P. v. Lofton

Filed 4/19/06 P. v. Lofton CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed.

Daniel G. Koryn, under appointment by the Court of Appeal, and Koryn & Koryn for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Shawn McGahey Webb, Deputy Attorney General, for Plaintiff and Respondent.

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Donald Lofton appeals from the judgment entered following a jury trial in which he was convicted of three counts of forcible rape, with further findings that the rapes occurred during the commission of a burglary and that he used a deadly weapon and inflicted great bodily injury upon his victim. Defendant contends that evidence of an uncharged offense was improperly admitted, the jury should have been instructed on good faith belief in consent, and instruction on witness credibility was improper. We affirm.

BACKGROUND

In the early morning hours of December 29, 1996, 53-year-old Jane D. (Jane) was asleep in the condominium where she lived with her daughter and three grandchildren when defendant entered Jane's bedroom. Defendant put a blanket and pillows over Jane's face. He said he would kill her if she made a sound and told her to remove her clothing. Jane did so, and over a three-hour period defendant committed three separate acts of forcible rape. During the rapes, defendant also severely cut Jane's finger with a knife.

After the first rape, defendant asked Jane with whom she lived. Jane responded that she lived with her daughter but falsely stated that her daughter was a young girl. When defendant indicated he wanted to have intercourse again, Jane begged him not to, stating that she was religious and that she worked in an AIDS clinic and might be infected. She also said that she was married and that her husband would be coming home soon. At one point defendant told Jane that no woman had been this nice to him before. When the rapes were completed, defendant told Jane to take a shower and not to call the police.

Jane called the police and reported the incident. Investigation established that the assailant had entered Jane's condominium through a sliding door that had been improperly installed. Jane was not able to identify a photograph of the assailant and no prosecution was brought. Years later, in September 2003, law enforcement personnel determined that the assailant's DNA matched that of defendant. And at trial in 2004, Jane was able to identify defendant based on his face and voice. (Defendant had been staying in the same condominium complex as Jane at the time of the incident, but Jane did not know him on that basis.)

The prosecution also introduced evidence of an April 2004 sexual assault committed by defendant against Sunny D. (Sunny), for which defendant had been convicted of forcible oral copulation, false imprisonment, and kidnapping, and sentenced to state prison. In that incident, defendant approached Sunny in a parking lot, grabbed her by the neck, and said he would kill her if she did not cooperate. Defendant then forced Sunny behind a planter, removed her shirt and bra, and pushed her sweat pants down. Defendant next fondled Sunny, forced her to orally copulate him, and got on top of her. They were seen by a passerby, who called a security guard. The guard came to the scene and asked what was going on. Defendant answered that he was just having fun with his girlfriend. Sunny said she was being assaulted, following which defendant fled.

Defendant, who represented himself at trial, testified in his own behalf and claimed both incidents were consensual. With respect to Jane, defendant asserted that he had met her at the condominium complex, where they talked about God. Jane told defendant that she was Mexican-American and defendant asked her to help him understand Mexican-Americans' hatred of African-Americans, such as himself. Jane invited defendant into her condominium and they talked. Among other things, they each revealed that they suffered from depression. Jane said that she was depressed because she had had a hysterectomy. Defendant told her that this â€