(Super. Ct. No. 06F02788)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Leonard Michael King took S. on a car ride against her will. He stopped the car at the house of his uncle, Cornelius Poon. Poon got in the car, and defendant told S., "you're gonna have to fuck him." Poon then raped S. while defendant laughed. Poon gave defendant $10.
A jury found defendant and Poon*fn1 guilty of rape in concert and sexual battery. The court sentenced defendant to 32 years in prison.
On appeal, defendant raises an evidentiary issue, an instructional issue, and a number of sentencing issues. Agreeing there was mistake in the presentence custody credits and error in the abstract of judgment, we modify the judgment and order the trial court to amend the abstract.
FACTUAL AND PROCEDURAL BACKGROUND
S. was 22 years old, "mild[ly] mental[ly] retard[ed]," and pregnant when she was raped in January 2006. That day, S. had gone with her friend Shenel Simmons to the apartment of Simmons's boyfriend. Simmons's boyfriend was defendant's brother, and the brothers shared an apartment. While Simmons went to the apartment, S. waited in Simmons's still-running car. Before Simmons returned to her car, defendant got inside and began driving (without Simmons's permission) around Sacramento with S.
Defendant drove to Poon's house. Poon came out of the house, and defendant told S. to get in the backseat of the car because they were all going to the store. When she did, Poon joined her. Defendant drove a short distance from the house. Poon started "feeling [her] all over," and she started crying and told him, "no." Defendant, who was in the driver's seat, told her, "shut up, B[itch]." Poon "kept on pushing his weight on [her]." "He kept on feeling on [her], and [she] kept on pushing him away." Eventually, she "just gave up" because she "couldn't fight no more." Poon then pulled her pants down and started having sex with her. She was still crying and saying "no." While Poon was raping S., defendant was "[s]itting in the front laughing." Defendant then dropped Poon back at his house, and Poon gave defendant $10 and told him, "Make sure [S.] don't holler rape."
Defendant drove S. back to the apartment. Simmons was there when S. returned, and she thought S. looked upset and uncomfortable. S. told Simmons she was ready to go, and once they were alone, S. told Simmons what had happened. S. called her family, and police were summoned.
S. went to the hospital and to the University of California at Davis Medical Center. At the medical center, nurse practitioner Penny Miller conducted a sexual assault exam. S. told the nurse one of the assailants held her down with the weight of his chest, fondled and kissed her, and then put his penis in her vagina. Although S. told the nurse she had "vaginal discomfort," the nurse did not find any injuries on S.'s genitals. The nurse explained that in a third of patients, there was no finding of any physical injury, even though a sexual assault occurred. The nurse could not tell from her examination of S. if the sex was consensual. But, her examination of S. was "consistent with the history of sexual assault" S. had recounted to her.
At trial, defendant testified he had read up on the subject of pimping and had approached S. about "ho-ing" for him. She eventually accepted his offer. S. voluntarily had sex with Poon. It was a "spur of the moment thing" that turned out to be a source of money for defendant.
There Was No Error In Admitting The Nurse's Testimony
Defendant contends he was denied his federal and state due process right to present a defense by the nurse's testimony, which he claims did "no more than vouch for the strength of the prosecution's case and the veracity of [S.]'s allegations." He singles out her opinion testimony that her examination of S. was "consistent with the ...