Filed 5/2/07 P. v. Parlanti CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Carlo Parlanti was tried before a jury and convicted of forcible rape, inflicting corporal injury on a cohabitant, and false imprisonment by force or violence. (Pen. Code,  261, subd. (a)(2), 273.5, subd. (a), 236.)[1] The trial court sentenced appellant to nine years in prison, including an eight-year upper term for rape, and a consecutive one-year middle term for corporal injury to a cohabitant. The three-year term for false imprisonment was stayed pursuant to section 654. Appellant contends that the trial court committed instructional and sentencing errors and that trial counsel was ineffective because he failed to request certain instructions. We affirm the judgment, vacate appellant's sentence, and remand the matter for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Case

Appellant and Rebecca W. met in spring 2001, when they both worked in Monterey, California. They dated for six or seven months before appellant moved into the home that Rebecca shared with her daughter. In December 2001, Rebecca moved to Westlake Village with appellant when his employer transferred him to Ventura County. Rebecca had a power of attorney relating to appellant's finances.

Appellant never hit or touched Rebecca inappropriately before they moved to Westlake Village. Following their move to Westlake Village, he became very possessive and limited her contact with family and friends. He also became physically abusive on occasion, and kicked, slapped or beat her with a belt. Appellant often asked her to watch pornographic movies with him and when he was away. He sometimes handcuffed her, hit her with a belt, or spanked her during sex.

On June 29, 2002, appellant and Rebecca were at their Westlake Village apartment. Rebecca's mother, daughter, grandson, and daughter's boyfriend visited them and left sometime in the afternoon. Later appellant consumed most of the contents of two separate two-liter bottles of wine. At some point, appellant yelled at Rebecca to "get away from him," and she went to bed. Appellant entered the bedroom and said, "That's not what I meant," grabbed her arm, pulled her from the bed, and said, "I meant for you to leave." Fearing appellant, Rebecca intended to leave, and asked him to let her dress. Appellant maintained his grip on her arm and pushed her toward the front door. He then pushed her head against a bulletin board more than 30 times. Rebecca was in pain and could not move away. After appellant stopped, he told her that he wanted her to leave. She asked him to let her get dressed, and he said, "I don't want you to leave. . . . I want you to . . . get on your hands and knees and beg me to let you stay." Rebecca did not do that.

Appellant forced Rebecca against an adjacent wall and slapped her face repeatedly, with the front and back of his hand, as he held her body against the wall. She could neither move nor yell. Appellant then banged her head against the wall approximately 30 times. Rebecca's left eye began to swell shut, and she was shaking and crying. Appellant grabbed her by her throat, pulled her to the bulletin board, and began to choke her. As she fell, Rebecca dug her nails into the back of appellant's legs. She realized she must have lost consciousness. Later, when she "came to," her face was on the floor, appellant's knee was against her back, and his hands were around her neck. He pulled her head back and choked her. She again lost consciousness. When she next regained consciousness, she was on her back, with appellant standing over her, in a different part of the living room. She screamed, and appellant told her that she would get in trouble if she did not "shut up." He kicked her 10 to 20 times in her right side.

The next time Rebecca regained consciousness, she was on the floor, rolled up like a ball, screaming, "Please stop. You're hurting me." Appellant responded, "Oh, your poor liver, your poor liver. I really feel sorry for you." He told her to "shut up" and threw her onto a beanbag chair in the living room. Using his fist, appellant hit Rebecca in the face, between the eyes and forehead, then grabbed her hair, pulled her into the home office and sat her on the futon. He again told her to "shut up" and stay there, and said, "I don't know what to do with you," before leaving the room and returning with a glass of wine and a telephone. Appellant told Rebecca to call 911, "so we can finish this," and pushed her back on the couch. Rebecca had difficulty breathing and could not sit up. Appellant said, "I've had my ribs broke before. This is how you get up." She cradled her ribs with her left hand as she sat up. Appellant put the telephone on her arm and told her to call 911. When Rebecca let the telephone fall, appellant picked it up and put it inside her top. She let it fall again and appellant kept telling her to call 911. She did not pick up the telephone, fearing that if she touched it, appellant would either hit her with it or continue to hurt her. He had never been so physically violent with her, and she feared for her life.

Appellant then displayed a website on the computer featuring nude, bound women. He told Rebecca to "pick one" because he was going to tie her up that night and he wanted her to enjoy it. She said nothing. Appellant became angrier, and then said, "Fine. If you are not going to pick one, you are not going to dial 911, I'm just going to tie you up."

