California Court of Appeals, Fourth District, First Division
APPEAL from orders of the Superior Court of San Diego County No. CD2438884, Runston G. Maino and Joan P. Weber, Judges.
[Copyrighted Material Omitted]
Bonnie M. Dumanis, District Attorney, Laura E. Tanney, Chief Deputy District Attorney, Gary W. Schons and Martin E. Doyle, Deputy District Attorneys, for Plaintiff and Appellant.
Law Office of Charles Sevilla and Charles M. Sevilla for the Defendant and Respondent.
McCONNELL, P. J.
In this case, we must decide whether a magistrate erred in determining a defendant should not have to answer charges of soliciting forcible rape and forcible sodomy after defendant advertised online for sexual partners for an unwitting victim and then, while impersonating the victim, invited men who responded to the advertisement to appear at the victim's home unannounced to engage in "freak show" sexual activity. We conclude the magistrate indeed erred and, therefore, reverse the superior court's order denying the People's motion to reinstate the charges.
Preliminary Hearing Evidence
The People filed an amended felony complaint against Kathy J. Rowe alleging, among other charges, one count of solicitation to commit forcible sodomy and one count of solicitation to commit forcible rape (Pen. Code, § 653f, subd. (c)). At a preliminary hearing on the charges, the prosecutor presented evidence showing Rowe, impersonating the victim, posted an online advertisement, entitled, "Carmel Valley Freak Show, " offering adult entertainment of all types while the victim's husband was not at home.
Solicitation to Commit Forcible Sodomy Count
G.M. responded to the posting. In his response, which included a nude frontal photograph of himself, he stated, "Hey Im 25 and new to S.D. and I am looking for fun! Im tall, attractive, fun, D&D free and I aim to please! I promise Im a nice guy and not a weirdo or pervert (at least not the bad kind). I want to spoil a lucky lady with massages, making out, lots of oral, and some great sex! I got a nice tool, and I can use it very well! I love giving and receiving oral and long sex session trying out all sorts of positions. I also have some 420 if your into that. Here's a pic. I can host. Let me know if your interested in getting together sometime."
Rowe replied, "Just stop by any Monday-Friday 9am-3pm." G.M. responded, "What's the address, do you have any pics and a description of yourself?" Rowe sent him a photograph of the victim obtained from a social media website and replied, "What do you think of my photo?"
G.M. responded, "Nice, so you just like guys to stop by for fun? How do I know if I show up its going to be you there? What are you into, what gets you off?" Rowe replied, "I'm pretty much home all day every day, bored and incredibly horny. I love to be surprised and have a man just show up at the door and force his way in the door and on me, totally taking me while I say no. Anal sex makes me come incredibly hard. Do you like anal? What are you into? I'm getting wet just thinking about this. What is your name.?"
G.M. responded, "I'm [G]. Sounds good. I just moved to S.D. and looking for fun. I have not had to[o] much experience with anal, my previous gf's weren't into it. Im into it, and Im interested in making you cum hard with anal sex, I've never seen a girl do that. Im into everything except male male stuff and stuff with my butt. My favorite is 69 where I lay on my back and you can squat me and I eat you while you suck me. I also like to go multiple rounds. Do you have any more pics? Can I see that nice runners body?" Rowe never replied to him.
Solicitation to Commit Forcible Rape Count
Approximately two weeks after G.M.'s response, J.M. responded to the same or similar post. In his response, J.M. indicated he was a 28-year old single guy looking for "a one night stand or if all is good ongoing, but for now just need to get laid." He described his height and build and listed his phone number.
Rowe received J.M.'s response and told him to stop by the victim's home "any Monday-Friday, 9am-3pm. I like the element of surprise." He replied asking for the location and Rowe sent him the victim's address.
Approximately two weeks later, J.M. sent an e-mail asking if the victim was still available. Rowe replied, "absolutely." The next day, Rowe sent another reply stating, "I'm available all week. Maybe we can have a nooner on your lunch hour? I will have my pussy clean shaven every day awaiting your tongue. Just stop on by and surprise me with your hard-on."
A few days later, J.M. went to the victim's home and no one was there. He explained at the preliminary hearing, "There ...