P. v. Rasheed

Filed 6/20/06 P. v. Rasheed CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Warren Robinson and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

Defendant and appellant Abdul Malik Rasheed appeals his conviction of statutory rape, with a finding that he committed great bodily injury (GBI) on the victim. Defendant's primary contention on appeal is that he was subjected to a vindictive prosecution. We reject the contention and affirm the conviction.

2. Factual and Procedural Background

In 2001, defendant was charged with one count of forcible rape (Pen. Code,^[1] § 261, subd. (a)(2)), and one count of unlawful sexual intercourse with a minor (statutory rape) (§ 261.5, subd. (c)). A GBI allegation under section 12022.7, subdivision (a), was alleged as to each count.

Both charges arose from a single incident that took place in 1999. Jane Doe was a high school student. She became acquainted with defendant through a classmate and distant relative, J. Newell. One day, when Jane Doe was at Newell's house, Newell was talking to defendant on the telephone. Newell handed the telephone to Jane Doe, who then conversed with defendant for a few minutes.

Thereafter, Jane Doe and defendant talked on the telephone on several more occasions. Defendant told Jane Doe that he was 24 years old. He was actually 34 years old at the time. He also related that he had been shot by police, after which he could not walk and had to use a wheelchair. Defendant told Jane Doe that he had filed a lawsuit after the shooting.

Jane Doe told defendant that she was 16 years old and a high school junior. She was five feet three inches tall and weighed about 100 pounds.

Sometime between 12:00 midnight and 2:00 a.m. on October 30-31, 1999, defendant telephoned Jane Doe. He invited her to a party. He said he would pick up her and Newell and take them to the party. Defendant arrived to pick up Jane Doe. She got into the car with defendant and the driver, a man called â€