The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CRF066681)
A jury convicted defendant of forcible rape (Pen. Code, § 261, subd. (a)(2); unspecified section references that follow are to the Penal Code), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), and attempted penetration by a foreign object (§§ 664/289, subd. (a)(1)), and found charged enhancements to be true (§ 667.61, subd. (b)). The jury was unable to reach verdicts as to two other counts, kidnapping for the purpose of oral copulation (§ 209, subd. (b)(1)) and attempted sodomy (§§ 664/21a, 286, subd. (c)(2)). The court dismissed those charges and sentenced defendant to an aggregate prison term of 18 years to life.
On appeal, defendant contends that (1) the trial court erroneously allowed evidence of other offenses, (2) his attorney did not provide the effective assistance of counsel, and (3) the cumulative effect of these errors compels reversal. We find merit in one of defendant's ineffective assistance of counsel claims and reverse his conviction on count 5 for forcible oral copulation. This conclusion obviates the need to address the People's claim that the court erred in imposing sentence on this particular count.
On a cold, rainy November evening, the victim left her apartment in her pajamas and a sweater to do her laundry in the complex's laundry room. She passed a person she did not know, later identified as defendant.
On one of the victim's trips back and forth to the laundry room to check her wash, defendant ran up behind her and grabbed her around the neck. The victim screamed but defendant covered her mouth and forced her along as he walked. When the victim fell on the grass, defendant pulled her up by the hair, grabbed her neck, and took her behind one of the apartment buildings.
He threw the victim against the wall, pushed her to her knees and forced her to orally copulate him. He then raped her.
Defendant grabbed the victim around the neck and pulled her toward a park across the street from the complex. When defendant received a call on his cell phone, the victim attempted to run away but she slipped in the mud and defendant pulled her back by her hair and forced her to the park. Defendant put his fingers underneath the victim's clothes and attempted to digitally penetrate her vagina. He also forced the victim to orally copulate him.
Defendant let the victim go and she ran back to her apartment. Her roommates described her as disheveled, and her clothes as wet and dirty. Her neck had red marks on it. The victim was crying, shaking, and scared, and she initially did not want to talk about what had happened. She eventually told her roommates that she had been raped.
A non-Spanish speaking officer arrived on the scene and found the victim huddled on the floor, shaking and crying. She had mud on her pajama pants. The officer did not notice any smell of alcohol. An interpreter arrived and the victim gave a brief statement while crying.
The victim was taken to the hospital, where she was interviewed by officers and examined by medical staff. The victim was described as disheveled. The nurse practitioner, a very experienced sexual assault examiner, was bilingual and spoke with the victim, who told her defendant had grabbed her neck, forced her to orally copulate him, raped her, and attempted acts of digital penetration and sodomy. She had never seen defendant before.
The physical examination revealed scrapes and abrasions on the victim's foot, arm and neck. The nurse also found injuries to the victim's cervix, injuries the nurse had seen only in cases of sexual assault. The victim's blood alcohol level was 0.00 percent according to analysis of a blood sample taken at 1:45 a.m. the following morning.
The victim helped officers create a composite drawing of her assailant and she subsequently picked defendant out of a photographic lineup. Laboratory tests matched DNA evidence to defendant.
When defendant was interviewed and told he was under arrest for rape, he asked where the rape happened and "Who's the girl?" He denied being at the park, said he was with his cousin at the time the assault occurred, and denied having sex outside with anyone on that date. However, defendant later changed his story and said he had gotten drunk with "one Mexican girl" and had sex with her. He had met this girl a few weeks earlier, but didn't talk with her much because she spoke little English and he knew little Spanish. Defendant said that he did not have a phone number for her and did not know her name, but added that she had phoned him. He asserted that the two of them engaged in consensual sexual activity behind the apartment complex.
The victim's cell phone records did not show any calls to defendant's phone numbers, nor were there any calls from defendant to the victim.
As described in detail below, the prosecution introduced evidence that defendant had previously tried to force his way into the apartment of another resident at the same complex, and had exposed himself to teachers in Juvenile Hall.
At trial, defendant argued that his encounters with the victim were consensual. He challenged the victim's credibility, and argued the implausibility of the offenses occurring at the park as described because he was on his cell phone for much of that time.
The jury convicted defendant of rape, two counts of oral copulation, and one count of attempted penetration by a foreign object. The jury was unable to reach verdicts on charges of attempted sodomy and kidnapping for purposes of oral copulation, and those counts were ultimately dismissed.
The court sentenced defendant to an aggregate sentence of 18 years to life and this appeal followed.