APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana Walton, Judge. (Super. Ct. No. 8240)
The opinion of the court was delivered by: Levy, Acting P.J.
CERTIFIED FOR PUBLICATION
On October 12, 2009,*fn1 appellant Roger Wayne Robinson kidnapped and sexually assaulted M.H. (the victim). He was convicted after jury trial of aggravated kidnapping for the purpose of committing rape (count 1), sexual penetration by a foreign object (count 2) and forcible rape (count 3). (Pen. Code, §§ 209, subd. (b)(1), 289, subd. (a)(1), 261, subd. (a)(2).)*fn2 The jury found true a special finding attached to counts 2 and 3 that appellant kidnapped the victim "in violation of Penal Code Section 207 or 209, pursuant to Penal Code Section 667.61(e)(1)" (special finding no. 2). (§ 667.61, subd. (e)(1).) The jury acquitted appellant of a second forcible rape count and of dissuading a witness from reporting a crime (counts 4 and 5). (§§ 261, subd. (a)(2), 136.1, subd. (b)(1).) The jury found not true a special finding that appellant kidnapped the victim, "and the movement of the victim substantially increased the risk of harm to the victim over and above that level of the risk necessarily inherent in the underlying offense in Penal Code Section 667.61, subdivision (c), pursuant to Penal Code Section 667.61(d)(2)" (special finding no. 1).
Appellant was sentenced on counts 2 and 3 to two consecutive terms of 15 years to life; a term of seven years to life was imposed and stayed on count 1. At the prosecutor's request, the court ordered that "defendant will have no contact whatsoever with the victim of his crimes."
Appellant challenges the sufficiency of the evidence supporting the aggravated kidnapping conviction and special finding no. 2, arguing that the People failed to prove appellant's movement of the victim substantially increased the risk of harm. We will explain that section 209, subdivision (b)(2) requires the People to prove that the movement of the victim was more than incidental and increased the risk of harm above that inherent in the enumerated sexual offense itself. Yet, section 209, subdivision (b)(2) does not require the People to prove that the movement substantially increased the risk of harm. Here, the record contains substantial evidence from which a rational trier of fact could find beyond a reasonable doubt that appellant's forcible movement of the victim away from the back of the garage by a door to the front of the garage near a large tub filled with water was more than incidental and increased the risk of physical and psychological harm to the victim.
Next, appellant argues that evidence of his prior sexual misconduct, which occurred in 1974, should have been excluded on the ground of remoteness. We reject this argument because the striking similarities between the prior sexual misconduct and the current crimes balance out the remoteness. This evidence was highly probative and was properly admitted pursuant to Evidence Code section 1108, subdivision (a).
Finally, appellant argues that the no-contact order is unauthorized; respondent concedes this point. The concession will be accepted as properly made because the no-contact order was not authorized by any statute and was not supported by a factual basis. We will strike the protective order and affirm the judgment in all other respects.
In fall of 2009, appellant and his wife lived on a parcel of land containing a house, a detached garage, a workshop, a patio and dining area, a kennel, an aviary and several small outbuildings (the compound). Appellant conducted Christian services inside the garage,*fn3 which was outfitted with several rows of pews, a pulpit and a large rectangular wooden tub which resembled a coffin. This tub was lined with black plastic and filled with water. It had a removable cover, which a photographic exhibit depicted as resting against an interior wall.
A. The victim's testimony.
The victim is a native of Mexico who cannot speak English. She has four children, including a daughter who suffers from diabetes and an adult son named Miguel.
The victim attended three services conducted by appellant because several people told her that "[h]e worked miracles so I went there to have my daughter healed." Appellant told the victim "that he could heal [her] daughter" and asked the victim to bring the girl to see him. They made arrangements for appellant to meet her daughter sometime in October.
Appellant told the victim "that God told him" that her son should baptize her. So, during the victim's second visit to the compound, appellant directed the victim's minor son in baptizing the victim in the tub. During this baptism, the victim was fully submerged in the tub. The victim participated because she "wanted to have him heal [her] daughter."
The victim believed appellant was endowed by God with special healing powers that enabled him to work miracles. During the victim's baptism, appellant pulled out a towel that he said was covered in the blood of Christ. She heard appellant claim to have turned a snake into a lizard. The victim also believed appellant had the power to have someone harmed if he wanted to do so. Appellant told the victim that he had friends who were police officers in Atwater and they would hurt or kill any person he wished to be harmed. Appellant told the victim that his dogs would tear someone apart if he commanded them to do so.
