(Super. Ct. No. 09F07218)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Albert Povadora of 17 criminal counts against four different women, including forcible rape, forcible sodomy, forcible oral copulation, kidnapping, and false imprisonment, and found true numerous special allegations, including personal use of a deadly weapon and commission of crimes against multiple victims. The trial court sentenced him to 315 years to life plus 17 years in state prison.
On appeal, defendant contends (1) one of the witnesses was permitted to give impermissible opinion testimony; (2) the prosecutor's use of a pointillist painting in closing argument denigrated the reasonable doubt standard; (3) it was reversible error for the trial court to give a "firecracker" instruction; (4) the cumulative effect of the foregoing errors resulted in prejudice; (5) he was wrongly convicted of both kidnapping and the lesser included offense of false imprisonment; and (6) the trial court failed to determine his ability to pay the main jail booking fee and the main jail classification fee as required by Government Code section 29550.2. Agreeing only with the fifth contention, we shall modify the judgment and otherwise affirm the judgment.
Between 2008 and 2009, defendant victimized four women, Phoebe N., Venus H., Pamela W., and Tonya P., in the Sacramento area. The jury found defendant not guilty of charges related to a fifth woman, Norma F., and deadlocked on all charges related to a sixth woman, Sonia R. Facts related to the charges alleging sexual assaults against Norma F. and Sonia R. are mentioned herein where relevant.
Phoebe N. (Counts 1 through 7)
In the early morning hours of August 10, 2009, then 16-year old prostitute Phoebe N. got into defendant's gold-colored car and, after satisfying herself that he was not a police officer, agreed to have sex with him. Phoebe N. told defendant she was 19 and asked him for $70, which he agreed to pay without further discussion.
Defendant drove to an empty, unlit gravel lot and parked. He and Phoebe N. walked to the back of the lot where they were hidden by trees and bushes. When Phoebe N. asked for the money, defendant pulled a gun from his pants, held it to her back, and told her if she made any noises then, "like boom," or "bang." Defendant told her to take off her clothes. Phoebe N. told defendant she was only 16. Defendant said he was an undercover cop and that there were "a lot of UCs out here." He instructed Phoebe N. to get on the ground on her hands and knees; she complied. Defendant forced Phoebe N. to have anal sex. Phoebe N. asked him to stop, but he forced her to have vaginal sex and to orally copulate him. Defendant alternated between anal and vaginal sex approximately 20 times, putting his penis in her mouth multiple times as well. He ejaculated twice, once in Phoebe N.'s mouth and once either in her vagina or her anus. Some of his ejaculate spilled onto Phoebe N.'s shirt.
During the assault, defendant placed the gun on the ground next to Phoebe N., picking it up whenever he heard something and taking it with him when he went to investigate what he had heard. Phoebe N. did not move or scream for fear defendant would shoot her.
Defendant told Phoebe N. he did not want to see her "out there in the streets and that he should take [her] in right now." He wiped his face with Phoebe N.'s shorts and left. Phoebe N. got dressed and texted a friend for a ride to her mother's house.
Once home, Phoebe N. threw her clothes into the closet, brushed her teeth, showered and got dressed. She waited approximately four hours and then went to the hospital.
The scratches on Phoebe N.'s knees and injuries to her anus were consistent with her account of the attack. Genetic testing on swabs taken from her vagina and cuttings taken from her shirt and shorts contained sperm matching defendant's DNA profile.
As to Phoebe N., the information alleged three counts of forcible sodomy (Pen. Code, §286, subd. (c)(2)) (undesignated statutory references that follow are to this code unless otherwise specified)--counts 1, 3, and 5), three counts of forcible rape (§ 261, subd. (a)(2)--counts 2, 4, and 6), and forcible oral copulation (§ 288a, subd. (c)(2)--count 7), with special allegations as to counts 1 through 7 that he personally used a deadly weapon (§ 12022.3, subd. (a)), personally used a deadly weapon in the commission of a sex offense (§ 667.61, subd. (e)(4)), and committed the offense against multiple victims (§ 667.61, subd. (e)(5)).
In the early morning hours of August 27, 2009, defendant offered prostitute Venus H. a ride. She accepted and got into his beige-colored car. Venus H. would later describe defendant as "black in color," something like "an islander, Hawaiian." Defendant was wearing gym shorts and a T-shirt, and had a white towel around his neck.