Appellant pulled Rebecca to their bedroom, removed her clothes and threw her onto the bed. He covered her, left the room, and returned with a refilled glass of wine and some zip ties. Appellant placed a zip tie on each of her wrists and ankles, then tied her left wrist to her left ankle and her right wrist to her right ankle. She was on her back, tied up, and appellant said that he wanted to "make love" to her. Rebecca said she did not want him to do that. He responded, "I know I've hurt you. I want to make you feel better." He also said that he would take her to a motel in the morning and leave her there because he wanted her out of his life.

Appellant lay on Rebecca and put his penis into her vagina, where it remained for about five minutes. Rebecca said, "Stop. You're hurting me." She was still tied up and could not resist. When appellant got off Rebecca, his penis was still erect. He left the room, looking angry. The tight ties on her wrists caused her hands to throb and she called appellant to come and remove them. In about six or seven minutes, he returned and cut the ties from her wrists. Her hands had turned purple. He then used bigger zip ties and again bound her wrists to her ankles.

Appellant again told Rebecca he wanted to "make love" to her. Although she told him she did not want him to do that, appellant placed his penis in her vagina. When Rebecca did not participate, appellant said, "You're not . . . making love to me." She said that she did not want to do that and he was hurting her. He responded, "If that hurts, this is really going to hurt," and he started biting her on her left arm. She screamed loudly, and appellant laughed and said, "Oh, that hurt?" before he bit each of her nipples. When Rebecca tried to get appellant to stop, he giggled. Appellant then shoved his right fist inside her vagina. She screamed with pain. He opened his hand inside her vagina, which caused more pain and she told him to stop. After removing his hand from her vagina, he tried to put it inside her rectum. She cried and twice asked him to stop, but appellant continued his attempts. After he stopped, he told Rebecca he would cut the ties if she would make love to him. She asked him to please stop. He left the bedroom for a few minutes. She called him back because her hands started to swell again.

Appellant returned, lay next to Rebecca, and again told her he would cut the ties if she made love to him. She agreed and said, "[J]ust, please, take the ties off." He cut the ties from her wrists with a pair of scissors, but left a tie on each ankle. He again asked her to make love to him. She said she did not want to because her ribs were broken and her head hurt. He responded, "You have to," waited for a few minutes, then pulled her on top of him. Although she told appellant not to put his penis in her vagina, he did so. She did not participate, and appellant stopped after a few minutes, saying, "It really doesn't matter anyway. It's over." He lifted her and threw her onto her side of the bed. She was in pain and cried harder. He used zip ties to attach her wrist to his wrist and told her to "shut up and go to sleep."

When Rebecca awakened the next morning (Sunday), appellant was standing over her. He gave her water and pain medication and offered her coffee. He awakened her during the day to check on her, and she resumed sleeping.

On Monday, at 6:30 a.m., Rebecca heard the alarm. Appellant removed a zip tie that had connected their wrists. He again offered her coffee. Pulling back the bed covers, he said, "Oh, my god, what have I done." He put some Bengay on her bruises and brought her some soup. On Monday night, appellant got into bed and zip-tied her to him. He told her that he could not let her go free because she would "get [him] in trouble."

On Tuesday, appellant awakened, cut the zip ties, and insisted that Rebecca get out of bed. He helped her leave the bed, use the toilet, shower, and wash her hair. She saw dried blood on her left nipple. She returned to bed but arose to make coffee for appellant at his request. She returned to bed and remained there for most of the day, except while answering the door for a restaurant manager who delivered her daughter's purse.

On Wednesday, appellant cut the ties from Rebecca and told her to do laundry because they needed clean towels and white socks. She looked in the mirror and saw that her left eye was very black, the left side of her mouth was bruised, and the right side of her neck was swollen. She photographed her face with a disposable camera. At appellant's direction, she applied makeup to cover the bruises. Wearing sunglasses, she walked slowly toward the laundry room. It took her 45 minutes to get there because of her broken ribs and pounding head. She saw a few neighbors on her way to and from the laundry room. When she returned to the apartment, appellant was gone. She did not call the police or 911 because her cell phone was broken, she was afraid of appellant, and she believed that he monitored the land line phone.

The people who saw Rebecca after the June 29, 2002, assault included her neighbors, her daughter and a restaurant manager. The neighbors did not recall that Rebecca's face was bruised, but they noticed that she was walking very slowly, with a limp. Rebecca's demeanor was different than it had been before June 29 in that she kept her head down and did not say hello. None of the neighbors recalled having heard any screaming from appellant's apartment from June 29 through July 6.