During the morning of October 12, appellant called the victim. The victim could not understand appellant but thought that he was asking her to clean his home or the garage. She handed the phone to Miguel. After speaking with appellant, Miguel asked the victim if she was willing to go to the compound and clean. The victim agreed.
About half an hour later, she and Miguel drove to the compound. Appellant was waiting for them in the parking area. He told Miguel to go look for a job. When Miguel told appellant that he did not have a car, appellant told him to take his mother's truck. Miguel responded that he did not have a driver's license. Appellant gave him a vacuum and told him to clean the cabins. When appellant was alone with the victim, he said, "Why did you bring your son? I did not want your son. I wanted you alone." The victim was uncomfortable with appellant's demeanor, which she characterized as "aggressive."
Appellant walked toward the garage and told the victim to follow him. Appellant did not take any cleaning materials with him. Appellant used a key to unlock the door at the back of the garage. He ordered her to go inside. The victim was afraid because the lights were off and the inside of the building was dark, but she obeyed him. Appellant followed her into the garage and locked the door with a key. Then he hugged her from behind. She pushed him away and tried to get to the door. The victim told appellant that she wanted to talk to his wife. He mockingly replied in Spanish that his wife was not here. He told the victim to walk toward the front of the garage where the pulpit and tub were located. When the victim refused, appellant put his arms on her back and pushed her forward past two rows of pews "[t]oward where the [tub] is." Appellant was "upset, furious." Again, he ordered her to walk forward. The victim obeyed because she "was afraid." The victim repeatedly asked appellant where his wife was and he replied in Spanish that she "is not here."
They stopped at the front of the garage near the tub. Appellant told the victim to take off her clothes and to lie on the ground. The victim initially refused but eventually lay down on the ground and took off her pants. Appellant lowered his pants. He held the victim with one hand, lifted the other hand in the air and, "in a mocking way," prayed, "Thank you Jesus for giving me a pretty woman. What I was asking you for, the prettiest woman." Appellant kissed the victim's mouth and neck. He slightly penetrated the victim's vagina with his penis at least two times. He was not able to maintain an erection so he inserted his fingers deep into her vagina.
The victim was frightened and angry but did not scream or struggle for several reasons. Appellant sexually assaulted her near the tub, which was uncovered and filled with water. They victim was afraid that if she resisted, appellant would throw her in the tub and drown her. Also, the victim was afraid that if Miguel heard her scream and came inside the garage, appellant would hurt Miguel or Miguel would hurt appellant. Finally, the victim was afraid of appellant's dogs and thought they would hurt her.
After 10 or 15 minutes, appellant and the victim heard Miguel approaching with the vacuum cleaner. Appellant pulled up his pants and the victim put her pants on. They exited the garage through the back door. Appellant told the victim to walk into the house and go to his wife's bedroom. The victim complied because she was afraid. Once they both were inside the bedroom, appellant told her to lie on the bed. She refused. Just then, Miguel opened the sliding door into the house. Appellant left the bedroom and the victim followed.
When the victim saw Miguel she did not tell him what appellant had done to her because she was worried that Miguel would try to hurt appellant. Instead, she told Miguel to tell appellant that they had to leave. He asked her what he should tell appellant and she told him to tell appellant that they had to pick up her other son from school. In order to prevent Miguel from suspecting what appellant had done to her, the victim told Miguel to ask appellant to give her a broom to sweep outside. The victim went to her truck and waited for Miguel. Appellant gave Miguel some packaged food that had passed its expiration date to take with them. Appellant went to the parking lot and prayed for them before they left.
Appellant repeatedly called the victim later that day and on October 13. During these calls, he told her not to tell anyone what he had done. If the victim did not answer the house's landline, appellant would call her cell phone. If she did not answer the cell phone, within seconds he would call the landline. The victim was upset by these calls and stopped answering the phone.
About a week after the sexual assault, the victim met with some of appellant's friends at a Starbucks coffee shop. She told them "what the [appellant] had done to [her]." They did not believe her, even after she swore on a Bible.