As he drove, defendant talked with Venus H. about sex. He asked Venus H. if she was open to having anal sex; she said "no." She told defendant she charged $40 for "regular sex." Defendant asked Venus H. if she was carrying any weapons. She told him she had a can of pepper spray in her purse. He told Venus H. he was a police officer, showed her a badge, and told her she was under arrest. Venus H. noticed defendant's shirt had a "police-type emblem" on it.
Defendant drove into a dead-end alley and parked. He got out of the car and instructed Venus H. to do the same. She complied, leaving her purse behind. Defendant told Venus H. to put her hands on top of the car. Again, she complied. He kicked her legs apart and patted her down. He also searched her purse, finding a can of pepper spray and throwing it into the car.
Defendant told Venus H. she did not have to go to jail if she did something for him, and told her to take off her pants. He forced her to have vaginal sex from behind as she stood with her hands on the car and her legs spread apart. He then forced her to have anal sex. As Venus H. cried and asked him to stop, defendant alternated back and forth between vaginal and anal sex. Venus H. kept falling over, angering defendant as he tried to hold her up and told her to stop crying.
Defendant grabbed Venus H. by the throat, picked her up and told her to lie down on the ground, which was covered in gravel. Venus H. complied, lying down on her back. At defendant's instruction, Venus H. took off her sweatshirt and gave it to him. He laid it on the ground and knelt on it in front of her, picked her legs up and put them over her shoulders and, as she cried and asked him to stop, he forced her to have vaginal sex and then anal sex, alternating back and forth in that manner approximately four or five times until he eventually ejaculated in her anus. Defendant got up and told Venus H. not to move. He went to the car, threw Venus H.'s purse out, and drove off.
Venus H. went home and texted her partner, Brandi B., that she "had just [run] into a cop . . . and he let me go for a price." Venus H. put her clothes in a plastic bag. She cleaned herself up and stayed in her room for the next three days until a friend convinced her to go to the hospital, where she eventually spoke with police, turned over the bag of clothing, and submitted to a sexual assault examination.
Injuries to Venus H.'s vaginal and anal areas were consistent with her account of the attack. Genetic testing on cuttings taken from Venus H.'s panties contained sperm matching defendant's DNA profile.
As to Venus H., the information alleged three counts of forcible sodomy (§ 286, subd. (c)(2))--counts 8, 10, and 12), and three counts of forcible rape (§ 261, subd. (a)(2)--counts 9, 11, and 13), with special allegations as to counts 8 through 13 that he committed the offense against multiple victims (§ 667.61, subd. (e)(5)).
On March 19, 2009, sometime between the hours of 10:00 p.m. and 2:00 a.m., Pamela W. was walking around downtown Sacramento. She and her boyfriend were having problems and she just wanted to "get away, just get out and about." Pamela W. had been diagnosed with bipolar disease and suffered from manic depression for which she had been prescribed medication. At trial, she could not recall whether she was taking her medication at the time.
As Pamela W. walked near a 24-Hour Fitness, defendant grabbed her from behind, dragged her into an alleyway, and threw her face-down onto the ground. When Pamela W. screamed, defendant hit her in the head with a gun and told her to "shut up." He pulled down her pants and ejaculated on them after masturbating. Defendant stood over Pamela W. and urinated on her, then forced her head into the urine. He held a gun to her head and threatened to kill her if she made a sound. He then pulled up his pants and ran away.
Pamela W. ran to the 24-Hour Fitness and reported the assault to Aaron C. at the front desk. She told Aaron C. she had just been attacked and raped. Aaron C. later described Pamela W. as disheveled and smelling of urine, and said she was "hysterical" and scared and looked like she had been crying. Aaron C. called mall security.
When security personnel arrived, Pamela W. told them what happened; however, they did not seem to take her seriously, so she left without calling the police.
As to Pamela W., the information alleged kidnapping to commit rape (§ 209, subd. (b)(1)--count 19) and false imprisonment (§ 236--count 20), with special allegations as to counts 19 and 20 that he was armed with a firearm (§ 12022, subd. (a)(1)).
On May 30, 2008, at approximately 9:00 p.m., Tonya P. went with some friends to a nightclub in midtown Sacramento, where she shared several drinks with her friend, Mary. After about an hour and a half, Tanya P. and her friends walked to another nearby bar. Tonya's friends left that bar at 11:00 p.m., ...