision (d).
Finding no prejudicial error on any of defendant's grounds for appeal, we affirm the judgment.
19-year-old Mallory Doe was walking to work along South Main Street in Manteca about 7:00 a.m. on a cold December morning when she heard someone running up from behind her. Immediately someone wrapped their arms around her neck. Mallory tried to scream, but her assailant punched her in the lower lip of her mouth. The assailant, a male, told her not to say anything or else she would be hurt more.
The assailant put Mallory into a headlock and pulled her into an alley off the main road and behind a Social Security Administration building. He forced Mallory to stand in front of him in a dirt area with her back towards him and facing a brick wall and some bushes. He said if Mallory would keep quiet, "this would benefit" her.
The assailant stuck his right hand underneath Mallory's skirt, nylons, and underwear, and he inserted his fingers inside her vagina. As he did this, he asked Mallory how old she was and if she had a boyfriend. Mallory replied she was 19 years old and she had a boyfriend.
The assailant asked Mallory if she "liked to fuck." Mallory said she did not because she was undergoing treatment for the early stages of cervical cancer, and if the assailant did anything to her it would hurt. He told her to quit whining or else he would hurt her more.
Mallory then heard the assailant unzip his pants. He was still standing behind her with one hand around her neck so she could not move. He told her to take her left hand and rub his penis to get it hard. She did so. He told her if she hurt him, it would make things worse. He also said she had to get him hard or else she would have to give him "head" (oral copulation).
Mallory told the assailant she did not want to rub his penis. He told her to spit in her hand and keep rubbing. She continued to rub his penis, and then he told her she would have to orally copulate him for four minutes. When Mallory protested, he dropped the time to three minutes. She told him she did not want to do it, and he reduced the time to 30 seconds.
The assailant told Mallory to turn around. Before she could completely turn towards him, he pulled the collar of his jacket up to cover his mouth and part of his nose. Mallory could discern the assailant was a Hispanic or Latino male, about five feet 10 inches tall, with short black hair, buzzed on the sides but longer in the middle, and slicked back. He wore a dark-colored nylon track jacket, dark-colored pants, a belt, and light-colored sneakers. Mallory did not know the assailant and had never seen or met him in her life.
The assailant told Mallory to get down, and that she had better not hurt him or he would make things worse. Mallory kneeled down, and the assailant put his penis in her mouth. He kept a hand on the back of Mallory's head so she could not pull away. Mallory orally copulated him for about a minute until he told her to stop.
The assailant told Mallory to stand up. She did and turned back to face the wall. He asked her if she liked it "doggy style," and she said no. He stuck his hand down her skirt again and put his fingers inside her vagina. Then he put his hand underneath her shirt and bra and fondled her breast.
He then pulled down Mallory's skirt, nylons and underwear to her thighs, put his hand between Mallory's legs, and told Mallory to spread them. Mallory was scared, so she complied. The assailant pushed his pelvis into Mallory and attempted to insert his penis into her vagina. He inserted his penis part way, kept pushing for a little while, and then withdrew. Mallory was not sure if he ejaculated. Mallory asked if she could pull her skirt up, and he agreed.
The assailant asked Mallory if she had any money. She said she did not. The assailant said she had better not be lying. To prove she was not, Mallory said she would reach into her purse, grab her wallet, and show him she did not have any money. She did so, and then put the wallet back into her purse.
The assailant told Mallory to turn to the left. She did, and she heard him run away. She counted for 20 seconds, and then looked over to see if he was gone. She turned around, ran to the side of the Social Security office, and saw a woman there using her cell phone. Mallory told the woman she had just been raped. The woman, Lupita Torres, a Social Security Administration employee, called police. Torres testified that Mallory was crying, nervous, and "completely distraught." Torres also testified that a light in the alley was not working that morning, and the alley was dark.
Mallory gave police a description of her assailant. The description was broadcast to other patrol units in the area. Moments later, Manteca Police Officer Robert Armosino located a person matching the description of Mallory's assailant about one-half mile from the crime scene. The suspect was defendant. He was wearing a black sleeveless shirt with no jacket even though it was only 40 degrees outside.
Police transported Mallory to where defendant was being held. Mallory identified defendant as her assailant. Although he was not wearing a jacket, he had the same looking pants and shoes, and his hair matched what she had seen. Defendant was arrested.
Police recovered a black jacket hanging on the side of a dumpster about two blocks from where defendant was detained. When given the jacket, Officer Armosino noticed the jacket smelled of the same cologne that he had smelled on defendant and that was in a bottle of cologne he had found on defendant's possession.
At the crime scene, police noticed some shoe impressions in the area where Mallory had said the attack occurred. Manteca Police Officer Matthew Simpson visually compared the impressions with defendant's shoes. The impressions appeared to be the same pattern as those on the bottom of defendant's shoes. After examining a cast of the shoe impressions with defendant's shoes, a Department of Justice criminalist later concluded she could not exclude the possibility that the impressions at the crime scene were made by defendant's left shoe.
Mallory had told Manteca Police Detective Steve Beerman the distance defendant had moved her from the sidewalk to the alley behind the Social Security Administration building was a couple of feet. She testified at trial that she was moved approximately 10 feet. Investigating officers, however, determined the distance from the sidewalk to the crime scene where the shoe impressions were found was at least 53 feet.
Investigating police at the scene observed surveillance cameras mounted on the Social Security Administration building. One was on the back of the building facing the alley, and another was on the side of the building. However, no images of the assault were captured by the cameras on videotape.
A medical examination of Mallory disclosed a three-millimeter long mucosal tear of Mallory's posterior fourchette, i.e., "the rear most portion of the outer portion of the vagina." The examining physician, Dr. Douglas DeMartinis, stated the tear implied that some degree of force was applied to that particular area of the body. In Dr. DeMartinis's experience, the posterior fourchette was a common area to see injuries in women who had been sexually assaulted. He also agreed it was possible for a woman to have such a tear after consensual sexual intercourse, but he would not expect to see one after consensual intercourse.
Dr. DeMartinis did not notice any injuries to Mallory's mouth. However, prior to Dr. DeMartinis's examination, Detective Beerman had noticed the lower left side of Mallory's lip was swollen. Detective Beerman photographed the injury.
DNA analysis was performed on samples taken from both Mallory and defendant. Semen found on Mallory's underwear and on her vaginal swabs matched defendant's DNA profile. DNA from defendant's penile swab matched Mallory's DNA profile. Mallory's boyfriend was eliminated as a possible donor of the semen found on Mallory's underwear and vaginal swabs.
On the same day as the assault, Detective Beerman interviewed defendant at the police station. Defendant initially claimed he had been out that morning looking for his girlfriend's lost necklace when the police stopped him. He denied going to the shopping center where the Social Security Administration ...