B. Other prosecution evidence.
On October 13, the victim and her friend, Sonia Gutierrez, went to the Merced Police Department to file a police report. The victim was referred to the Mariposa County Sheriff's Department, where she filed a report on October 14. Gutierrez acted as the victim's interpreter during the conversation with a police officer on October 14. Gutierrez testified that she tried to relay the information accurately but may have made some misstatements. The victim also spoke with a police officer on January 26, 2010; a certified interpreter and victim advocate were present during that interview.
A police officer who spoke with the victim on October 13 testified that when he "initially made contact with her she appeared nervous, embarrassed, and ... [y]ou could tell by her demeanor she was really embarrassed and ... was a victim of something that did occur."
The victim made some pretext phone calls to appellant in the presence of a police officer.*fn4 During the first call, appellant exhorted her "don't tell nobody, Amen." During another call, the victim told appellant that she was not happy and said that Jesus did not like him. Appellant replied, "Yeah, he forgive," and, "I told Jesus sorry, he say forgive." The victim asked appellant to confirm that he would not touch her anymore. Appellant replied, "Okay. Finished." During another call, appellant said, "Yeah. So, nobody know amen," and "Yeah, don't tell nobody, Amen."
T.N. testified about an incident that occurred in 1974 during which appellant kidnapped and raped her. Appellant was arrested and charged with kidnapping, rape and attempted oral copulation in connection with that sexual assault. He accepted a negotiated plea agreement and pled no contest to one count of battery.
A. Appellant's testimony.
Appellant testified that he began Christian ministry work in 1975. Some people think that he is a "kind of a miracle worker" who "can heal their children." But he "can't. Only God can." He knows that some women are sexually attracted "to preachers because they are preachers."
Appellant said his wife was away from the compound during the morning of October 12 and he expected his daughter and her children to visit him. While he was waiting, appellant called Miguel to ask why he had not attended the service that appellant conducted on Sunday and to see if Miguel was still planning to go to "a recovery home." Miguel "translated to his mother something." Then Miguel "asked ... if my wife was there" and appellant "said no." Miguel asked appellant what he "was going to be doing," and appellant "said, what are you doing?" Miguel said they were "going to go to a work furlough place in Merced," and then said, "we're going to come and clean." Appellant replied, "I don't need you to come cleaning. Go get a job," and "hung the phone up."
About an hour later, Miguel and the victim arrived at the compound. Appellant was in his workshop when they approached him. The victim hugged appellant in an "inappropriate" way. Miguel asked appellant if he could vacuum the outbuildings and the victim asked if she could clean the garage. Appellant allowed them to stay and clean because "[p]eople come there all of the time. We eat. They clean. I don't stop them. That is their choice" to volunteer at the compound.
Appellant walked to the garage and the victim followed him. He entered the building through the back door, which was not locked. The victim followed him inside and shut the door. It was not dark inside the building because daylight entered through three windows. Nonetheless, appellant turned to switch on the lights. Suddenly, the victim grabbed appellant's penis over his pants. Appellant told her to stop, but she grabbed his penis again. Appellant removed the victim's hand and asked her to pray with him. He walked forward toward the front of the garage "to have her sit down and pray." The tub was at the front of the building; it was empty. The victim followed appellant and grabbed his crotch again. Appellant knew it "wasn't an accident" "[b]ecause this time she held on." He removed her hand. Appellant told her to "sit down there and pray and stop it." Appellant sat down on a pew and prayed to God for help. Then appellant "went to the other side to the front door," and opened the door. He turned around and saw that the victim was removing her clothing. Appellant left the garage. The victim chased him, grabbed his arm and held onto it.
Appellant saw Miguel and told him to take the victim home. Miguel replied that they came to work. Then Miguel said, "[s]he wants a broom to sweep out front." Appellant got a broom from the kitchen area, gave it to Miguel and went to his workshop. About five or ten minutes later, the victim and Miguel approached appellant. Miguel told him that they were leaving. Appellant "prayed with them and [the victim] wanted to hug me again, and I told her not to come back." Miguel took some chips and food and then he and the victim drove away.
Appellant called Miguel later that day and left a message. The victim called appellant numerous times during the next few days and he returned her phone calls. During the pretext phone calls he was merely explaining the Bible to the victim.
Appellant denied sexually assaulting T.N. He pled no contest to battery on the advice of counsel and because he "was afraid." Appellant admitted having suffered a prior drug-related conviction as well as probation and parole violations. Appellant testified that he was delivered by God from ...