Rebecca's daughter did not notice any injuries on Rebecca's face when she saw her in mid-July. She did notice that Rebecca had a hard time walking and breathing and acted as if her rib area hurt. With the help of her daughter, Rebecca moved from the Westlake Village apartment in July, after appellant left town on a business trip.

Appellant's former girlfriend testified that she and appellant were in a relationship from February 1998 until late 1999, and lived together during the last three months of their relationship. Before they lived together, appellant was a "perfect gentleman," who read poetry to her, cooked for her, and was tender and loving. After they lived together, he became physically violent with her. He poured refrigerated water on her while she slept; threw knives at her while she was in bed; knocked her down and strangled her several times, sometimes causing her to lose consciousness; threw her naked from their apartment into the hallway; demanded anal sex; placed his hand in her vagina; and bit her back, causing it to bruise. One evening, after drinking wine and arguing with her, appellant slapped her across the face, picked her up, threw her in the kitchen sink, hit her on the head with a colander, ripped off her dress and burned it.

Gail Pincus, Ph.D., an expert on the subject of "intimate partner battering," formerly called "battered women's syndrome," explained the syndrome. Dr. Pincus did not speak to any of the witnesses in appellant's case, and she not know Rebecca.

"Domestic violence" refers to the physical, sexual and emotional abuse perpetrated by one partner on the other partner in an intimate relationship. The battered partner (or victim) makes accommodations to endure the relationship. The batterer uses tactics to control the relationship and maintain control over the victim.

Batterers are often charming, romantic individuals, who create a situation where the victim becomes so dependent on the batterer that she cannot leave the relationship. Male batterers are typically jealous. When a batterer feels that he may lose control of the relationship, he may erupt "like a volcano." Batterers often use coercive tactics, including threats and intimidation, and force the victim to view pornographic material and try the things shown in that material. Emotional abuse includes belittling, insulting and isolating a victim, as well as depriving her of the authority to make financial decisions. Female victims often continue to have sexual relations with, and retain a feeling of love for, their batterers.

Defense Case

The restaurant manager who delivered a purse to Rebecca in early July did not observe anything unusual about her or think that she looked as if she had been beaten. Occupants can hear conversations through the walls in appellant's apartment building.

Mai De Barra met appellant in April or May of 2004, when he was working in Ireland. They dated and soon began living together. They stopped living together after appellant's arrest in July 2004. Appellant was never violent toward De Barra, and he never forced her to commit any sexual act against her will.

Dwayne Becker, an expert forensic chemist, calculated that if appellant had consumed the amount of wine described by Rebecca on the date of the assault, his blood alcohol level would have been within the range of 0.34 to 0.48 percent. At those levels, a person's motor skills would usually be severely impaired and the person would be "falling down drunk."

DISCUSSION

Instructional Issues

The Court Was Not Required to Give the Jury a Lesser-Included Offense Instruction

Appellant argues that the trial court erred by failing to instruct the jury on the necessarily lesser-included offense of misdemeanor false imprisonment. We disagree.

Appellant was charged with having violated section 236, false imprisonment by violence, on or about June 29, 2002. The court gave the jury an instruction defining felony false imprisonment, which requires the prosecution to prove that the restraint, confinement or detention was accomplished by violence or menace. Appellant declined the court's offer of a lesser-included offense instruction defining misdemeanor false imprisonment. The trial court must instruct the jury on a lesser-included offense when the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence that the offense was less than that charged. (People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Breverman (1998) 19 Cal.4th 142, 154, 162; People v. Matian (1995) 35 Cal.App.4th 480, fn. 4.) In this case, there was no evidence that the false imprisonment was not a felony.

Appellant argues that the jury could have found that he committed a misdemeanor false imprisonment because Rebecca had testified that he bound their wrists together on several nights after June 29, 2002. Relying on People v. Matian, supra, 35 Cal.App.4th at page 487, appellant argues that such conduct constituted misdemeanor false imprisonment because appellant used only the minimum force needed to effectuate the restraint. This argument fails because it depends upon the erroneous premise that "[t]he People did not make an election as to which of the specific incidents of binding they were relying upon." In claiming that no such election was made, appellant cites the prosecutor's comments that appellant bound Rebecca more than once. He also asserts that the jury was given a "generic verdict form."

