P. v. Pullett

Filed 6/26/06 P. v. Pullett CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John L. Fielder, Kenneth C. Twisselman, II, Lee P. Felice, Arthur E. Wallace, and Michael G. Bush, Judges.^[1]

Maribeth Halloran, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

Procedural History

Appellant Dell Pullett was convicted after a jury trial of the forcible oral copulation of T. R. (count 1) and Patricia R. (count 2) (Pen. Code,^[2] § 288a, subd. (c)(2)); the attempted forcible oral copulation of Patricia R. (count 4) (§§ 664 & 288a, subd. (c)(2)); residential burglary (count 5) (§ 460, subd. (a)); and dissuading a witness, Patricia R. (count 6) (§ 136.1, subd. (c)(1)). The jury found that counts 1, 2, and 4 were committed by use of a deadly weapon, scissors (§ 12022.3, subd. (a), § 667.61, subds. (e)(4)), and that counts 1 and 2 occurred during the commission of a residential burglary, but not with the intent to commit the charged offenses. (§ 667.61, subds. (e)(2) and (d)(4).) The jury also found that the offenses involved more than one victim. (§ 667.61, subds. (e)(5).) In a bifurcated proceeding, the trial court found with respect to counts 1 and 2 that appellant had suffered a prior serious felony conviction of rape and was a habitual sexual offender. (§ 667, subds. (a), (c)-(j); § 1170.12, subd. (a)-(e); § 667.71.)

Appellant was sentenced to state prison for a total term of 157 years, 8 months.

FactUAL HISTORY

Appellant and Patricia R. were involved in a tumultuous dating relationship. In 2002, appellant forced Patricia to have sex with him. Patricia called the police but decided not to report the rape. Appellant claimed this was a false report. In 2003, mutual restraining orders were issued prohibiting contact between the two. On May 6, 2004, appellant came to Patricia's apartment. When Patricia told appellant to leave, he grabbed her by the neck and pushed her against a pole. In the face of his threats to come back if Patricia called police, T. R., Patricia's daughter, called 911.

At approximately 2:15 on the morning of May 7, appellant entered the apartment through a sliding glass door, armed with a pair of gardening scissors. He ordered Patricia to orally copulate him or he would make T. R. do it. Patricia refused and appellant hit her in the face and head with his fist. Patricia ran to T. R.'s room. Appellant followed. There, using threats, he forced Patricia to orally copulate T. R. and T. R. to orally copulate him.

Appellant then told Patricia he was going to rape T. R. Hearing this, Patricia grabbed the scissors and there was a struggle. Ultimately, appellant threw down the scissors and ran from the apartment. T. R. called 911, but was too hysterical to talk. Patricia got on the phone and pleaded for help. When the officers arrived, both Patricia and T. R. were cut, bleeding, and hysterical. There were signs of struggle in the apartment.

In 1988, appellant broke into the house of Estella S. after Estella's daughter had broken up with him. Appellant forced Estella to orally copulate him and then raped her.

Defense

At the time of the offense, appellant was a frequent visitor to the apartment complex where Patricia lived. He mowed lawns for and sold wood to a number of residents there. Appellant and Patricia were still seeing each other frequently, and Patricia was jealous of appellant's contacts with a female neighbor. According to one witness, after the incident, Patricia stated that appellant â€