Super.Ct.No. RIF125676 APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with directions.
The opinion of the court was delivered by: Richli J.
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Defendant's live-in girlfriend called 911; she told the police officer who responded that defendant had choked her with a scarf and with his hands, threatened to kill her, raped her, and forced her to orally copulate him. She had marks on her neck consistent with being choked; she also had a black eye.
Whenever the girlfriend talked to defense counsel, defense investigators, or defendant's mother, however, she maintained that the sex acts had been consensual. On occasion, she also told them that defendant choked her at her request, for erotic purposes, and that she hit defendant first, before he hit her in the eye. Finally, at trial, she affirmatively testified that the sex acts had been consensual; however, she admitted that defendant did choke her and punch her in the eye out of anger.
A jury found defendant guilty of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). However, it found him not guilty of rape (Pen. Code, § 261, subd. (a)(2)), unlawful oral copulation (Pen. Code, § 288a, subd. (c)(2)), and making a criminal threat (Pen. Code, § 422). Two "strike" prior allegations (Pen. Code, §§ 667, subds. (b)(1), 1170.12), one prior serious felony enhancement (Pen. Code, § 667, subd. (a)) and one 1-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to a total of 25 years to life in prison.
1. The trial court erred by refusing to give a unanimity instruction.
2. The trial court abused its discretion by denying defendant's Romero motion.*fn1
3. The sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions.
4. The sentence violates the federal double jeopardy clause.
5. The trial court erred by imposing the prior serious felony enhancement.
The People concede that the prior serious felony enhancement should not have been imposed. Accordingly, we will remand the matter to the trial court with directions to consider whether to impose the one-year prior prison term enhancement, which it struck because it arose out of the same conviction as the prior serious felony enhancement. Otherwise, we find no prejudicial error. Hence, we will affirm.
On August 27, 2005, Melissa M. (M.) made a 911 call from a payphone at a market. She told the operator, "[M]y boyfriend was beating me." She named defendant as her boyfriend.
At 7:15 a.m., Officer Vicente De La Torre responded to the 911 call.
When he arrived, M. was crying. She had a black eye and red "linear
marks" on the sides of her neck. He did not see any finger marks.*fn2
Photographs of M.'s injuries were in evidence.
M. told Officer De La Torre that defendant came home around 3:00 or 4:00 a.m. He had been trying to phone her, and he was angry because the phone was off the hook. He took a pink scarf, wrapped it around her neck, and strangled her with it. Next, he choked her with his hands. He said, "I'm gonna kill you . . . ." She lost consciousness for a couple of seconds, but he slapped her and she came to.
Next, defendant forced her to orally copulate him and then to have sexual intercourse with him. Afterwards, he fell asleep. M. thought for about an hour about what to do, but once she decided to leave, she ran to the market.
C. Sexual Assault Examination.
Officer De La Torre took M. to the hospital, where a nurse performed a sexual assault examination. M.'s right eye was bruised and swollen and there were red marks around her neck. There was also a scratch on her wrist. She had no injuries to her genitals, but this would be true 60 to 70 percent of the time when an adult female reported a sexual assault.
M. told the nurse that her boyfriend had wrapped a pink scarf around her neck and choked her with it for 15 minutes. He also slapped her and hit her. She "blacked out for a couple [of] seconds." The sex consisted of intercourse and oral copulation. It was stipulated that the DNA from sperm cells found in M.'s vagina matched defendant's DNA.
D. Defendant's Mother's Testimony.
Defendant's mother testified that on August 27, 2005, around 7:00 or 8:00 a.m., defendant had some scratches, and one of his lips was "burst or scratched." Later that morning, defendant was arrested. Photos of his injuries showed a scratch on his neck and a "busted" or bruised upper lip.
M. later told defendant's mother that she had punched defendant in the face "[o]ver a girl." She also said that she had made up the rape charges.
E. M's Meeting with a Defense Investigator.
In February 2006, M. told a defense investigator that defendant did not force her to have sex. She had made up this allegation because she was upset about a phone call from a girl. She also said that she had asked defendant to choke her for erotic purposes.
F. The Letter from M. to Defense Counsel.
In late 2005 or early 2006, M. gave defense counsel a letter (or declaration) in which she said that the sex had been consensual.
G. Interview Before a Previous Hearing.
In March 2006, Officer De La Torre, a deputy district attorney, and M. were in court together for a previous hearing. M. told them, "Everything I said in that letter was a lie." She added that everything she had told Officer De La Torre on the day of the incident was the truth.
The jury heard two phone calls that defendant made to M. while he was in jail, one before and one after the previous hearing.
In the first call, on February 24, 2006, he told her to stop talking to "these people," adding, "[W]ould you rather me go to jail?"
He also told her, "[F]iling a false police report is only a misdemeanor, you're going to get probation. Would you rather me go to prison or you get probation?"
"I know what I did was wrong," he stated; " . . . I'm owning up to my responsibility."
In addition, he said, "[I]t's gonna have to go to prelim and I want you to be ready. I want you to get that letter from my mom.[*fn3 ] Don't forget, read over everything. Memorize it like it's a movie script."
In the second call, on April 18, 2006, defendant said, "What I did was foul, it was fucking wrong. It was stupid, it was sick." He told M.: "Go [into] hiding, something[,] either that or call you an attorney and tell them you have a problem in your hands, you got scared in . . . making some false ...