Taken together, the verdict forms, the information, and the prosecution's closing argument reflect that the prosecution made an unequivocal election to rely on the June 29th binding incident. The verdict form states: "We, the Jury[,] in the above-entitled action, find the defendant, CARLO PARLANTI, GUILTY of a violation of section 236 Penal Code, FALSE IMPRISONMENT BY VIOLENCE, as alleged in Count 3 of the Information." (Italics added.) Count 3 of the information charged appellant with committing false imprisonment on or about June 29, 2002. In closing argument, the prosecutor referred to the binding that took place on June 29, when appellant also slapped, kicked, beat and raped Rebecca. The prosecutor clarified that when he argued: "[W]hen you look at all the evidence, there's only one reasonable conclusion you can come to, and that is the defendant . . . beat, bound, and raped Ms. [W.] on June 29th." The court did not err by failing to give the jury a lesser-included offense instruction defining misdemeanor false imprisonment.

The Court Had No Duty to Give CALJIC No. 9.35.1, the Limiting Instruction

Concerning Expert Testimony on "Intimate Partner Battering"

Appellant also argues that the court had a sua sponte duty to instruct the jury with CALJIC No. 9.35.1, the instruction "admonishing them that they could not use the testimony of the battered spouse expert as evidence to prove the occurrence of the act or acts of abuse which formed the basis of the charged crimes." Expert witness Dr. Pincus testified about "intimate partner battering," which has been defined as "'"a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives."'" (People v. Humphrey (1996) 13 Cal.4th 1073, 1083-1084.)

The purpose of the battered partner limiting instruction is to prevent the jury from inferring that the victim has been diagnosed with a syndrome that presupposes the abuse occurred. Dr. Pincus told the jury she had not talked to Rebecca or any other witness, and that "intimate partner battering" was not a diagnosis. Given the general nature of Dr. Pincus's testimony, there is no likelihood the jury would have drawn the improper inferences that CALJIC No. 9.35.1 is designed to prevent. It is also not reasonably probable that the jury misused her testimony to convict appellant. In fact, trial counsel reminded the jury that appellant did not fit the profile of the typical batterer with a need for authority and control in that he had given Rebecca the power of attorney over his financial affairs. (See People v. Housley (1992) 6 Cal.App.4th 947, 959 [failure to give limiting instruction on child sexual abuse accommodation syndrome was harmless error].) The absence of CALJIC No. 9.35.1 in this case was harmless because it is not reasonably probable that the jury misused Dr. Pincus's testimony to convict appellant. (See People v. Watson (1956) 46 Cal.2d 818, 836; Housley, at p. 959.)

The Trial Court Properly Instructed the Jury with CALJIC No. 2.50.02

Appellant's former girlfriend testified that she and appellant were in a relationship from February 1998 until late 1999, and lived together during the last three months of their relationship. Before they lived together, appellant was a "perfect gentleman," read poetry to her, cooked for her, and was tender and loving. After they lived together, appellant became physically violent. Among other things, he threw knives at her while she lay in bed; strangled her on several occasions, sometimes causing her to lose consciousness; threw her naked from their apartment into the hallway; demanded anal sex; and placed his hand in her vagina over her objection.

Having admitted evidence that appellant had committed prior acts of domestic violence against his former girlfriend, the trial court instructed the jury regarding the appropriate use of such evidence with CALJIC No. 2.50.02 (2002 rev.). CALJIC No. 2.50.02 advised the jurors that such evidence was admissible to prove appellant had a disposition to commit the same or similar offenses; and that if the jurors determined by a preponderance of the evidence that appellant had this disposition, they could infer that he was guilty of the crimes charged in this case. The instruction also specifically stated that proof of a prior domestic violence offense by a preponderance of the evidence was not sufficient to prove appellant's guilt of the charged crimes beyond a reasonable doubt but was "simply one item for [jurors] to consider, along with all other evidence, in determining whether [appellant had] been proved guilty beyond a reasonable doubt of the charged crime."

Appellant challenges CALJIC No. 2.50.02 on the ground that it allowed the jury to convict him on a lesser standard than proof beyond a reasonable doubt. Our Supreme Court rejected a similar challenge to CALJIC No. 2.50.01, a parallel instruction concerning the proper use of evidence of prior sexual offenses under Evidence Code section 1108. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013, 1016.) We reject appellant's argument for the reasons discussed in Reliford. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

The Trial Court Was Not Required to Give the Jury a "Mayberry" Instruction

Appellant also contends that the trial court erred by failing to instruct the jury with a "Mayberry instruction" that he was not guilty of rape if he entertained a reasonable good faith belief that the victim consented to sexual intercourse. (See People v. Mayberry (1975) 15 Cal.3d 143, 154-155 (Mayberry).) A court has a sua sponte duty to give a Mayberry instruction "'"only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case."'" (People v. Maury (2003) 30 Cal.4th 342, 424.) The Mayberry defense has a subjective component and an objective component. In order to establish the subjective component, the defendant must adduce evidence of the victim's equivocal conduct on the basis of which the defendant honestly and in good faith believed that the victim consented to sexual intercourse. (People v. Williams (1992) 4 Cal.4th 354, 360-361.) The objective component asks whether the defendant's mistaken belief in the victim's consent was reasonable under the circumstances. (Id. at p. 361.)

Appellant argues that he could reasonably have believed that Rebecca consented to have intercourse despite her repeated refusals to do so on June 29, 2002. Appellant bases this argument in part on an October 2, 2001, e-mail from Rebecca to appellant, in which she said that if she told him to stop when they were "making crazy love," he should not stop. Rebecca testified that the e-mail described a dream. That e‑mail does not suggest that Rebecca consented to have sexual intercourse with appellant nearly a year later, on June 29, when he hit, slapped, kicked, threw, bound and otherwise abused her, and she repeatedly told him that she did not want to "make love."

Respondent argues that the jury would have rejected a Mayberry defense because it gave credence to Rebecca's version of the events on June 29, as reflected by its finding that appellant inflicted corporal injury upon her. Appellant argues that because corporal injury may be minor, the jury may not have given credence to Rebecca's testimony regarding appellant's violent behavior on June 29. We disagree. Rebecca testified that appellant repeatedly kicked her ribs, and hit, slapped, choked, threw and bound her before he raped her. Testimony from other witnesses supports portions of Rebecca's testimony: Rebecca's demeanor changed after June 29; she had great difficulty walking in early July; Rebecca's daughter noticed that Rebecca acted as if her ribs hurt when she saw her in mid-July; and the doctor who examined Rebecca on July 22 found that two of her ribs were broken and concluded that those fractures could have dated from June 29, 2002.

There was not substantial evidence to support the Mayberry defense, and the court had no sua sponte duty to give a Mayberry instruction. (People v. Maury, supra, 30 Cal.4th at p. 424.) Moreover, any error in failing to give a Mayberry instruction must have been harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 502-503, 504-507.)

Appellant Has Not Established that He Received Ineffective Assistance of Counsel

Appellant claims that trial counsel provided ineffective assistance by failing to request a Mayberry instruction and CALJIC No. 9.35.1. A defendant claiming ineffective assistance of counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that the outcome would have been different absent counsel's ineffective representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Hawkins (1995) 10 Cal.4th 920, 940, overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110.) To show deficient performance in a direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Williams (1997) 16 Cal.4th 153, 215; People v. Bolin (1998) 18 Cal.4th 297, 333.)

The record does not disclose the lack of a rational tactical purpose for counsel's failure to request CALJIC No. 9.35.1. (People v. Williams, supra, 16 Cal.4th at p. 215.) Counsel might have believed that CALJIC No. 9.35.1 would lead the jury to assume that Rebecca was a battered woman. (See People v. Brown (2004) 33 Cal.4th 892, 902.) "A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide." (People v. Maury, supra, 30 Cal.4th at p. 394.) Nor does the record disclose the lack of a rational tactical basis for counsel's failure to request a Mayberry instruction. (Williams, at p. 215.) As we noted above, it is not reasonably probable that appellant would have obtained a more favorable result if counsel had requested either instruction. Therefore, appellant cannot establish ineffective assistance of counsel based on counsel's failure to request those instructions. (Strickland v. Washington, supra, 466 U.S. 668; People v. Hawkins, supra, 10 Cal.4th 920.)

Sentencing

Appellant argues that the trial court incorrectly sentenced him to an upper term sentence for rape because the jury did not make the factual findings that the court used to select the upper term. Appellant asserts that Blakely v. Washington (2004) 542 U.S. 296, Apprendi v. New Jersey (2000) 530 U.S. 466, Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [2007 WL 135687], and federal constitutional principles of due process of law and trial by jury require that the jury determine beyond a reasonable doubt the factual findings used by the trial court to impose an upper term of imprisonment. The United States Supreme Court recently held that a judge may not impose an upper term sentence because the aggravating sentencing factors to support such a sentence must be tried by a jury. (Cunningham, supra.)

We affirm the judgment, vacate the sentence, and remand the matter for resentencing. (Cunningham v. California, supra, 549 U.S. ___ [2007 WL 135687].) The trial court shall forward the amended abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Law Offices of Simmons & Koester, James Koester for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Lawrence M. Daniels, Supervising Deputy Attorneys General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.